Jose Paul vs The Tahsildar
2023 Latest Caselaw 11658 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
          THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
    THURSDAY, THE 16TH DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945
                          WP(C) NO. 39107 OF 2022
PETITIONER/S:

             JOSE PAUL
             AGED 55 YEARS
             S/O PAUL, MADASSERIL HOUSE, KULAPPURAM,
             KADAVOORVILLAGE, PAINGOTTOOR, KOTHAMANGALAM,
             ERNAKULAM DISTRICT-686 661.

             BY ADV JOSE JOSEPH



RESPONDENT/S:

     1       THE TAHSILDAR,
             KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686691

     2       THE REVENUE DIVISIONAL OFFICER
             MUVATTUPUZHA, ERNAKULAM, PIN - 686661

     3       THE DISTRICT COLLECTOR
             CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030


OTHER PRESENT:

             JASMINE M.M.-GP




         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 39107/2022
                                         -2-




                            JUDGMENT

The present writ petition under Article 226 of the

Constitution of India has been filed seeking the following

reliefs:

"i) call for the records of the case leading to Exts. P9 & P10 orders and Ext. P11 Demand Notice and quash the same by the issue of a writ of certiorari or any other appropriate writ or order.

(ii) declare that luxury tax under Sec. 5A of the Kerala Building Tax Act 1975 is not leviable on the residential building constructed by the petitioner which is subjected to assessment under P10 order.

(iii) Pass such other orders, direction or writ as this Honble Court may deem fit and proper in the facts and circumstances of the case."

2. This is the petitioner's second round before this

Court regarding the assessment of the building tax and luxury

tax on the building of the petitioner situated in Kadavoor

Village, Kothamangalam Taluk, Ernakulam. The petitioner W.P.(C) No. 39107/2022

had earlier filed W.P.(C) No.15282/2015 impugning the orders

passed by the Tahsildar, Appellate Authority and Revisional

Authority. This Court, vide judgment dated 07.06.2022,

disposed of the said writ petition with the following directions:

"9. In the nature of the dispute raised, I direct that, the assessing authority shall inspect the building, measure the plinth area and exclude the covered roof top which does not have walls or enclosures with grills or the like and make fresh assessment. Exts.P1, P4 & P7 orders are set aside. Based on the assessment as above, fresh demand notice shall be issued to the petitioner under Section 5A, if the property is assessable for luxury tax. The entire exercise shall be done within a period of two months from the date of receipt of a copy of this judgment."

2.1 On remand, the Assessing Authority inspected the

petitioner's residential building in his presence and took

measurements of the plinth area. The Assessing Authority

found on inspection that the first floor has a sit-out area facing

the road and a roof garden. The balance portion is laid with W.P.(C) No. 39107/2022

tiles and has been used for residential purposes. Thus, the

Assessing Authority excluded the sit-out area and roof garden

from the total plinth area of the building and found the plinth

area of the building, which is subjected to tax as 279.265 sq m.

The tax liability has been determined accordingly.

3. Learned Counsel for the petitioner submits that this

Court, in its judgment dated 07.06.2022 passed in W.P.(C)

No.15282/2015, had given specific direction to the Assessing

Authority to exclude the covered rooftop which does not have

walls or enclosures with grills or the like and to make a fresh

assessment. The order in Ext.P9 is in contravention of the said

direction given by this Court. It is further submitted that there

is no finding that the rooftop of the first floor of the petitioner

building is covered in any manner with walls, grills etc.

Therefore, the said rooftop area of the first floor should have

been excluded from the plinth area for assessing the building W.P.(C) No. 39107/2022

tax and luxury tax.

4. Ms Jasmin M M learned Government Pleader,

however, submits that the petitioner uses the rooftop of the

first floor of the building for residential purposes and merely

on the ground that walls or grills do not cover it would make

no difference for the purposes of including the said area in the

plinth area of the building for determining the tax liability

under the Kerala Building Tax Act 1975. What is required to

be seen is whether the area is used for residential purposes or

not. If the area is used for residential purposes, irrespective of

the fact that whether it is enclosed by walls or grills, etc, would

make no difference. It is further submitted that the petitioner

has not denied that this area is used for residential purposes.

In view thereof, she further submits that the impugned order

passed by the Tahsildar is neither against the law nor against

the direction issued by this Court.

W.P.(C) No. 39107/2022

5. I have considered the submissions.

5.1 Learned Government Pleader may be correct in her

submission. However, the question here is whether the

Assessing Authority has passed the fresh assessment order

strictly as per the direction given by this Court in W.P.(C)

No.15282/2015 vide judgement dated 07.06.2022.

5.2 In the last paragraph, i.e., paragraph 9, this Court

had given a specific direction to exclude the covered rooftop

of the first floor of the building, which is not enclosed by walls

and grills, etc. The impugned order would not disclose that

the rooftop area on the first floor is covered by walls or grills.

Thus, I find the order passed by the Assessing Authority on

remand is not in accordance with the directions given by this

Court in its judgment dated 07.06.2022 in W.P.(C)

No.15282/2015 and thus unsustainable.

5.3 The impugned orders in Exts.P9 and P10 and W.P.(C) No. 39107/2022

Ext.P11 demand notice are set aside. The matter is remanded

back to pass fresh orders strictly in accordance with the

directions given by this Court in paragraph 9 of the judgment

dated 07.06.2022 in W.P.(C) No.15282/2015. The Tahsildar

should pass the order within a period of one month with notice

to the petitioner.

With the aforesaid direction, the present writ petition is

allowed.

Sd/-

DINESH KUMAR SINGH JUDGE

jjj W.P.(C) No. 39107/2022

APPENDIX OF WP(C) 39107/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE ORDER OF ASSESSMENT DATED 11.12.2013 ISSUED BY THE 1ST RESPONDENT

Exhibit P2 A TRUE COPY OF THE OF THE CALCULATION SHEET OF PLINTH AREA DATED 30.07.2013 PREPARED BY THE VILLAGE OFFICER WITH MEASUREMENT OF THE CONSTRUCTED AREA ISSUED TO THE PETITIONER ON 01.02.2014

Exhibit P3 PHOTOGRAPHS OF THE ROOF GARDEN FROM DIFFERENT ANGLES

Exhibit P4 A TRUE COPY OF THE ORDER DATED 6/8/2014 ISSUED BY THE 2ND RESPONDENT

Exhibit P4(A) TRUE ENGLISH VERSION OF EXT. P4

Exhibit P5 A TRUE COPY OF THE PETITION DATED 10.09.2014 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT

Exhibit P5(A) TRUE ENGLISH VERSION OF EXT. P5

Exhibit P6 A TRUE COPY OF THIS PETITION DATED 01.11.2014 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT

Exhibit P6(A) TRUE ENGLISH VERSION OF EXT.P6

Exhibit P7 TRUE COPY OF THE ORDER NO.B-10-82924/14 OF THE 3RD RESPONDENT DATED 23-02-2015

Exhibit P7(A) TRUE ENGLISH VERSION OF EXT.P7 W.P.(C) No. 39107/2022

Exhibit P8 A TRUE COPY OF THE JUDGMENT OF THIS COURT IN W P (C) NO. 15282/2015, DATED 7/6/2022.

Exhibit P9 A TRUE COPY OF THE ORDER DATED 01.09.2022 ISSUED BY THE 1ST RESPONDENT

Exhibit P9(A) TRUE ENGLISH VERSION OF EXT. P9

Exhibit P10 TRUE COPY OF THE ORDER OF ASSESSMENT, DATED1/9/2022 ISSUED BY THE 1ST RESPONDENT

Exhibit P11 TRUE COPIES OF THE DEMAND NOTICE DATED 1/9/2022 ISSUED BY THE 1ST RESPONDENT

Exhibit P12 A TRUE COPY OF THE DETAILS OF MEASUREMENT ISSUED TO THE PETITIONER ON APPLICATION.