Rose James vs Village Officer
2022 Latest Caselaw 10885 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                   THE HONOURABLE MR. JUSTICE GOPINATH P.
   THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                           WP(C) NO. 7691 OF 2020
PETITIONER:

            ROSE JAMES,
            AGED 63 YEARS, W/O.(LATE) JAMES K.G.,
            KAIPILLY HOUSE, SAFA NAGAR, ETTEKKAR,
            EDATHALA NORTH - 683 561.

            BY ADVS.
                        K.LATHA
                        JESSY MANUEL



RESPONDENTS:

     1      VILLAGE OFFICER,
            VILLAGE OFFICE, ALUVA EAST - 683 101.

     2      THAHASILDAR, ALUVA TALUK,
            ALUVA - 683 101.

     3      REVENUD DIVISIONAL OFFICER,
            REVENUE DIVISIONAL OFFICE, FORTKOCHI,
            ERNAKULAM - 682 001.

     4      SECRETARY, EDATHALA GRAMAPANCHAYATH,
            EDATHALA - 683 561.

            BY ADV G.SANTHOSH KUMAR (P).



OTHER PRESENT:

            ADV. THUSHARA JAMES (SR GP),
            ADV. AMRITHA J (ADV. COMMISSIONER)


     THIS   WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.7691/2020               2


                          JUDGMENT

The petitioner has approached this Court being aggrieved

by the fact that the 2nd respondent has demanded the

payment of luxury tax in respect of a residential house

belonging to the petitioner. It is the specific case of the

petitioner that the plinth area of building in question is not

beyond the 278.7 square meter and therefore there cannot be

any levy of luxury tax on the petitioner. It is submitted that

though the petitioner filed an appeal against Ext.P5 order

before the 3rd respondent, that appeal has also been rejected

on the ground of delay.

2. The learned counsel appearing for the petitioner

submits that since luxury tax is a demand being raised from

year to year, it is open to the petitioner to challenge the

demand even for future period and the fact that the petitioner

had filed an appeal belatedly against the original order cannot

be a reason to state that the case of the petitioner cannot be

reconsidered by the 2nd respondent. It is submitted that the

petitioner has already discharged the liability towards the

luxury tax for the period from 2013-2014 till 2020-2021. It is

submitted that the question as to whether the petitioner is

liable for luxury tax for the future period may be redetermined

also taking into account the fact that the Advocate

Commissioner appointed by this Court has filed a report on

01-11-2022, which shows that the plinth area of the building is

less than the limit for payment of luxury tax.

3. The learned Government Pleader refers to the facts

and circumstances of the case and points out to the provisions

of the Kerala Building Tax Act,1975, relating to the levy of

luxury tax. It is submitted that there cannot be any dispute

that luxury tax payable if the plinth area of the building

exceeds the limit and since the petitioner has already

discharged the liability for luxury tax from 2013-2014 to 2020-

2021, it is not in the hands of the petitioner to now suggest

that she is not liable to pay luxury tax.

4. Having heard the learned counsel appearing for the

petitioner and the learned Senior Government Pleader

appearing for the respondents and also having perused the

report filed by the Advocate Commissioner appointed by this

Court, I am of the view that the matter requires to be

reconsidered by the 2nd respondent after affording to the

petitioner an opportunity of being heard. Luxury tax is

leviable on residential buildings once the plinth area of

building exceeds the limit of 278.7 m 2. However, since luxury

tax is a levy, that is payable from year to year and since the

petitioner is seriously disputing the fact that the residential

building of the petitioner exceeds the area of 278.7 m 2 and

also considering the fact that the report filed by the Advocate

Commissioner seems to suggest that the area may be less

than the limit, I am of the view that the writ petition can be

disposed of directing the 2nd respondent to reconsider the

question as to whether the residential building of the

petitioner is to be subjected to a levy of luxury tax, after

affording to the petitioner an opportunity of being heard.

5. However considering the fact that the writ petition

was filed only in the year 2020 and also considering the fact

that the petitioner has already discharged the liability to pay

luxury tax from 2013-2014 to 2020-2021, I am of the opinion

that the redetermination by the 2nd respondent will be with

reference to future periods and not with reference to any

period for which the petitioner has already paid the luxury tax.

The petitioner shall mark appearance before the 2 nd

respondent either in person or through authorized

representative at 11 A.M on 15.11.2022 and the 2nd

respondent shall reconsider the matter as directed above

after affording to the petitioner an opportunity of being heard

and after affording to the petitioner all opportunity to show

that the plinth area of the building in question does not exceed

the limit of 278.7 m2. Since the direction is to reconsider the

matter for future periods, it is not necessary to quash the

impugned orders.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE ats

APPENDIX OF WP(C) 7691/2020

PETITIONER EXHIBITS

EXHIBIT P1 THE TRUE COPY OF BUILDING PERMIT DATED 6/1/2010 ISSUED BY THE 4TH RESPONDENT SECRETARY, EDATHALA GRAMAPANCHAYATH TO THE PETITIONER ALONG WITH BUILDING ELEVATION DETAILS.

