Kerala High Court
M.Sreeramakurup vs The State Of Kerala on 21 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
WP(C) NO. 27551 OF 2018
PETITIONER:
M.SREERAMAKURUP
AGED 72 YEARS
MANIKOTH HOUSE, P. O. PERAMBRA,KOZHIKODE
KOZHIKODE
RESPONDENTS:
1 THE STATE OF KERALA
REP BY ITS SECRETARY(TAXES), GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM
THIRUVANANTHAPURAM, PIN - 695001.
2 THE DISTRICT COLLECTOR
KOZHIKODE, CIVIL LINES, MALAPARAMBA, KOZHIKODE,
PIN - 673001.
3 THE REVENUE DIVISIONAL OFFICER
KOZHIKODE , CIVIL LINES, MALAPARAMBA, KOZHIKODE
673001., PIN - 673001
4 THE TAHSILAR
QUILANDY, TALUK OFFICE, QUILANDY, KOZHIKODE
DISTRICT, PIN - 673620.
5 THE VILLAGE OFFICER
MENHANYAM VILLAGE, PERAMBRA, KOZHIKODE DISTRICT,
PIN - 673525
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
Sri Sayed M. Thangal, G. P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 27551 OF 2018
2
JUDGMENT
Dated this the 21st day of June, 2024
The petitioner had constructed a residential building in
Re Survey No.37/6 of Menhanyam village, Perambra,
Kozhikode, as per approved plan Ext.P1. Ext.P2 is the
building permit dated 28.05.2003 based on with the petitioner
completed the construction. There after, on 02.02.2015 by
Ext.P3, the petitioner was assessed, for the building tax
calculating the entire extend as 300.96 sq.m. Aggrieved by
the same, petitioner filed Ext.P4 appeal before the RDO.
Ext.P6 statement regarding the specification of the residential
building having an extent of 248.08 sq.m was also submitted
before the RDO. The petitioner contents that, as per the
assessment notice of the Building and Other Construction
Worker's Welfare Cess Act, 1996, the total extend of the
building is 295.12 sq.m. Under Ext.P8, the Tahsildar had cost
the measurement of the building and found that the total plinth
area of the building is 285.34 sq.m. Aggrieved by the
WP(C) NO. 27551 OF 2018
proceedings of the Tahsildar, the petitioner filed Ext.P9
revision petition before the District Collector which resulted in
Ext.P10 order wherein the Tahsildar was directed to re
examine the plinth area on the basis of the completion plan
and determine the tax. Pursuant to the order of remand of the
District Collector, Ext.P11 proceedings have been issued by
the Tahsildar finding that, the extend of the plinth area of the
building is 312.08 sq.m. The proceedings of the Tahsildar
reveals that he had caused a measurement of the building
through the Village Officer who has submitted this report. It is
impugned in Ext.P11 that the petitioner has approached this
Court. A counter affidavit has been filed on behalf of the
before the 4th respondent in which it is contended that the
order of assessment of the building under the Building and
Other Construction Worker's Welfare Cess Act, 1996, cannot
be taken into consideration. After the remand, the 2 nd
respondent had caused the building, to be measured again
and it was found that the total extend of the building is
WP(C) NO. 27551 OF 2018
312.08 sq.m. It is further contended that, the petitioner had
constructed an additional floor there by costing the increase in
the plinth area.
2. I have heard Sri. Anil Sivaraman, the learned
counsel appearing for the petitioner and the Special
Government Pleader appearing for the respondents. I have
considered the rival submissions raised across the Bar.
3. The proceedings of the Tahsildar is impugned
primarily on the ground, that there are three measurements at
place now. The initial approved plan shows the total extend of
300.02 sq.m as the plinth area. However, the learned counsel
for the petitioner Sri.Anil Sivaraman contended that the total
extend of construction made by the petitioner is of the
248.08 sq.m as evident from Ext.P6 which would entittled him
to claim the exemptions under the provisions of Luxury Tax.
