Vijayan Pillai v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` WEDNESDAY, THE 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 7443 OF 2018`** ## **`PETITIONER:`** ``` VIJAYAN PILLAI AGED 62 YEARS S/O.KUNJURAMAN NAIR, RESIDING AT UTHRAM HOUSE, MEDAMUKKU, KAYAMKULAM BY ADV SRI.A.SHAFEEK (KAYAMKULAM) ``` ## **`RESPONDENTS :`** |**`1`**|**`THE STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY THE REVENUE SECRETARY,SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM, 695001`**| |**`2`**|**`THE DISTRICT COLLECTOR`**| ||**`ALAPPUZHA 688001`**| |**`3`**|**`THE REVENUE DIVISIONAL OFFICER`**| ||**`CHENGANNUR 689121`**| |**`4`**|**`THE TAHSILDAR`**| ||**`KARTHIKAPPALLY TALUK, HARIPPAD, 690514`**| |**`5`**|**`THE VILLAGE OFFICER`**| ||**`VILLAGE OFFICE, PATHIYOOR, KAYAMKULAM 690502`**| ||**`SMT.RESMITHA R CHANDRAN-GP`**| |**`THIS`**|**`WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON`**| |**`14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`**|| ``` WP(C) NO. 7443 OF 2018 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 14[th] day of June, 2023** This writ petition is filed seeking the following prayers: _“(i) Issue a writ of certiorari or any other appropriate writ or order setting aside Exts.P6, P7, P8, P11, P13 & P14._ _(ii) Issue a writ of mandamus or appropriate writ or order compelling the respondents to pass revised Assessment Order excluding the temporary roofing in open area made by the petitioner for hardware and granite, under the Act, 1975._ _(iii) Declare that the temporary roofing in open area without flooring and side walls would not come under the definition of building under S.2(e) of the Act of 1975._ _(iv) Declare that the assessment of tax on the basis of the plinth area treating all the constructions like temporary and permanent as equal is illegal, unreasonable and unconstitutional;_ _(v) Declare that Section 2(e), 5 and Schedule of the Act of 1975 to the extent to which it permits fixation of tax on the temporary roofings like Exts.P1 & P2 are illegal, unreasonable and unconstitutional._ ” 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner had obtained a building permit for an office having an area of 2000 square feet and a hardware shop and a building having an area of ``` WP(C) NO. 7443 OF 2018 ``` ``` 3 ``` 197 square feet for a granite showroom. It is submitted that appurtenant to the showroom, the petitioner had put up a temporary shed using GI pipes and sheets without any flooring or side walls and that the said structure, which has only a temporary roofing, would not come under the definition of a building under Section 2(e) of the Kerala Building Tax Act, 1975 (hereinafter referred as ‘the Act’). It is stated that Exts.P6 and P8 assessments have been effected treating the said shed also as part of the building and that assessment has been completed taking note of the entire area, which is not justified. It is contended that the appeal and revision petition filed by the petitioner have also been dismissed and that the petitioner is left with no further remedies. 4. The respondents have placed a counter affidavit on record contending that the petitioner had constructed a structure made of corrugated sheets and GI pipes in the western part of his property and the Village Officer, Pathiyoor had assessed it for building tax taking note of the total plinth area of the building constructed by the petitioner, that is, a plinth area of 1219.90m[2] . It is submitted that Section 7(1) of the Act mandates filing of a return. However, since no return was ``` WP(C) NO. 7443 OF 2018 ``` ``` 4 ``` submitted by the petitioner, the Assessing Authority issued Form No.III to the petitioner on 16.02.2016 under sub section (3) of Section 7 of the Act. The petitioner’s representative appeared on 29.12.2016 before the Assessing Officer for a hearing and sought time to submit records pertaining to the building. It is submitted that the Deputy Tahsildar(RR) was entrusted for re-checking the plinth area and the Deputy . Tahsildar(RR) reported that the building has a plinth area of 1197.23m[2] It is further contended that, on 09.03.2017, an employee of the petitioner