EXHIBIT P2 THE TRUE COPY OF BUILDING TAX DETAILS OF BUILDING ID NO.50653010007965 OF THE PETITIONER'S HOUSE.

Exhibit P2A THE TRUE COPY OF THE CERTIFICATE DATED 2.3.2020 ISSUED BY THE REGISTERED ENGINEER OF URBAN AFFAIRS

EXHIBIT P3 THE TRUE COPY OF CASH RECEIPT OF RS.1709/-

PAID BY THE PETITIONER DATED 18/10/2019.

EXHIBIT P3(A) THE TRUE COPY OF CASH RECEIPT DATED 17/12/2013 PAID BY THE PETITIONER.

EXHIBIT P3(B) THE TRUE COPY OF CASH RECEIPT DATED 15/5/2015, PAID BY THE PETITIONER.

EXHIBIT P3(C) THE TRUE COPY OF CASH RECEIPT DATED 15/5/2015, PAID BY THE PETITIONER.

EXHIBIT P3(D) THE TRUE COPY OF CASH RECEIPT DATED 6/05/2016 PAID BY THE PETITIONER.

EXHIBIT P3(E) THE TRUE COPY OF CASH RECEIPT DATED 21/8/2017 PAID BY THE PETITIONER.

EXHIBIT P3(F) THE TRUE COPY OF CASH RECEIPTS DATED 10/04/2018 PAID BY THE PETITIONER.

EXHIBIT P4 THE TRUE COPY OF NOTICE OF DEMAND NO.C7 10240/13 DATED 13/06/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P5 THE TRUE COPY OF CIRCULAR NO.S.C./68089/2006 DATED 28/06/2019 ISSUED BY THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA.

EXHIBIT P6 THE TRUE COPY OF MEDICAL DISCHARGE SUMMARY CERTIFICATE OF THE PETITIONER'S HUSBAND DATED 20/2/2012.

EXHIBIT P6(A) THE TRUE COPY OF MEDICAL CERTIFICATE DATED 16/09/2017.

EXHIBIT P6(B) THE TRUE COPY OF LETTER FROM STATE BANK OF INDIA TO EMPLOYEES PF ORGANISATION.

EXHIBIT P6 (C) THE TRUE COPY OF DEATH CERTIFICATE OF THE PETITIONER'S HUSBAND.

EXHIBIT P7 THE TRUE COPY OF THE ORDER NO.C7-10240/2013 DATED 17/08/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P8 THE TRUE COPY OF COMPLAINT DATED 16/09/2013 FILED BY PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P9 THE TRUE COPY OF ORDER NO.C7-10240/2013 DATED 29/11/2014 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P10 THE TRUE COPY OF COMPLAINT FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT RDO DATED 21/12/2018.

EXHIBIT P11 THE TRUE COPY OF ORDER NO.G 36/2019 KDS DATED 11/06/2019 ISSUED BY THE THIRD RESPONDENT RDO/SUB COLLECTOR REVENUE DIVISION OFFICE TO THE PETITIONER.

EXHIBIT P12 THE TRUE COPY OF TAX RECEIPTS PAID BY THE PETITIONER DATED 21/6/2013.

EXHIBIT P12(A) THE TRUE COPY OF TAX RECEIPTS PAID BY THE PETITIONER DATED 19/9/2013.

EXHIBIT P12 B THE TRUE COPY OF TAX RECEIPTS PAID BY THE PETITIONER DATED 28/2/2015.

EXHIBIT P12 C THE TRUE COPY OF TAX RECEIPTS PAID BY THE PETITIONER DATED 9/2/2016.

EXHIBIT P12 D THE TRUE COPY OF TAX RECEIPTS PAID BY THE PETITIONER DATED 25/2/2017.

EXHIBIT P12 E THE TRUE COPY OF TAX RECEIPTS PAID BY THE PETITIONER DATED 8/2/2018.

EXHIBIT P12 F THE TRUE COPY OF TAX RECEIPTS PAID BY THE PETITIONER DATED 12/2/2019.

RESPONDENT ANNEXURES

Annexure C2 The true copy of the notice issued to Petitioner and Respondents dated 26.10.2022.

Annexure C1 The copy of the Order dated 20.10.2022 by this Honourable Court.

Annexure C4 The true copy of the approximate calculation of the buildings plinth area.

Annexure C3 The true copy of the approximate sketch of the buildings plinth area.