Kerala High Court
Sheena Joseph vs Village Officer, Muttambalam Village ... on 23 May, 2025
2025:KER:35530
WPC.No.16683/19 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947
WP(C) NO. 16683 OF 2019
PETITIONER:
SHEENA JOSEPH,
AGED 45 YEARS,
W/O.C.K.JOSEPH, CHEENAKALAYIL HOUSE,
MUTTAMBALAM P.O., KOTTAYAM - 686 004.
BY ADV.GIKKU JACOB
RESPONDENTS:
1 VILLAGE OFFICER, MUTTAMBALAM VILLAGE OFFICE
MUTTAMBALAM P.O., KOTTAYAM - 686 004.
2 TAHSILDAR,
OFFICE OF THE TAHSILDAR, REVENUE TOWER,
KOTTAYAM - 686 001.
3 THE REVENUE DIVISIONAL OFFICER
REVENUE TOWER, KOTTAYAM - 686 001.
BY SMT.RESHMITHA R.CHANDRAN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.05.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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WPC.No.16683/19 2
JUDGMENT
The petitioner is the owner of a two storied building
constructed after obtaining a building permit from the Kottayam
Municipality. Ext.P1 is the occupancy certificate issued by the
Kottayam Municipality in respect of the building wherein, the
total plinth area of the said residential building is 270.91
Sq.Metre. This writ petition is submitted by the petitioner being
aggrieved by Ext.P2 proceedings of the 2nd respondent Tahsildar,
by which, a demand was made for luxury tax as contemplated
under Section 5A of the Kerala Building Tax Act, 1975,
pertaining to the years 2014-2015, 2015-2016 and 2016-2017.
Even though the petitioner filed an appeal as evidenced by
Ext.P4 before the 3rd respondent, the same was rejected as per
Ext.P7, in view of the fact that the same is barred by limitation.
It was in these circumstances this writ petition is submitted.
2. I have heard Sri.Gikku Jacob, learned counsel for the
petitioner and Smt.Reshmitha R. Chandran, learned Government
Pleader for the respondents.
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3. The only question that arises for consideration is
whether the assessment made by the 2 nd respondent imposing
luxury tax upon the petitioner is correct or not. According to the
petitioner, Ext.P1 occupancy certificate would show that the
total plinth area is 270.91 Sq.Metre and therefore, the same falls
below the cieling limit of 278.7 Sq.Metre to attract the luxury
tax under Section 5A of the Building Tax Act, 1975.
4. The learned counsel for the petitioner also placed
reliance upon Ext.P5 report submitted by an Architect, wherein
it is mentioned that total plinth area is 287.09 Sq.Metre and
after excluding the car porch, the same is 273.07 Sq.Metre.
Ext.P5(a) is the plan, based on which constructions were carried
out. The learned counsel also places reliance upon Ext.P6
Circular issued by the Government clarifying that while
assessing the plinth area for the purpose of building tax the
garage can be treated as car porch and therefore, the same can
be excluded from the plinth area for the purpose of building tax.
5. On the other hand, the learned Government Pleader
opposed the said contention, mainly pointing out that as far as
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the assessment of the plinth area claimed by the petitioner by
placing reliance upon Exts.P1, P5 and P5(a) is concerned, it
cannot be relied on, in view of the fact that the same was made
either by the Municipality or private Architect, and the criteria
adopted by the respondents herein, for calculating the plinth
area for the purpose of assessment of building tax, is different.
6. On going through Ext.P2 assessment order, it can be
seen that, the plinth area is shown as 290.33 Sq.Metre, but it is
not clear as to whether the same was assessed by taking into
account the plinth area of the car porch or not. Specific case of
the petitioner is that, if the plinth area of the car porch is
excluded, the same would go below the ceiling limit
contemplated under Section 5A of the Kerala Building Tax Act.
7. Section 6 of the Act contemplates that, while
determining the plinth area of a building, the plinth area of the
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.
8. In Ext.P6 Circular, it was further clarified by the
Government that, the word 'garage' used in the proviso to Section
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6 can be treated as 'car porch' while assessing the residential
building under Sub Section 5 of the Kerala Building Tax Act.
Therefore, if the determination of the plinth area of the building as
290.33 Sq.Metre as referred to in Ext.P2 order is inclusive of the
area used as car porch, the assessment needs to have a
reconsideration, in the light of the statutory stipulation contained
in the proviso to Section 6 and also as explained in Ext.P6. Since
Ext.P2 order is completely silent on the said aspect, I am of the
view that the matter requires re-consideration.
In such circumstances, this writ petition is disposed of
quashing Ext.P2, with a direction to the 2 nd respondent to carryout
a fresh measurement of the residential building of the petitioner
after giving notice to the petitioner. Thereafter a fresh assessment
order shall be passed containing particulars of the measurement
made including the details of the total plinth area of the building
and the plinth area of the car porch. Such measurement and the
consequential assessment shall be made, within a period of three
months from the date of receipt of a copy of this judgment. It is
clarified that, the assessment shall be finalized only after giving the
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petitioner an opportunity to submit his objection and an
opportunity for being heard.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
DG/23.5.25
2025:KER:35530
APPENDIX OF WP(C) 16683/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE OCCUPANCY CERTIFICATE
DATED 4.10.2014 ISSUED BY THE ASSISTANT
ENGINEER, KOTTAYAM MUNICIPALITY.
EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED
16.2.2016 OF THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE RECEIPT FOR PAYMENT OF
LUXURY TAX FOR THE THREE CONSECUTIVE
YEAR 2014-2015 TO 2016-2017 DATED
23.2.2016.
EXHIBIT P4 TRUE COPY OF THE APPEAL DATED 11.3.2019
FILED BY PETITIONER BEFORE THE 3RD
RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPORT DATED 19.2.2019
PREPARED BY JACOB CHANDY AND ASSOCIATES.
EXHIBIT P5 TRUE COPY OF THE PLAN.
EXHIBIT P6 TRUE COPY OF THE CIRCULAR DATED
9.12.2008 NO.50947/SC2/08/RD ISSUED BY
GOVERNMENT OF KERALA.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED 10.6.2019
ISSUED BY THE 3RD RESPONDENT.
