Kerala High Court
Charley Rodrigues vs State Of Kerala on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
WP(C) NO. 24080 OF 2021
PETITIONER:
CHARLEY RODRIGUES
AGED 84 YEARS
S/O LATE JOSEPH, RODRIGUES, 39/3089A, PALLIYIL LANE,
DIWANS ROAD, COCHIN-682 016.
BY ADVS.
PEEYUS A.KOTTAM
HRITHWIK D. NAMBOOTHIRI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT , THIRUVANANTHAPURAM-695 001.
2 DISTRICT COLLECTOR,
CIVIL STATION, KAKKANADU, KOCHI-682 030.
3 TAHSILDAR,
KANAYANNOOR TALUK OFFICE, PARK AVE, NEAR SUBHASH PARK,
MARINE DRIVE, KOCHI-682 011.
4 COCHIN CORPORATION
CORPORATION OFFICE, CANNON SHED ROAD, MARINE DRIVE,
ERNAKULAM , COCHIN-682 011, REPRESENTED BY SECRETARY
BY ADV C.N.PRABHAKARAN
SR.GP.DR.THUSHARA JAMES;ADV.C.N.PRABHAKARAN FOR R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 24080 OF 2021
2
BECHU KURIAN THOMAS, J
-------------------------------
WP(C) NO. 24080 OF 2021
--------------------------------
Dated this the 3rd day of November, 2021
JUDGMENT
Petitioner is aggrieved by the calculation of plinth area for
the building constructed by him. He alleges that the building
was completed in 2010 and while calculating plinth area for the
purpose of building tax and luxury tax, the area set apart for
parking/garage had also been included. Since the amount of
luxury tax was insignificant in those days, petitioner did not
contest or question the calculation. However, in the recent past
due to revision of luxury tax, petitioner feels aggrieved by the
alleged wrong calculation of plinth area.
2. Though petitioner never challenged the assessment
order till 2020-21, he filed a petition pointing out that the car
parking area/garage had been wrongly included as part of the
plinth area of the building.
3. It was further submitted that though applications
were filed before the District Collector and Revenue Divisional
WP(C) NO. 24080 OF 2021
Officer, no steps were initiated. While so, fearing assessment
for luxury tax for the year 2021-22, based on wrong plinth area,
petitioner filed Ext.P7 application on 04.08.2021 before the
second and third respondents, requesting to re-fix the plinth
area of the building constructed by him. Petitioner alleges that,
though pursuant to Ext.P7 a site inspection was conducted and
the respondents were convinced about the error in calculation of
plinth area, the Tahsildar informed about their inability to
correct the mistake due tot he failure of the petitioner to
challenge the original assessment order. It was submitted that
ignoring Ext.P7, respondents proceeded to impose luxury tax to
the petitioner on the basis of the same plinth area calculated
originally.
4. I have heard the arguments of Adv. Peeyus
A.Kottam, the learned Counsel for the petitioner as well as
Dr.Thushara James, the learned Senior Government Pleader on
behalf of the respondents as well as Adv.C.N.Prabhakaran, the
learned Standing Counsel for the fourth respondent.
5. The luxury tax imposed under Section 5A of the
Kerala Building Tax Act, 1975 is an imposition on a yearly basis.
WP(C) NO. 24080 OF 2021
Imposition of tax every year is based upon an assessment to be
conducted every year. Therefore, if the petitioner is aggrieved
by the plinth area of the building, on the basis of which tax had
been assessed all these years, it is certainly open to the
petitioner to seek reconsideration/re-fixation of the plinth area,
even if for the periods till that application remains concluded
and final.
6. This Court has already hold that while building tax is
a one time liability, luxury tax is a yearly liability, payable every
year. A little difference in plinth area assessed for payment of
one time building tax may not be contested by the building
owner, because, compared to the cost of dispute, the disputed
tax may be less. However, this should not stand in the way of
the building owner contesting recurring liability for luxury tax if
he is otherwise not liable. It was further observed in
Surendran V. District Collector (2010 (1) KLT1 46) that when
demand of luxury tax is raised the building owner is free to
contest the liability if the plinth area assessed is excess over the
actual, no matter he has without contest paid the building tax
on such wrong plinth area originally assessed.
WP(C) NO. 24080 OF 2021
7. Therefore, Ext.P7 application for re-fixation of the
plinth area of the petitioner's building is valid in the eye of law,
if the same relates to the period for the future years. Since,
Ext.P7 is dated 04.08.2021, it can certainly be relied upon by
the petitioner to seek a re-fixation of the plinth area for the
period 2021-2022 onwards and not for the prior periods.
Therefore, the third respondent would be, within its powers to
consider Ext.P7 and carry out re-assessment or re-fixation of
the plinth area as sought for, to enable assessment of luxury tax
for the year 2021-22 onwards.
8. In view of the above, the third respondent can be
directed to consider and pass appropriate orders to reconsider
the plinth area of the building constructed by the petitioner in
Sy.No.841 of Ernakulam village, Kanayanoor taluk for the
period 2021-22 onwards. Therefore, the third respondent shall
consider and re-fix the plinth area of the building of the
petitioner within a period of three months from the date of
receipt of a copy of this judgment.
9. It is clarified that the assessment for the period till
2020-21 remains final and shall not be questioned by the
WP(C) NO. 24080 OF 2021
petitioner under any circumstances, on the basis of the re-
fixation now directed to be carried out.
10. Needless to mention while carrying out re-fixation,
the third respondent shall take into consideration the law lay
down by this Court.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AJ/03.11.2021
WP(C) NO. 24080 OF 2021
APPENDIX OF WP(C) 24080/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE BUILDING PERMITS NO
MOPI/271/07 DATED 11.1.2008
Exhibit P2 TRUE COPY OF THE OCCUPANCY CERTIFICATE
ISSUED BY THE COCHIN CORPORATION DATED
27.5.2010
Exhibit P3 TRUE COPY OF THE APPROVED PLAN FOR THE
GROUND FLOOR ISSUED BY THE 2ND RESPONDENT
COCHIN CORPORATION
Exhibit P4 TRUE COPY OF THE ORDER OF ASSESSMENT MADE
BY THE TAHSILDAR DATED 1.12.2014
Exhibit P5 TRUE COPY OF THE PROCEEDINGS NO B3-21633/10
OF THE TAHSILDAR DATED 12.12.2014
Exhibit P6 TRUE COPY OF THE RECEIPT OF THE LUXURY TAX
FOR THE YEAR 2020-21
Exhibit P7 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER DATED 4.8.2021 TO THE 3RD
AND TH RESPONDENTS
Exhibit P8 TRUE COPY OF THE NOTICE DATED 13.9.2021
SERVED ON THE PETITIONER
Exhibit P9 TRUE COPY OF THE REQUEST DATED 16.3.2021
SUBMITTED BY THE PETITIONER BEFORE THE
REVENUE DIVISIONAL OFFICER, FORT COCHIN
Exhibit P10 TRUE COPY OF THE ORDER OF THE TAHSILDAR
DATED 3.2.2021
Exhibit P11 TRUE COPY OF THE REPORT REFERRED IN EX-P10
SUBMITTED BY THE 4TH RESPONDENT TAHSILDAR
UNDER RIGHT TO INFORMATION ACT
