Kerala High Court
Nibu Peter vs State Of Kerala,Rep By Secretary To ... on 25 October, 2024
2024:KER:81422
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
WP(C) NO. 37769 OF 2015
PETITIONER:
NIBU PETER,
AGED 41 YEARS,
S/O.O.P.PATHROSE, OMBALAYIL,
KOLENCHERY, AIKKARANADU SOUTH VILLAGE,
KOLENCHERY, ERNAKULAM DISTRICT.
BY ADVS.
SRI.K.S.BABU
SRI.BABU SHANKAR
SRI.K.S.GOPI
SMT.N.SUDHA
SRI.VIPIN VISWAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO REVENUE,
SECRETARIAT, THIRUVANANTHAPURAM.
2 THE DISTRICT COLLECTOR,
ERNAKULAM, CIVIL STATION BUILDINGS,
KAKKANAD, COCHIN-30.
3 REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA.
4 THE TAHSILDAR,
TALUK OFFICE, KUNNATHUNADU,
ERNAKULAM DISTRICT.
W.P.(C)No.37769 of 2015 2 2024:KER:81422
OTHER PRESENT:
BY ADV. SRI.SAYED M THANGAL,SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.37769 of 2015 3 2024:KER:81422
JUDGMENT
The petitioner, constructed a residential building on the basis
of Ext.P1 building permit and Ext.P2 approved plan.
2. By Exts.P3 and P4, the petitioner has been saddled
with luxury tax under the provisions of the Kerala Building Tax
Act ,1975. A reference to Exts.P3 and P4 would show that the area of
the building constructed is 304.72 M2 according to the assessing
authority.
3. The petitioner has filed the captioned writ petition
essentially contending that the area is not as quantified in Ext.P4 and
it is only 263.4 M2 as seen from Ext.P2.
4. This Court by an order dated 10.01.2017, had
appointed an Advocate Commissioner to carry out the measurement
of the residential building in question, in view of the stand taken by
the petitioner as above.
5. The learned Advocate Commissioner has filed a
report dated 12.04.2017. In paragraph 6 of his report, the learned
Advocate Commissioner has pointed out the following discrepancy:
"6. On an analysis of the measurement recorded and intimated
by the A.E, P.W.D and the measurement as shown in Annexure
D, the following measurements are not matching;
Ground Floor (In Metres):- 5.43, 6.05, 8.42, 8.59, 5.77, 1.76,
W.P.(C)No.37769 of 2015 4 2024:KER:81422
1.66, 0.23, 1.76, 1.55
First Floor (In Metres) :- 5.43, 6.05, 8.42, 8.59, 5.77, 1.18,
5.77, 4.04
Stair Room (in Metres) :- 2.40, 2.19, 2.45 (Height)"
6. I have heard Smt. N. Sudha, the counsel for the
petitioner and Sri.Sayed Murthala Thangal, the learned Government
Pleader.
7. Smt. N. Sudha, the learned counsel for the petitioner
points out that the assessment requires a re-consideration in the light
of the findings in the report of the Advocate Commissioner. Per
contra, the learned Government Pleader, points out with reference to
the letter dated 29.08.2024, issued by the Assistant Engineer, PWD
Building Section, Perumbavoor, addressed to the 4 th respondent
herein that a fresh measurement has been carried out and even after
the said fresh measurement the built up area of 304.73 M2.
8. It is true that, as contended by the learned
Government Pleader, a fresh measurement has been carried out as
seen from the communication dated 29.08.2024 referred to above.
However, a perusal of the said letter would show that there is no
reference to the discrepancies pointed out by the learned Advocate
Commissioner in his report.
9. In such circumstances, I am of the opinion that the
matter requires a re-visit at the hands of the 4th respondent herein.
W.P.(C)No.37769 of 2015 5 2024:KER:81422
Resultantly, this writ petition would stand allowed as under:
i The 4th respondent to consider the case of the petitioner
again, with reference to the discrepancies pointed out by the
Advocate Commissioner noticed above.
ii The 4th respondent to carry out a re-measurement of the
building in question, with reference to, the discrepancy
pointed out by the Advocate Commissioner, in the presence
of the petitioner/his representative.
iii The petitioner to appear before the 4th respondent on
06.11.2024, on which date, the 4th respondent would fix a
date and time for carrying out the re-measurement as above.
iv The liability to tax with reference to luxury tax payable under
the provisions of the Kerala Building Tax Act, 1975, would be
subject to the re-measurement to be carried out as above.
Sd/-
HARISANKAR V. MENON
JUDGE
ANA
W.P.(C)No.37769 of 2015 6 2024:KER:81422
APPENDIX OF WP(C) 37769/2015
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF THE BUILDING
PERMIT ISSUED TO THE PETITIONER.
EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF THE PLAN
APPROVED BY THE ASSISTANT ENGINEER, LOCAL
SELF GOVERNMENT DEPARTMENT, POOTHRIKKA
SECTION, POOTHRIKKA P.O.
EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF THE ORDER OF
ASSESSMENT OF BUILDING TAX DATED 19.11.2010
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P4 THE TRUE PHOTOSTAT COPY OF THE DEMAND
NOTICE DATED 22.11.2010 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P5 THE TRUE PHOTOSTAT COPY OF THE PROCEEDINGS
NO.7638/2010 DATED 23.11.10 ISSUED BY THE
4TH RESPONDENT ASSESSING THE PETITIONERS
BUILDING TO LUXURY TAX.
EXHIBIT P6 THE TRUE PHOTOSTAT COPY OF THE RECEIPT
DATED 6.12.2010 EVIDENCING PAYMENT OF IST
INSTALLMENT OF BUILDING TAX.
EXHIBIT P7 THE TRUE PHOTOSTAT COPY OF THE RECEIPT NO.
4055408 DATED 6.12.2010 ISSUED FROM
AIKKARANAD SOUTH VILLAGE FOR PAYMENT OF
LUXURY TAX OF THE BUILDING.
EXHIBIT P8. THE TRUE PHOTOSTAT COPY OF THE PROCEEDING
NO.A7-8575/2010/K.DIS DATED 21.4.2015 OF
THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA.
EXHIBIT P9 THE TRUE COPY OF THE PROCEEDINGS NO.B10-
49999/15 DATED 3.9.15 OF THE 2ND
RESPONDENT.
