Kerala High Court
Abdul Hareez T.P vs State Of Kerala on 20 June, 2025
2025:KER:44556
WPC.No.23718/24 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TH
FRIDAY, THE 20 DAY OF JUNE 2025 / 30TH JYAISHTA, 1947
WP(C) NO. 23718 OF 2024
PETITIONER:
ABDUL HAREEZ T.P.,
AGED 56 YEARS,
S/O.ABOOBAKER T.P., MUBINA MANZIL, PUZHAMUDI
P.O., ACHOORANAM VILLAGE,
WAYANAD DISTRICT, PIN - 673 122.
BY ADVS.
SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, REVENUE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695 033.
2 DISTRICT COLLECTOR,
COLLECTORATE, WAYANAD, NORTH KALPETTA P.O.,
WAYANAD, PIN - 673 122.
3 SUB COLLECTOR,
OFFICE OF THE SUB COLLECTOR AND SUB DIVISIONAL
MAGISTRATE, MANANTHAVADY, KANNUR ROAD,
MANANTHAVADY, WAYANAD, PIN - 670 645.
2025:KER:44556
WPC.No.23718/24 2
4 THE TAHSILDAR,
VYTHIRI TALUK OFFICE, VYTHIRI,
WAYANAD, PIN - 673 576.
5 POZHUTHANA GRAMA PANCHAYAT,
POZHUTHANA, WAYANAD, REPRESENTED BY SECRETARY,
PIN - 673 123.
BY ADVS.
GOVERNMENT PLEADER
SHRI.ARUN SAMUEL, POZHUTHANA GRAMA PANCHAYAT
SHRI.ARUN AJAY SANKAR, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:44556
WPC.No.23718/24 3
JUDGMENT
The petitioner is the owner of a building bearing door
No.3/11A at Pozhuthana Grama Panchayat, Wayanad District,
which comes within the jurisdiction of the 4 th respondent.
The issue involved in this writ petition pertains to the
assessment of the building under Section 5A of the Kerala
Building Tax Act, 1975, by which the petitioner was imposed
with the liability to pay the luxury tax. Since the challenge
raised against the assessment under Section 5A is based on
the plinth area determined by the authorities concerned, a
challenge has been raised against the original order of
assessment of the building under Section 5 of the Act also, as
far as the plinth area is concerned. Facts that led to the
filing of this writ petition are as follows:
Earlier, Ext.P1 assessment order was issued under
Section 5A of the Act, 1975, in respect of the building of the
petitioner, reckoning the plinth area of the building as 285.08
Sq.M. The said assessment was made on 25.09.2017. The
2025:KER:44556
petitioner had already remitted the tax based on the said
assessment. Later, Ext.P3 was issued by the 4 th respondent
imposing luxury tax upon the building under Section 5A of
the Act, on the reason that, as the plinth area of the building
determined in the assessment was 285.08 Sq.M, that exceeds
the ceiling of 278.7 Sq.M, contemplated under Section 5A of
the Act and therefore, the building is liable to be imposed
with luxury tax. Accordingly, a demand of Rs.16,000/- was
made towards the luxury tax. It was taken in appeal by the
petitioner and the 3rd respondent considered the appeal in
which, Ext.P4 order was passed. During the pendency of the
appeal, the building was re-measured in the presence of the
petitioner and the plinth area was determined as 284.87
Sq.M. Accordingly, as the revised plinth area was also found
to be in excess of the ceiling contemplated under Section 5A,
the appeal was rejected as per Ext.P4. Even though a
revision petition was submitted against the same before the
District Collector, it culminated in Ext.P7, whereby Ext.P3
2025:KER:44556
order was confirmed. This writ petition is submitted by the
petitioner challenging the same.
2. According to the petitioner, the procedure adopted
by the 4th respondent in determining the plinth area was not
correct. This is because, as per the amendment brought in
vide Ext.P10, which is the Amendment Act, 2023, Section 6
that deals with the plinth area was amended, a hence
reassessment is necessary as far as the plinth area is
concerned, in the light of the above.
3. A counter affidavit has been submitted by the 3 rd
respondent justifying the findings entered into in the
impugned orders. The 5th respondent also filed a counter
affidavit in response to the averments contained in the writ
petition.
