Kerala High Court
Dr.A.M.Backer vs The Tahsildar on 30 November, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934
WP(C).No. 24346 of 2009 (K)
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PETITIONER:
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DR.A.M.BACKER,
S/O.A.B.MUHAMMED BECK, AMALIPURATHU HOUSE, MYLOOR,
VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK,
ERNAKULAM DISTRICT.
BY ADVS.SRI.P.V.BABY,
SRI.A.N.SANTHOSH.
RESPONDENTS:
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1. THE TAHSILDAR,
KOTHAMANGALAM.
2. THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA.
3. THE DISTRICT COLLECTOR,
ERNAKULAM.
4. STATE OF KERALA, REPRESENTED BY
ITS SECRETARY TO FINANCE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SMT. LILLY K.T.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21-03-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(C).NO.24346/2009-K:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P.1: COPY OF THE CERTIFICATE DTD. 24/11/1997 ISSUED BY THE VILLAGE
OFFICER, VARAPPETTY.
EXT.P.2: COPY OF THE CERTIFICATE NO.A1.30/97 ISSUED BY THE SECRETARY,
VARAPPETTY GRAMA PANCHAYAT.
EXT.P.3: COPY OF THE CERTIFICATE DTD. 06/12/07 ISSUED BY THE SECRETARY,
VARAPPETTY GRAMA PANCHAYAT.
EXT.P.4: COPY OF THE CERTIFICATE DTD. 29/10/2008 ISSUED BY THE BRANCH
MANAGER, STATE BANK OF INDIA, MUVATTUPUZHA BRANCH.
EXT.P.5: COPY OF THE ASSESSMENT ORDER IN FORM V DTD. 27/06/2007 ISSUED
BY THE R.1.
EXT.P.6: COPY OF THE ASSESSMENT ORDER IN FORM VI DTD. 27/06/2007 ISSUED
BY THE R.1.
EXT.P.7: COPY OF THE APPEAL MEMORANDUM DTD. 25/07/2007 FILED BY THE
PETITIONER BEFORE THE R.2.
EXT.P.8: COPY OF THE ORDER DTD. 27/02/009 OF THE R.2.
EXT.P.9: COPY OF THE REVISION PETITION DTD. 18/03/2009 FILED BY THE
PETITIONER BEFORE THE R.3.
EXT.P.10: COPY OF THE ORDER DTD. 25/07/2009 OF THE R.3.
EXT.P.11: COPY OF THE ASSESSMENT ORDER IN FORM V DTD. 06/08/2009 ISSUED
BY THE R.1.
EXT.P.12: COPY OF THE ASSESSMENT ORDER IN FORM VI DTD. 06/08/2009 ISSUED
BY THE R.1.
EXT.P.13: COPY OF THE REPORTS OF THE VILLAGE OFFICER AND THE R.1.
EXT.P.14: COPY OF THE RESIDENTIAL CERTIFICATE DTD. 12/03/1998 ISSUED BY
THE SECRETARY, VARAPPETTY GRAMA PANCHAYAT.
EXT.P.15: COPY OF THE OWNERSHIP CERTIFICATE DTD. 12/03/1998 ISSUED BY THE
SECRETARY, VARAPPETTY GRAMA PANCHAYAT.
EXT.P.16: COPY OF THE METER CARD ISSUED FROM THE KERALA STATE
ELECTRICITY BOARD.
W.P.(C).NO.24346/2009-K:
RESPONDENTS' EXHIBITS:
EXT.R2.A: COPY OF THE CERTIFICATE DTD. 23/09/2009.
EXT.R2.B: COPY OF THE CERTIFICATE DTD. 23/09/2009.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
P.R. RAMACHANDRA MENON J.
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W.P(C) No. 24346 of 2009
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Dated, this the 21st day of March, 2012
JUDGMENT
The petitioner is before this Court, being aggrieved of the fixation of laxury tax under Section 5A of the Kerala Building Tax. The case of the petitioner is that, the building was constructed much earlier to 01.04.99, the date on which the charging provision i.e. Section 5A took its breath for the first time.
2. According to the petitioner, the building was constructed after availing loan from the State Bank of India and the last installment was disbursed to the petitioner only after completion of the construction of the building as borne by Ext. P4 certificate issued by the Bank in this regard, wherein it is mentioned that the construction of the building was completed on 21.01.1998. Reliance is also sought to be placed on Ext. P3 certificate issued on 06.12.1997 by the concerned local authority, wherein the completion of the W.P.(C) No. 24346 of 2009 : 2 : building and assignment of the building numbers have been conceded. This being the position, it is very much discernible that the building was constructed prior to 01.04.1999 and as such the petitioner is not liable to be assessed under section 5A of the Act.
