Kerala High Court
Lillykutty vs The District Collector on 10 January, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934
WA.No. 1070 of 2012 () IN WPC/719/2012
---------------------------------------
(AGAINST THE JUDGMENT IN WPC.719/2012 DATED 10-01-2012 ON THE FILE OF THIS
HONOURABLE COURT)
.....................................
APPELLANT/PETITIONER :
------------------------------------
LILLYKUTTY,
W/O.VARKEY, RESIDING AT PUNNAKUZHIYIL,
PERUMBIDARI P.O., MANNARKKAD,
PALAKKAD - 678 762.
BY ADVS.SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
SRI.K.A.ANAS
RESPONDENT(S) :
------------------------
1. THE DISTRICT COLLECTOR,
COLLECTORATE, PALAKKAD-1.
2. THE REVENUE DIVISIONAL OFFICER,
OTTAPALAM, PALAKKAD - 679 101.
3. ASSISTANT EXECUTIVE ENGINEER,
PWD SUB DIVISION, MANNARKKAD,
PALAKKAD - 678 582.
BY SRI.P.I.DAVIS, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-06-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMV
MANJULA CHELLUR (Ag.CJ)
& A.M.SHAFFIQUE, J.
----------------------------------------------------
W.A. No. 1070 of 2012
---------------------------------------------------
Dated this the 20th day of June, 2012
J U D G M E N T
MANJULA CHELLUR (Ag.CJ) Heard learned counsel for the appellant as well as learned Government Pleader.
2. The appellant has approached this Court in a writ petition aggrieved by the proceedings of the District Collector, Palakkad, at Ext.P5 dated 18.8.2011. It was a challenge against the orders of RDO, Ottappalam, at Ext.P3 dated 11.1.2011. It is not in dispute that, after a plan being approved by local authority, the appellant put up construction of a residential building and the plan was approved for 276.75 Sq.Mtrs. of building consisting of ground floor and first floor. Subsequently, luxury tax was imposed as per Ext.P2 taking the plinth area of the building as 297.2 Sq.Metres. Challenging the same an appeal came to be filed. During the pendency of the appeal, Senior Superintendent was deputed to inspect the building who gave measurement of the plinth W.A. No. 1070 of 2012 2 area as 291.04 Sq. Metres. Aggrieved by the said order, a revision came to be filed before the District Collector. Again, the Asst.Executive Engineer, P.W.D. Sub Division, Mannarkkad, was deputed to measure the property with prior notice to the owner. This time, the measurement was 279.37 Sq.Metres. Aggrieved by the same, a writ petition came to be filed.
3. The learned Single Judge opined that inclusion of terrace resulted in the wrong calculation as only 50% of the terrace and 50% of the veranda had to be taken into consideration for assessment of the plinth area. However, the learned Single Judge rejected the plea of the writ petitioner on the ground that both authorities have concurrently found area of the building attracted luxury tax and different stand was taken at different points of time so also on the ground that writ petitioner took up different stand at various stages.
4. It is not in dispute that the Kerala Municipality Building Rules, 1999 provide what parts of the building to be included for calculating floor area i.e. Rule 8. Section 2(k) of the Kerala Building Tax Act defines what is plinth area and Rule 8 of Kerala Municipality Building Rules indicates how calculation of floor area has to be done?. The main grievance of the W.A. No. 1070 of 2012 3 appellant seems to be that total measurement of terrace and veranda cannot be taken into consideration to arrive at the measurement of floor area as 50% of terrace and 50% of veranda alone have to be calculated. But the details furnished at Ext.P5 does not indicate whether it was 50% of terrace and 50% of veranda or total measurement of veranda and terrace was calculated. If only split up figures were given by the Asst. Executive Engineer of each of the floor i.e. the ground floor and the first floor, the things would have been cleared. Therefore we are unable to make out from Ext.P5 what exactly was the nature of calculations done by the Assistant Executive Engineer. In that view of the matter, as there are four different measurements at different points of time, including the sanctioned plan, we are of the opinion that in the interest of justice the matter deserves to be remitted back to the District Collector, the revisional authority, who is the final fact finding authority to make proper assessment of the building tax with reference to S.2(k) of the Tax Act and Rule 8 of the Building Rules of 1999.
Accordingly, this appeal is disposed of setting aside the orders of the learned Single Judge and also the District Collector W.A. No. 1070 of 2012 4 at Ext.P5. The District Collector, Palakkad, shall direct fresh measurement to be taken by the P.W.D. with prior notice to the appellant and then assess the building tax on the property of the appellant. The above exercise has to be completed within a period of six months from the date of receipt of a copy of this judgment.
MANJULA CHELLUR (ACTING CHIEF JUSTICE) A.M.SHAFFIQUE (JUDGE) rka