Kerala High Court
Mohammed Ashraf vs State Of Kerala on 12 January, 2017
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 21ST DAY OF DECEMBER 2017/30TH AGRAHAYANA, 1939
WA.No. 2508 of 2017 () IN WP(C).37213/2016
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AGAINST THE JUDGMENT IN WP(C) 37213/2016 of HIGH COURT OF KERALA
DATED 12-01-2017
APPELLANT/PETITIONER :
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MOHAMMED ASHRAF,
AGED 68 YEARS, S/O. HYDROSE KUTTY,
PUTHEN PURACKAL, ERUVA, PATHIYOOR, KAYAMKULAM.
BY ADVS.SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENTS/RESPONDENTS :
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1. STATE OF KERALA,
REP. BY THE SECRETARY,
DEPARTMENT OF REVENUE SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. STATE OF KERALA,
REP. BY SECRETARY,
DEPARTMENT OF PUBLIC WORKS SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3. REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE,
CHENGANNUR. 689003
4. THE THASILDAR,
TALUK OFFICE, KARTHIKAPALLY. 689007
BY SR. GOVERNMENT PLEADER SRI. GOVINDAN C.K
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2017,
THE COURT ON 21.12.2017 DELIVERED THE FOLLOWING:
"CR"
A.M.SHAFFIQUE & P.SOMARAJAN, JJ
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W.A. No. 2508 of 2017
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Dated this the 21st day of December, 2017
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JUDGMENT
SHAFFIQUE, J.
This appeal has been filed by the petitioner in W.P.(C). No.37213 of 2016 challenging the judgment dated 12.01.2017, by which the learned single Judge dismissed the writ petition.
2. The short facts involved in the writ petition would disclose that the petitioner constructed a building, for which Occupancy Certificate was issued by local authority indicating that the total area is 265.26 sq.m. The building was assessed by the Village Officer for the purpose of imposing building tax under Kerala Building Tax Act 1975 (the 'Act' for short). As per Ext.P2 the Village Officer computed the plinth area at 288.26 sq.m. As per Section 5A of the Act, if the plinth area exceeds 278.7 sq.m, the owner becomes liable to pay Luxury Tax every year. The Petitioner therefore preferred an appeal before Revenue Divisional Officer challenging the order passed by the Village Officer. During the pendency of the appeal, the Tahsildar conducted a measurement and it was found that total plinth area would come to 290.99 sq m. The appeal and a further revision filed by the petitioner came to be dismissed.
W.A. No. 2508 of 2017 -2-
3. It was contended by the petitioner that the measurement of the plinth area has to be computed in accordance with Kerala Municipality Building Rules, 1999 ( hereinafter referred to as the 'Building Rules'). The learned single Judge dismissed the writ petition observing that the plinth area as defined under the Act cannot be given a different meaning and when the tax is imposed under the statute it cannot be regulated by the statutory rules issued under the Building Rules. In W.A.No.1177 of 2012 (Unnikrishnan K.K v. State of Kerala and Others) this court had held that the exclusion of 50% of open area for fixing the plinth area in accordance with the Floor Area Rules under the Building Rules was not relevant for assessment of building tax.
4. By impugning the aforesaid judgment, the learned counsel for the appellant specifically refers to Section 6 of the Act which indicates as to how plinth area has to be determined. Section 6 reads as under:
"S.6. Determination of plinth area: The plinth area of a building for the purposes of this Act, shall be the plinth area of the building as specified in the plan approved by the local authority or such other authorities as may be specified by Government in this behalf and verified by the assessing authority in such manner as may be prescribed. W.A. No. 2508 of 2017 -3-
Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for storage of firewood or for any non-residential purpose shall not be taken into account for determining the plinth area of that building."
It is therefore contended that when the local authority has assessed the plinth area of the building the same has to be reckoned for the purpose of assessing the building tax under the Act.
5. On the other hand learned Government Pleader relied on two unreported judgments of this Court. Following are the judgments.
(i) K.I. Rajappan v. Revenue Divisional Officer & Others (W.A.No.1446 of 2012). In this case it was held that the sit out or 'Verandah' (chavadi) has to be determined while arriving at the measurement of the plinth area. That was a case in which a contention was urged that the verandah and sit out cannot be taken into consideration for the propose of computing the plinth area. It was held that in view of the fact that verandah is also part of a house, it has to be considered as an erection or structure appurtenant to the building, but not used for storage of firewood or non-residential purpose.
(ii) The Judgment dated 29.6.2012 in W.A.No. 1177 of 2012 (Unnikrishnan K.K v. State of Kerala and Others). W.A. No. 2508 of 2017 -4-
In this case a similar question was raised wherein it was contended that the plinth area is to be measured based on the Municipality Building Rules which provide for exclusion of 50% of open space like balcony. This court held that the plinth area provides for exclusion of 50% is only for fixing the limit of construction in accordance with the Floor Area Rules. So far as the Building Tax Act is concerned, plinth area is defined under Section 2 (k) which means whole floor area of the building. Accordingly the said contention was repelled.
6. The plinth area is defined under the Act as under :
"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."
Being a taxing statute it has to be considered in accordance with the statute itself. Unless otherwise provided, the provisions of another statute cannot be incorporated into a taxing statute or any other statute. Section 2 (k) clearly defines what is plinth area and it apparently 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.
7. Section 6 of the Act which has been relied upon by learned counsel for the appellant is only for the purpose of ascertaining the W.A. No. 2508 of 2017 -5- plinth area as specified in the plan approved by the local authority. It does not mean that the plinth area has to be computed for the purpose of building tax and on the basis of the floor area as defined under the Building Rules. If that was the intention of the legislature, section 2(k) could have been worded differently. As rightly observed in Unnikrishnan (supra), the computation of floor area as per the building rules is for the purpose and in connection with the said Rules alone, which cannot be imported for the purpose of computing the plinth area under the Act.
Hence we find no merit in the contentions raised. The writ appeal is therefore dismissed.
Sd/-
A.M.SHAFFIQUE, JUDGE sd/-
P.SOMARAJAN, JUDGE kp