He further has aggrieved by Ext.P8 proceedings of the
Tahsildar in which the total plinth area of the building is
wrongly mentioned as 285.34 sq.m that he filed an appeal
WP(C) NO. 27551 OF 2018
before the District Collector which resulted in Ext.P10. The
findings in Ext.P10 are become final. Therefore, according to
the learned counsel for the petitioner, the Tahsildar was not
authorised to re examine the measurement of the building by
deputing the Village Officer to cause remeasurement and
there after arrive at a different figure altogether.
4. On the other hand, the learned Government
Pleader appearing for the respondents would justify the order
passed by the Tahsildar with specific to the pleadings in the
counter affidavit especially Paragraph 2 and 5 . The
averments in Paragraph 2 and 5 are extracted as below:-
"It is submitted that the petitioner has
constructed a residential building in
Menhanyam Village and the 5th
respondent submitted a report in Form
No.I under the Building Tax Act with a
proposal to assess the building for the one
time building tax. The 5th respondent also
WP(C) NO. 27551 OF 2018
reported that the total plinth area of the
said building is 300.96m² after the physical
measurement conducted by him.
Pursuantly Form No.IV notice has been
issued to the petitioner posting the matter
for hearing on 03- 11-2012. On that day
the petitioner appeared for hearing.
Subsequently the authorized officer was
deputed to inspect the building and for
filing a report. After inspection the
authorized officer stated that on
measurement plinth area of the building is
same as reported by the 5th respondent
and the building was rented out for
residential purpose. After completing the
formalities as per the statute. Ext.P3 order
has been issued to the petitioner. Against
the said order the petitioner preferred on
appeal before the 3rd respondent. In the
WP(C) NO. 27551 OF 2018
appeal the main contention raised by the
petitioner was that the plinth area of the
building calculated is not correct. The 3rd
respondent as per order dated 21-11-2015
remanded the matter for reassessment to
the 4th respondent. The 4th respondent
after conducting the inspection and
measurement of the building clearly found
that the plinth area of the building was
285.34m² excluding the exempted area of
the stair etc,. Since the plinth area is
exceeding 278.7m². Ext.P8 order has been
issued demanding Luxury Tax.
It is most respectfully submitted that
as per Ext.P2 produced by the petitioner
the plinth area of the building is 310.42m².
As per Ext.P1 building plan the plinth area
shown also is 310.42m². Moreover Ext.P7
order issued by the Assessment Officer
WP(C) NO. 27551 OF 2018
Building and Other Construction Worker
Welfare Cess Act, the plinth area shown is
295.12m². After the remand by the 2nd
respondent in the revision petition filed by
the petitioner, the building was measured
again in the presents of the petitioner and
clearly found that the petitioner has
effected, additional construction of the 2nd
floor with the said building and the total
plinth area 312.08 is m², after deducting
exempted area."
5. When this Court considers the rival submissions
made across the Bar it becomes evident that the averments
that are now sought to be placed reliance by the learned
Government Pleader as evident from paragraph 2 and 5 of the
counter affidavit by Tahsildar in the order impugned. The
pointed question before this Court would be that when the
District Collector has directed to re examine the entire case
based on the completion plan, whether he was empowered to
WP(C) NO. 27551 OF 2018
cause the remeasurement of the building through the Village
Officer. Apparently, it is not clear as to whether the petitioner
was put to notice regarding the report of the Village Officer.
The contention of the learned Government Pleader that the
petitioner has constructed an additional floor which has
caused the increase in the plinth area of the building is also
not seen reflected in the order passed by the Tahsildar and
impugned in the writ petition.
6. This Court is of the considered view that the
respondents cannot supplement the order which is impugned
in a writ petition by filing a counter affidavit and adding
reasons which does not find a place in the order impugned.
