Sebastian Jose vs State Of Kerala
2023 Latest Caselaw 10592 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
    THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                    WA NO. 1800 OF 2023
 AGAINST THE JUDGMENT IN WP(C) 30791/2023 OF HIGH COURT OF
                           KERALA
APPELLANTS/PETITIONER IN WPC:

         SEBASTIAN JOSE
         AGED 71 YEARS
         S/O. JOSEPH, VALIKULATH, VATHIKUDI VILLAGE,
         MURIKASSENY, IDUKKI DISTRICT, PIN - 685604

         BY ADV VARGHESE PARAMBIL


RESPONDENTS/RESPONDENTS 1 & 2 IN WPC:

    1    STATE OF KERALA
         COLLECTRATE PAINAVU, PIN - 685603

    2    THE TAHSILDAR
         IDUKKI TALUK, VAZHATHOPPU,
         IDUKKI DISTRICT, PIN - 685604


OTHER PRESENT:

         SR GP DR THUSHARA JAMES



     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WA No.1800/2023

                               -:2:-



                         JUDGMENT

Kauser Edappagath, J.

This writ appeal has been filed challenging the judgment of

the learned Single Judge in WP(C) No. 30791/2023 dated 20 th

September 2023.

2. The building belonging to the appellant was assessed

to luxury tax by the Tahsildar, Udumbanchola with effect from

2008 as per the assessment order dated 21/3/2011 with a finding

that the total plinth area of the building would come to 285.13 sq.

metres. The appellant paid the luxury tax without protest from

2008-2009 to 2015-2016 @ `2,000/- per year. During 2016-17,

the luxury tax was enhanced to `4,000/- per year. The appellant

then filed a petition to the District Collector, Idukki requesting to

remeasure the plinth area of the building. As per the order dated

28/8/2017, the District Collector directed the Tahsildar, Idukki, to

measure the building again and file a report. The Tahsildar after

measuring the building submitted Ext.P3 report dated 20/10/2017 WA No.1800/2023

showing the plinth area as 268.34 sq. metres. On receipt of the

report, the District Collector directed the Tahsildar to retake the

measurement of the building. The Tahsildar found the plinth area

as 280.91 sq. metres on such measurement. On that basis, the

Tahsildar directed the appellant to pay the luxury tax vide order

dated 30/1/2019. Against the said order, the appellant preferred

an appeal before the RDO, Idukki, which was dismissed as per

Ext.P7 order dated 20/2/2023 on a finding that the plinth area of

the building is 280.91 sq. metres. After that, the Sub Collector,

Idukki, as per Ext.P8 order dated 13/3/2023, suo moto, corrected

Ext.P7 order stating that when the Junior Superintendent of that

office inspected the building, the area of the building was found

to be 279.98 sq. metres, and the Tahsildar was directed to issue

tax assessment order accordingly. The appellant filed revision

before the District Collector which ended in dismissal vide

Ext.P11 order dated 11/8/2023. It was thereafter the appellant

preferred writ petition before the learned Single Judge

challenging Ext.P11 order. The learned Single Judge dismissed

the writ petition holding that the Tahsildar, RDO and the District WA No.1800/2023

Collector have consistently found that the appellant's building

has a total plinth area of more than 278.70 sq. metres.

3. We have heard Sri. Varghese Parambil, the learned

counsel for the appellant and Dr.Thushara James, the learned

Senior Government Pleader.

4. The learned counsel for the appellant submitted that

there is a glaring difference in the measurement conducted by

the Village Officer, Tahsildar as well as the Junior Superintendent

and hence the request of the appellant for remeasurement of the

building by a competent Civil Engineer ought to have been

allowed by the learned Single Judge. The counsel further

submitted that the appellant is not legally liable to pay the luxury

tax.

The appellant's building was assessed to building tax and

luxury tax with effect from 2008-09. He had been paying the

luxury tax without protest from 2008-09 to 2015-16. He

approached the District Collector with a request to verify the

actual plinth area of the building for the first time in 2017 when

the luxury tax was enhanced from `2,000/- to `4,000/-. The WA No.1800/2023

luxury tax is levied on the building constructed on or after

01/04/1999 having a plinth area of 278.70 sq. metres or more.

The appellant's building was measured on four occasions. On

three occasions, the plinth area exceeded the ceiling limit of

278.70 sq. metres. Under the exercise of jurisdiction vested

under Article 226 of the Constitution of India, this Court cannot

collect the evidence. The learned Single Judge has correctly

found that there is absolutely no ground to interfere with the

finding regarding the plinth area of the building by the three

revenue authorities. We find no merit in the writ appeal, and

accordingly, it is dismissed. However, luxury tax being an annual

levy, the dismissal of the writ appeal will not stand in the way of

the appellant approaching the authorities in the future if he

makes alterations in the building in question so as to bring its

plinth area below 278.70 sq. metres.

Sd/-

DR. A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp