Kerala High Court
Muhammed Najeeb.P.P vs State Of Kerala on 21 March, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
WP(C) NO. 11506 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
WP(C) NO. 11506 OF 2025
PETITIONER(S):
MUHAMMED NAJEEB.P.P., AGED 57 YEARS
S/O MAMU HAJI,
RESIDING AT NIHMA MAHAL,
KOLAPPA, PATTANOOR,
P.O IRIKOOR,
KANNUR, PIN - 670 593.
BY ADVS.
ABDUL RAOOF PALLIPATH
E.MOHAMMED SHAFI
PRAJIT RATNAKARAN
KRISHNAPRIYA R.
SOORYA K.
ANJU DONY
RESPONDENT(S) :
1 STATE OF KERALA
DEPARTMENT OF REVENUE,
REPRESENTED BY ITS SECRETARY,
SECRETARIAT,
TRIVANDRUM, PIN - 695 001.
2 DISTRICT COLLECTOR - KANNUR
COLLECTORATE,
THAVAKKARA,
KANNUR, PIN - 670 002.
3 RDO - THALASSERY
NATIONAL HIGHWAY 17,
PALISSERY,
THALASSERY,
KANNUR, PIN - 670101
WP(C) NO. 11506 OF 2025
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4 THAHASILDAR-THALASSERY,
2ND FLOOR,
MINI CIVIL STATION BUILDING,
PALISSERY, KANNUR DIST,
THALASSERY, PIN - 670 101.
5 VILLAGE OFFICER-PATTANOOR
PATTANOOR VILLAGE OFFICE,
NAYATTUPARA,
KANNUR, PIN - 670 602.
DR.THUSHARA JAMES, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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BECHU KURIAN THOMAS, J.
......................................................
W.P.(C) No.11506 of 2025
...................................................
Dated this the 21st day of March, 2025
JUDGMENT
Petitioner is the owner of a building No.KP V-423A of Koodali Panchayat.
Petitioner challenges an order of assessment under Section 5A of the
Kerala Building Tax Act, 1975 [for short, 'the Act'].
2. According to the petitioner, he completed the construction of his
residential building in 2017, which had a plinth area of 242.44 sq.mtrs. as
per the approved building plan. However, the building was subjected to
an assessment under Section 5 of the Act treating the area as 301.40
sq.mtrs., and imposed a one-time building tax of Rs.12,000/- and an
amount of Rs.4,000/- as luxury tax. Petitioner paid only the building tax
amount of Rs.12,000/-.
3. Though no documents are available, it is noticed from Ext.P6 that
petitioner had preferred an appeal against the imposition of luxury tax,
which was dismissed on 21.11.2020 and a revision petition was filed on
24.03.2022. By Ext.P6 order dated 26.12.2022, the revision petition was
dismissed. Thereafter petitioner did not challenge the order of revision
and it became final. In the meantime, pursuant to the observations in
Ext.P6 that if the petitioner has any grievance regarding the area
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calculated for the purpose of luxury tax, he is at liberty to file an
application for fresh assessment for the future period, after clearing the
arrears till then, the assessing authority can proceed with such
assessment; petitioner filed an application on 29.07.2024. The said
application was responded to by the assessing officer demanding
payment of arrears of luxury tax. Yet again petitioner requested the
authority to re-assess his building for the purpose of luxury tax through
Ext.P9 and Ext.P10 representations. However, the assessing officer
informed the petitioner that since he had not cleared the arrears, his
application cannot be proceeded with and that revenue recovery steps
will have to be initiated.
4. Sri.Abdul Raoofpallipath, the learned counsel for the petitioner,
submitted that the imposition of luxury tax on petitioner's building is
without any basis as the plinth area is less than 278.7 sq.mtrs. According
to the learned counsel, if an inspection is carried out and measurements
are taken, it would reveal that the area is less than the cut-off limit
prescribed under the Statute, and he will not be liable to pay any amount
towards the luxury tax.
5. Dr.Thushara James, the learned Senior Government Pleader, on the other
hand submitted that the assessment under Section 5 of the Act, became
final and was not the subject matter of any challenge and petitioner had
acquiesced into the said order by paying the building tax without any
objection. It was also submitted petitioner cannot now question the
plinth area identified in the order of assessment under Section 5 of the
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Act. According to the learned Government Pleader, the application filed
by the petitioner as referred to in Ext.P8 filed on 29.07.2024 can only be
treated as a request for fresh assessment for the yer 2024-2025 onwards
and not for any period prior to that, since the assessment, up to
31.03.2024, had already become final.