appeared before the 4[th] respondent and agreed to remit the building tax assessed. It is submitted that thereafter, assessment order was served on the petitioner and the first instalment of Rs.93,600/- was remitted by the petitioner after which he filed an appeal stating that the structure made of GI pipes and sheets is temporary in nature and does not fall within the definition of building to be assessed to tax. It is stated that the 3[rd] respondent inspected the building in person and reassessed the plinth area as 1053.3m[2] and disposed of the appeal reiterating that the structure is a building for the purpose of Section 2(e) of the Act and directing the petitioner to pay the balance amounts. The ``` WP(C) NO. 7443 OF 2018 ``` ``` 5 ``` petitioner had thereafter submitted a revision petition before the District Collector which was also considered and disposed of after hearing the petitioner’s counsel on 07.11.2017. It was found that the District Collector, after verifying and examining the statutory provisions, had found that the building is being used for commercial purposes and is not temporary in nature and the revision was also dismissed. It is submitted that since there is no exemption for a permanent construction in the nature carried out by the petitioner from the definition clause in the Act, there is no illegality in the assessment made. 5. The learned counsel for the petitioner submits that the assessment has been made in a printed form and that the petitioner had not been informed of the reasons for the assessment. It is contended placing reliance on a judgment of this Court in **Abraham Thomas and others v. State of Kerala and others** [2012 (2) KHC 792] that the assessment order being made in a printed form was not tenable. 6. Having considered the contentions advanced, I notice that the definition of building as provided in Section 2(e) of the Act reads as follows: ``` WP(C) NO. 7443 OF 2018 ``` ``` 6 ``` _2.(e)"building"means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure._ _Explanation 1 - In the case of buildings constructed for providing housing accommodation for workers and their families residing in plantations, in pursuance of section 15 of the Plantations Labour Act, 1951 (Central Act 69 of 1951) or buildings constructed under the Government of India Subsidised Housing Scheme for industrial workers, each part of a building providing or intended to provide accommodation for a worker or a worker and his family shall be deemed to be a separate building._ _Explanation 2 - Where a building consists of different apartments or flats owned by different persons, and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building;_ 7. Plinth area as defined in Section 2(k) of the Act is as follows: _2.(k)"plinth area"means the area included in the floor of a building and where a building has more than one floor the aggregate area included in all the floors together:_ _Provided that in the case of a building referred to in the Explanation 2 to clause (e), the plinth area shall be calculated separately._ 8. Section 3 of the Act provides for the exemptions from the charge to tax. Admittedly, the construction made by the petitioner is not covered by the exemptions provided either in the definition clause or in Section 3 of the Act. The learned counsel for the petitioner would ``` WP(C) NO. 7443 OF 2018 ``` ``` 7 ``` thereafter draw my attention to Section 6 of the Act to contend that the Act calls for determination of plinth area on the basis of the plinth area as specified in the plan approved by the local authority or such other authorities as may be specified in this behalf and verified by the Assessing Authority in such manner as may be prescribed. It is therefore contended that since the plan approved by the local authority contained only the plinth area of the permanent structure, the assessment made by the Assessing Authority, taking note of the entire plinth area of the temporary shed also, was illegal. It is further contended that the entire cost for the construction of the temporary shed was only Rs.25 Lakhs and that the building tax charged amounts to almost the equivalent amount. It is therefore contended that the charge is completely unjustified. 