3. Yet another contention raised is with regard to the plinth area, that the building is actually having lesser plinth area than the requisite extent of 278.7 square metres, as specified in the Statute, for imposing the liability under Section 5A. It is contended that, without any regard to the actual facts and figures, the assessment order was passed by the first respondent, that too including the area of the outhouse, garage etc. which is actually contrary to the Statute and the binding judicial precedents. This made the petitioner to challenge the assessment order by filing an appeal before the second respondent, which did not yield any positive result, as borne by Ext. P8 appellate order. The petitioner further W.P.(C) No. 24346 of 2009 : 3 : pursued the matter by filing Ext. P9 revision petition before the 3rd respondent, who considered the same and rejected, but for directing the assessing authority to delete the 'garage portion' and to modify the assessment accordingly. Pursuant to the revisional order passed by the 3rd respondent, modified assessment order was passed by the first respondent, as per Ext.P11, fixing the total plinth area as 282.97 square metres followed by Ext. P12 demand, which are under challenge in this writ petition.
4. The first respondent has filed a counter affidavit, stating that the building constructed by the petitioner, as referred to in Ext. P3, was having only much lesser plinth area of about 112 square metres as borne by Exts. R2(a)/R2(b) certificates issued by the local authority and that the said building was stated as having constructed 9 years ago. With reference to the said documents and also seeking to sustain the impugned orders, it is stated that the total plinth area of W.P.(C) No. 24346 of 2009 : 4 : the present building is 306.85 square metres and after deducting the car porch area, outhouse etc. the total plinth area is reckoned only as 282.97 square metress by third respondent vide Ext. P10, which is more than the stipulated extent of 278.7 square metres to attract tax liability under Section 5A and hence no interference is warranted.
5. Heard the learned counsel for the petitioner and the learned Government Pleader in detail.
6. The learned counsel for the petitioner submits that the 'split-up figures' of fixation of plinth area was procured by the petitioner by resorting to the remedy under the Right to Information Act. With reference to the same, the learned counsel submits that, from total area of the building, if the outhouse of the building having an area of 25.92 square metres, garage having an area of 25.560 and the 'dispensary' having an area of 30.665 square metres (which is used mainly for the avocation of the petitioner) are deducted, the W.P.(C) No. 24346 of 2009 : 5 : resultant figure will not make the petitioner liable to satisfy the liability under 5A. The contention of the petitioner is that the area occupied as 'outhouse' is not liable to be assessed in view of the proviso to Sub Section (5) of Section 5. The said provision reads as follows:
"Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for any nonresidential purpose shall not be added on the plinth area of that building".
Reliance is also sought to be placed on the decision rendered by this Court in Jayakumar Vs. State of Kerala (2006 (2) KLT 34).
7. The proviso to Sub Section (5) of Section 5 stipulates that the area occupied by the structure appurtenant to the residential building, used for any non residential purpose shall not be added to the plinth area of that building. It is the specific case of the petitioner, that the out house is used to storing 'firewood', 'agricultural implements' and such other W.P.(C) No. 24346 of 2009 : 6 : items. It is also asserted that the said portion is situated at much distance from the main building, that it is in no way connected with the main building and that the said area is not made use for the more convenient enjoyment of the building as contemplated under Sub Section 5 of Section 5. By virtue of the 'proviso' to Sub section 5 to Section 5, this area is liable to be excluded, which aspect is not considered by the assessing authority.
8. After hearing both the sides and going through the materials on record, the specific case projected by the petitioner in Ext. P9 revision petition, particularly as to the fact that the building was constructed prior to 01.04.1999 and as to the lesser extent than the requisite extent for mulcting the luxury tax under Section 5A (seeking for exclusion of 'outhouse' from the said extent of plinth area) is not seen properly evaluated in Ext.P10 order passed by the 3rd respondent only refers to the actual date of construction of the W.P.(C) No. 24346 of 2009 : 7 : building/completion of the building and the consequences thereof. Going by the contents of Ext.P13, this Court finds that there is a mention of some 'return' stated as filed by the petitioner on 28.11.2006, against 'Entry 8'. Inspection is stated as conducted on the same day against Entry No.10 and the inspection report is dated 30.11.2006. The sanctity of the contents, particularly under which circumstance the return dated 28.11.2006 was filed leading to the inspection conducted on the same day and the report submitted within just 'two days' is not discernible from the Exhibits produced or from the counter affidavit; when the building construction is stated as effected prior to 01.04.1999. This aspect is not properly considered by the revisional authority as well. Similarly, the specific contention raised by the petitioner as to the eligibility to have the area of 'outhouse' to be excluded from the actual plinth area seeking the benefit of the proviso to Sub section (5) of Section 5 is also properly considered. In W.P.(C) No. 24346 of 2009 : 8 : the said circumstances, the impugned orders are set aside and the matter is remanded to the 3rd respondent for fresh consideration in the light of the above observations, particularly as to the actual date of completion of the construction/building and the claim for having the 'outhouse' excluded from the purview of plinth area defined under Section 2(k) of the Act. The proceedings as above shall be finalized, in accordance with law, of course after giving an opportunity of hearing to the petitioner at the earliest, at any rate, within two months from the date of receipt of a copy of this judgment.
The writ petition is allowed to the said extent. No cost.
Sd/ P. R. RAMACHANDRA MENON, (JUDGE) kmd