6. On a consideration of the rival contentions, I am of the view that
petitioner's challenge against Ext.P2 to the extent of levy of luxury tax
cannot be entertained. After acquiescing into the order of building tax
under Section 5 of the Act, petitioner cannot separately challenge the
plinth area for the purpose of the luxury tax. Building Tax was imposed
on the petitioner, treating the building as having an extent of
301.4 sq.mtrs. The said order is the basis for levying the luxury tax as it
exceeds the minimum cut-off limit of 278.7 sq.mtrs. The revisional
authority while passing Ext.P6 order dismissing petitioner's application,
specifically observing that petitioner is at liberty to seek fresh
assessment after payment of the entire arrears. In consonance with the
said direction, petitioner even filed an application on 29.07.2024, for
fresh assessment which is not being considered because of non payment
of arrears of luxury tax.
7. On an appreciation of the aforesaid circumstances, I do not find any
error or perversity in Ext.P8 warranting an interference of this Court
under Article 226 of the Constitution of India. Since the luxury tax
assessment is conducted on a year-to-year basis and order of
assessment under Section 5A of the Act cannot remain forever, the
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assessee is entitled to seek fresh assessment of luxury tax for the future
years, if in case he is able to prove that the area has fallen below
278.07 sq.mtrs. However, the said application cannot alter the
conclusiveness of the finding rendered earlier for the assessment till that
period. Therefore, I do not find any reason to interfere with Ext.P2 order
of assessment.
8. Since petitioner has already filed an application on 29.07.2024, the 4 th
respondent-the assessing authority is bound to re-consider the area
specified in Ex.P2 for the purpose of luxury tax assessment for the period
from 01.04.2024 onwards. The needful shall be done as expeditiously as
possible, at any rate within a period of three months from the date of
receipt of a copy of this judgment. The assessing officer will be at liberty
to conduct an inspection of the building in question.
9. As far as the arrears of luxury tax are concerned, the petitioner shall pay
the arrears till 2023-2024 in six equated monthly instalments and with
the first instalment commencing on 21.04.2025 and the remaining on
the 21st day of every succeeding month. If in case petitioner commits any
default, respondent will be at liberty to proceed in accordance with law.
The writ petition is dismissed.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/25/03/2025
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APPENDIX OF WP(C) 11506/2025
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE APPROVED BUILDING PLAN
ISSUED BY KOODALI GRAMA PANCHAYAT DATED NIL
EXHIBIT P2 A TRUE COPY OF THE ASSESSMENT ORDER ISSUED TO
THE PETITIONER IN FEBRUARY 2018
EXHIBIT P3 A TRUE COPY OF THE RECEIPT DATED 28.03.2018
FOR PAYMENT OF RS.12,000/-
EXHIBIT P4 A TRUE COPY OF THE CERTIFICATE DATED
27.03.2017 ISSUED BY THE SECRETARY KOODALI
GRAMA PANCHAYAT
EXHIBIT P5 TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE
OF THE 2ND RESPONDENT DATED 24/3/2022 FOR
FILING APPLICATION
EXHIBIT P6 A TRUE COPY OF THE REPLY DATED 26.12.2022
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P7 A TRUE COPY OF THE EXPLANATION SUBMITTED BY
THE PETITIONER TO THE 4TH RESPONDENT DATED
25.01.2023
EXHIBIT P8 A TRUE COPY OF THE LETTER DATED 08.08.2024
ISSUED BY RESPONDENT NO. 4 TO THE PETITIONER
EXHIBIT P9 A TRUE COPY OF THE REQUEST SUBMITTED BY THE
PETITIONER BEFORE THE LAND REVENUE
COMMISSIONER, TRIVANDRUM DATED 30.08.2024
EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER DATED 25.10.2024 BEFORE THE
REVENUE MINISTER
EXHIBIT P11 A TRUE COPY OF THE REPLY DATED 18.12.2024
ISSUED BY 4TH RESPONDENT TO THE PETITIONER
EXHIBIT P12 A TRUE COPY OF THE CERTIFICATE NO. 4308/2024
ISSUED BY KOODALI GRAMA PANHAYAT DATED
24.08.2024