4. I have heard Sri.Firoz K.M, learned counsel for the
petitioner and Sri.Arun Ajay Shankar, learned Government
Pleader for the State.
5. The learned counsel for the petitioner contends
that, in the light of the amendment brought into Section 6 of
2025:KER:44556
the Kerala Building Tax Act as per Act 11 of 2024, the
method of assessment of plinth area is changed and hence a
reassessment is necessary. This submission is made by the
learned counsel mainly on the ground that as far as the
amendment made to section 6, as per Ext.P10 is concerned,
even though the same was brought into force in the year
2024, being a procedure law, it will have a retrospective
application. It was also pointed out that these proceedings
were under challenge right from the inception and the
amendment was brought in, during the existence of such
challenge, and hence the procedure as per the amended
provision is to be made applicable. The learned counsel for
the petitioner placed reliance upon the decisions rendered by
the Honourable Supreme Court in Commissioner of Wealth
Tax, Meerut v. Shravan Kumar Swarup & Sons [(1994) 6
SCC 623]. On the other hand, the learned Government Pleader
submitted that, as far as the amendment brought into force as
per Ext.P10 is concerned, it cannot be made applicable to the
proceedings which culminated in the impugned orders.
2025:KER:44556
6. After carefully going through the statutory
provisions and the materials placed on record, I do not find
any justifiable reason to accept the contention put forward by
the learned counsel for the petitioner for the reasons
hereinafter mentioned.
7. As far as the contention with regard to the
retrospective application of the statutory amendment brought
in to Section 6 is concerned, under no circumstances, the
same can be made applicable to the case of the petitioner. In
paragraph 26 of Hitendra Vishnu Thakur v. State of
Maharashtra [(1994) 4 SCC 602], the Hon'ble Apex Court
has set forth the following principles with regard to ambit
and scope of an amending Act and it's retrospective
application, which reads as follows:
(i) A statute which affects substantive rights is
presumed to be prospective in operation unless made
retrospective, either expressly or by necessary
intendment, whereas a statute which merely affects
procedure, unless such a construction is textually
impossible, is presumed to be retrospective in its
application, should not be given an extended meaning
2025:KER:44556
and should be strictly confined to its clearly defined
limits.
(ii) Law relating to forum and limitation is procedural
in nature, whereas law relating to right of action and
right of appeal even though remedial is substantive in
nature.
(iii) Every litigant has a vested right in substantive law
but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking
be applied retrospectively where the result would be
to create new disabilities or obligations or to impose
new duties in respect of transactions already
accomplished.
(v) A statute which not only changes the procedure but
also creates new rights and liabilities shall be
construed to be prospective in operation, unless
otherwise provided, either expressly or by necessary
implication."
8. In Commissioner of Income Tax (Central) -I ,
New Delhi v. Vatika Township Private Limited, [(2015)
1 SCC 1], wherein the Constitution Bench observed as
follows:
"31. Of the various rules guiding how a legislation has
to be interpreted, one established rule is that unless a
contrary intention appears, a legislation is presumed
2025:KER:44556
not to be intended to have a retrospective operation.
The idea behind the rule is that a current law should
govern current activities. Law passed today cannot
apply to the events of the past. If we do something
today,we do it keeping in view the law of today and in
force and not tomorrow's backward adjustment of it.
Our belief in the nature of the law is founded on the
bed rock that every human being is entitled to arrange
his affairs by relying on the existing law and should
not find that his plans have been retrospectively upset.
This principle of law is known as lex prospicit non
respicit : law looks forward not backward. As was
observed in Phillips vs. Eyre[3], a retrospective
legislation is contrary to the general principle that
legislation by which the conduct of mankind is to be
regulated when introduced for the first time to deal
with future acts ought not to change the character of
past transactions carried on upon the faith of the then
existing law."
9. In this regard, it is also necessary to examine the
statutory provision which existed at the time of completing
the assessment as per Ext.P1 and the provision that stands
after amendment. Section 6, before amendment as per Act
11 of 2024 reads as follows:
2025:KER:44556
"Determination of plinth area.- the plinth area of a
building for the purposes of this Act, shall be the plinth
area of the building as specified in the plan approved
by the local authority or such other authorities as may
be specified by Government in this behalf and verified
by the assessing authority in such manner as may be
prescribed.