9. This Court has considered the issue of chargeability to building of a canopy housing a petroleum outlet in **All Kerala Federation of Petroleum Traders v. State of Kerala** [2004 KHC 157]. Relying on the definition of building under Section 2(e) of the Act, this Court held that the contention of the petitioner that a canopy built to house ``` WP(C) NO. 7443 OF 2018 ``` ``` 8 ``` petroleum outlets cannot be assessed as building under the Act cannot be accepted. It is stated that no clarification from the Government is required for the Assessing Authority to make assessment of a building which comes within the definition of building under the Act. It was held that an assessment with reference to the floor area covered by the canopy and the other structures in terms of Section 2(k) of the Act would have to be made and such assessment would be liable to be upheld. 10. In the instant case also, though the petitioner has a specific case that the construction only involves GI pipes and a roofing, the contentions and the materials produced by the petitioner would itself show that the entire area is being used for commercial purposes. In view of the definition of building under Section 2(e) of the Act, I am of the opinion that the other contentions raised by the petitioner cannot be accepted. Further, since no justification or specific reasoning was required in the light of the admitted position that the floor area of the canopy erected by the petitioner has been assessed as a building under Section 2(e) of the Act, I am of the opinion that the contention raised by ``` WP(C) NO. 7443 OF 2018 ``` ``` 9 ``` the petitioner that the assessment was in a printed form also cannot make any difference to the situation. In the above view of the matter, I am of the opinion that the challenge raised in this writ petition cannot be accepted. This writ petition therefore fails and the same is, accordingly, dismissed. It is submitted by the learned counsel for the petitioner that the petitioner had paid 50% of the amounts due as condition for availing the statutory remedies. In case the petitioner makes a representation before the respondents with a request to pay the balance due in instalments, the same shall be appropriately considered by the respondents taking note of the fact that the writ petition was pending with an interim order of stay ordered therein. ``` Sd/- ``` ## **`ANU SIVARAMAN`** ## **`JUDGE`** ``` NP ``` ``` WP(C) NO. 7443 OF 2018 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 7443/2018`** |**`PETITIONER’S EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`PHOTOGRAPH SHOWING THE STRUCTURE ERECTED IN`**| ||**`THE HARDWARE SHOWROOM`**| |**`EXHIBIT P2`**|**`PHOTOGRAPH SHOWING THE STRUCTURE CONSTRUCTED`**| ||**`AT THE GRANITE SHOW ROOM`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE NOTICE DATED 16.12.2016`**| ||**`ISSUED BY THE 4TH RESPONDENT`**| |**`EXHIBIT P4`**|**`TRUE COPY OF THE NOTICE SENT BY THE 4TH`**| ||**`RESPONDENT`**| |**`EXHIBIT P5`**|**`TRUE COPY OF THE REPLY DATED 14.02.2017`**| ||**`SUBMITTED BY THE PETITIONER`**| |**`EXHIBIT P6`**|**`TRUE COPY OF THE ORDER DATED 10.03.2017`**| ||**`PASSED BY THE 4TH RESPONDENT`**| |**`EXHIBIT P7`**|**`TRUE COPY OF THE ORDER DATED 22.07.2017`**| ||**`PASSED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P8`**|**`TRUE COPY OF THE ORDER DATED 21.07.2017`**| ||**`ISSUED BY THE 4TH RESPONDENT`**| |**`EXHIBIT P9`**|**`TRUE COPY OF THE JUDGMENT DATED 30.08.2017 IN`**| ||**`WPC.NO. 28759/2017`**| |**`EXHIBIT P10`**|**`TRUE COPY OF THE REVISION FILED BY THE`**| ||**`PETITIONER CHALLENGING EXT P7 ORDER`**| |**`EXHIBIT P11`**|**`TRUE COPY OF THE ORDER DATED 24.11.2017`**| ||**`ISSUED BY THE 3RD RESPONDENT DISMISSING THE`**| ||**`APPEAL`**| |**`EXHIBIT P12`**|**`TRUE COPY OF THE REVISION FILED BY THE`**| ||**`PETITIONER`**| |**`EXHIBIT P13`**|**`TRUE COPY OF THE ORDER DATED 21.11.2017 OF`**| ||**`THE 2ND RESPONDENT DISMISSING EXT P10`**| |**`EXHIBIT P14`**|**`TRUE COPY OF THE ORDER DATED 19.02.2018 OF`**| ||**`THE 2ND RESPONDENT DISMISSING THE EXT P12`**| |**`RESPONDENTS’ EXHIBITS: NIL`**||