7. The learned counsel for the petitioner further
contended that based on the judgment of a Division Bench of
this Court in Lillykutty Vs. District Collector and others in
(2012 (3) KHC 157), when there are different measurements
at different points of time and also the measurements not
continuing the nature of calculation, the measurements will
WP(C) NO. 27551 OF 2018
add to be setaside and the matter will have to reloop at the
instance of the appropriate statutory authority.
8. The judgment of the Divison Bench in Lillykutty
(supra) being very specific and binding on this Court, this
Court will have to necessarily follow the law as laid down by
the Division Bench. When the principles laid down by the
Division Bench in Lillykutty (supra) is applied to the facts of
this case, it becomes evident there are three measurments in
the present case 1st measurement is 248.08 sq.m as relied
by the petitioner, 2nd measurement is 285.34 sq.m as evident
from the proceedings of the Tahasildar. It is aggrieved by the
aforesaid measurments that Ext.P9 revision was filed. When
the matter was remitted back, Tahsildar caused a further
remeasurment and arive at a new conclusion that the total
plinth area of the building is 312.08 sq.m. Therefore,
apparently, even the authorities who are empowered to
assess tax were not sure about the total plinth area of the
building.
WP(C) NO. 27551 OF 2018
9. The measurements of the building assumes
significance in the light of the contention raised by the
petitioner that the total plinth area of the building is less than
the chargeable limits for which the act applies. In other
words, if the petitioner's plinth area is less than 278 sq.m.,
then as provided under the act, he is entitled to claim
exemption from the provisions of the Luxury Tax.
10. In the above circumstances Ext.P11 order is
setaside. The matter is remanded back to the Tahsildar. The
Tahsildar was conducted the measurements of the building
done with the assistance of an Engineer from the PWD
department in the presence of the petitioner and solicit a
report. A copy of the said report will also be served on the
petitioner. Once the entire exercise is complete, the
petitioner will be free to raise objections to the said report
and after considering the objections, the Tahsildar shalll
conduct a reassessment of the building for the purpose of
charging the Luxury Tax. The Tahsildar will also examine as
WP(C) NO. 27551 OF 2018
to whether the petitioner has constructed an additional floor as
contended by him in the counter affidavit filed before this
Court. Once the entire exercises is complete, the Tahsildar
may proceed to pass appropriate orders of assessment
against the petitioner. The needful in this regard shall be
done by the Tahsildar at any day within a period of six months
from the date of receipt of the copy of the judgment.
Writ petition is allowed.
Sd/-
EASWARAN S.
JUDGE
STB
WP(C) NO. 27551 OF 2018
APPENDIX OF WP(C) 27551/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF APPROVED PLAN
EXHIBIT P2 TRUE COPY OF BUILDING PERMIT DATED
28.5.2003.
EXHIBIT P3 TRUE COPY OF ASSESSMENT ORDER DATED
2.02.2015 (ENGLISH TRANSLATION OF
EXT.P3)
EXHIBIT P4 TRUE COPY OF APPEAL WITH (ENGLISH
TRANSLATION OF EXT.P4)
EXHIBIT P5 TRUE COPY OF LUXURY TAX RECEIPT DATED
04.05.2016.
EXHIBIT P6 TRUE COPY OF CERTIFICATE DATED
1.04.2015
EXHIBIT P7 TRUE COPY OF ASSESSMENT UNDER B&OCWWC
ACT (ENGLISH TRANSLATION OF EXT.P7)
DATED 24.01.2015.
EXHIBIT P8 TRUE COPY OF ASSESSMENT ORDER DATED
19.02.2016 (ENGLISH TRANSLATION OF
EXT.P8)
EXHIBIT P9 TRUE COPY OF REVISION DATED 2.05.2016
EXHIBIT P10 TRUE COPY OF REVISION DATED 2.05.2016
EXHIBIT P11 TRUE COPY OF ASSESSMENT ORDER DATED
16.07.2018 (ENGLISH TRANSLATION OF EXT
P11)