[Provided that the plinth area of a garage or any
other erection or structure appurtenant to a residential
building used for storage of firewood or for any non-
residential purpose shall not be taken into account for
determining the plinth area of that building]".
10. After the amendment, Section 6 reads as follows:
"Determination of plinth area for the purpose of
assessment of building tax or additional tax- The plinth
area of a building for the purpose of assessment of
building tax or additional tax, as the case may be,
under this Act shall be the plinth area of such building
as may be specified in the software/occupancy
certificate/tax assessment details, as the case may be,
approved by Local Self Government Institutions."
11. The difference between the said provisions is that,
Section 6 prior to amendment contemplated that the plinth
area of a building shall be specified in the plan approved by
the local authorities or such authorities as may be specified
2025:KER:44556
by the Government and verified by the assessing authority in
such manner as may be prescribed. However, as per the
amended provision, the plinth area of the building is to be
determined based on the plinth area specified in the
software, occupancy certificate/tax assessment of the local
self government institutions as the case may be, approved by
Local Self Government Institutions. Conspicuously, the
authority of the assessing officer to verify the plinth area
specified in the plan approved by the local authority, was
done away with. In this case, the specific case of the
petitioner is that, going by the approved plan, the total area
of the building was only 269 Sq.M and therefore, if the
amended provisions are applied, an assessment of plinth area
beyond the same based on the verification of the assessing
authority namely, 4th respondent, was not possible.
12. However, as far as the assessment now made as
evidenced by Ext.P1 is concerned, it was done on 29.05.2017,
much prior to the introduction of the amendment as per
Ext.P10. The said assessment was indisputably made based
2025:KER:44556
on the statutory procedure contemplated in this regard, as in
existence at the relevant time. In Nani Gopal Mitra v. State
of Bihar, AIR 1970 SC 1636, it was observed that the
amended law with respect to a procedure operates
retrospectively. But there is another equally important
principle viz. that a statute should not be so construed as to
create new disabilities or obligations or impose new duties in
respect of transactions which were complete at the time the
amending Act came into force. Thus, merely because of the
reason that, a challenge raised against the said assessment
was pending consideration, a different procedure
contemplated in the subsequent amendment cannot be made
applicable to the same. This view has also been adopted in
Nani Gopal (Supra), as follows:
"6. The effect of the application of this principle is that
pending cases although instituted under the old Act but
still pending are governed by the new procedure under
the amended law, but whatever procedure was correctly
adopted and concluded under the old law cannot be
opened again for the purpose of applying the new
procedure ...."
2025:KER:44556
13. Thus, even if a challenge against the original
assessment is pending consideration, an interference in the
same can be done, only if it is found that such an assessment
was against the statutory stipulations that was applicable to
the same at the relevant time or the said assessment was
incorrect or improper due to any other reasons. Ext.P1
assessment was completed based on the statutory
proceedings which was in existence at the relevant time.
Therefore, under no circumstances, the assessing authority
can be found fault with, for completing the assessment by
following the procedure which was in existence at the
relevant time. The specific contention of the learned counsel
for the petitioner is that, what is contemplated in Section 6 is
only the matter relating to the procedure, which can be made
applicable retrospectively.
14. It is also the contention of the petitioner that the
new amendment must have retrospective application, at least
in cases where the challenge against the assessment is
pending consideration, as on the date of amendment. The
2025:KER:44556
said submission was made by the learned counsel for the
petitioner, by specifically placing reliance upon the
observations made by the Honourable Supreme Court in
Shravan Kumar (supra). On carefully going through the
observations made by the Honourable Supreme Court in the
aforesaid decision, it is discernible that the said decision
deals with the amendment brought into the Wealth Tax Rules
by introducing Rule 1BB. Issue involved in the same was
with respect to the manner in which the valuation of has to
be done for a house. As per Rule 1BB, a different method was
introduced and the Honourable Supreme Court after
examining the impact and consequence of the said
amendment, and taking note of the nature of the amendment,
it was observed that, the Rule 1 BB is essentially a rule of
evidence, as to the choice of one of the well accepted
methods of valuation and it must have retrospective
application. However, the circumstances under which and
the materials to be considered for the purpose of Building
Tax Act are completely different. As far as the valuation of a
2025:KER:44556
building as contemplated under the Wealth Tax Rules, which
were referred to in Shravan Kumar (supra) is concerned,
the same is to some extent subjective. Even if specific
guidelines are formulated by the statutory provisions, as it
depends upon the calibre, mind set and capacity of the
valuers to some extent, the valuation done by each valuaer
would be different. On the other hand, when it comes to the
question of the assessment of the plinth area of the building,
it is very specific and it can be assessed with arithmetic
precision, as the same is being done based on measurement
carried out physically. Therefore, the nature of the matters to
be considered as per the Wealth Tax Rules and those which
are to be assessed under the provisions of the Kerala Building
Tax Act ,are completely different and therefore, I am of the
view that the aforesaid principles cannot be made applicable
to the assessment under the provisions of the Kerala Building
Tax Act.
15. There is yet another aspect which fortifies the
aforesaid view. Even if the method of assessment as per the
2025:KER:44556
amendment is made applicable to the assessment already
completed, still reworking of the assessment may be necessary.
This is because, in this case, the specific case of the petitioner is
that as per the plan approved by the local authority the plinth
area of the building is between 269 and 270 Sqr Mtrs.
Therefore, even if the assessment is completed for the time
being, based on the amended provision and thereby taking
plinth area in the plan, it cannot be treated as final. This is
because, as per section 5(4) of the Building Tax Act, if the plinth
area of the building is increased due to new extension or
additions or major repair, the building tax has to be computed
on the total plinth area, including that of the new additions and
the credit shall be given to the tax already levied. Thus, it is
evident that, even in cases where the assessment is completed
based on the plinth area in the approved plan of the local
authority, it could be possible for the assessing officer to re-
assess the tax, if it is found that, there are additions in the
building.
16. When it comes to the factual circumstances of the
case, it is evident from the records that, during the pendency
2025:KER:44556
of the appeal, the building was once again subjected to
measurement, which was done in the presence of the
petitioner. In the said measurement, the total plinth area
was determined as 287.78 Sq.M, which is again higher than
the sealing of 278.7 Sq.M, contemplated under Section 5A.
This is being the factual position, which is found and
reiterated by the statutory authorities based on the
inspections conducted, I do not find any scope for
interference under Article 226 of the Constitution of India.
Thus, I find that the petitioner failed to make out any
justifiable grounds to interfere with the order impugned.
Accordingly, this writ petition is dismissed, confirming the
orders under challenge.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
DG/21.6.25
2025:KER:44556
APPENDIX OF WP(C) 23718/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER
DATED 29.5.2017 HAVING NO.
C1/10184/2016 ISSUED BY TAHSILDAR,
VYTHIRI
Exhibit P2 TRUE COPY OF THE DEMAND NOTICE NO.
C1/10184/2016 DATED 29.5.2017 ISSUED
BY TAHSILDAR, VYTHIRI
Exhibit P3 TRUE COPY OF THE PROCEEDINGS OF
TAHSILDAR, VYTHIRI NO. C1/10184/2016
DATED 29.5.2017
Exhibit P4 TRUE COPY OF THE ORDER DATED 17.7.2018
HAVING NO.A-4604/17 PASSED BY SUB
COLLECTOR, MANANTHAVADY
Exhibit P5 TRUE COPY OF THE REVISION PETITION
PREFERRED BY PETITIONER BEFORE THE
DISTRICT COLLECTOR, WAYANAD DATED
16.9.2020
Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED
29.1.2019 SUBMITTED BY THE PETITIONER
Exhibit P7 TRUE COPY OF THE ORDER DATED 14.8.2020
HAVING NO. DCWYD/13223/18-B5 PASSED BY
THE DISTRICT COLLECTOR, WAYANAD
Exhibit P8 TRUE COPY OF THE SAID REVIEW PETITION
DATED 16.11.2020 SUBMITTED BY
PETITIONER BEFORE THE DISTRICT
COLLECTOR, WAYANAD
Exhibit P9 TRUE COPY OF THE REPORT AND PLAN DATED
13.3.2024 PREPARED BY SRI. JAFFAR ALI
P, ARCHITECT
Exhibit P10 A TRUE COPY OF THE KERALA BUILDING TAX
AMENDMENT ACT, 2023
