Dismissed

Eranholikandiyil Siddique v. the Tahsildar

Kerala HC27 Sept 2012WP(C)/11172/2009

Case brief

AI extract

What is this about?

In a writ petition regarding luxury tax levy, the court held that the Tahsildar must measure the petitioner's building with notice and hearing to ascertain the actual plinth area. The interim stay continues for two months pending this verification, with directions to set aside prior orders if the area is under the taxable limit.

What did the court decide?

Interim stay continued for two months; Tahsildar directed to measure plinth area with notice; prior tax proceedings to stand set aside if measured area is less than 278.7 M².

Eranholikandiyil Siddique Vs the Tahsildar — Kerala HC (2012) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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THURSDAY, THE 27TH DAY OF SEPTEMBER 2012/5TH ASWINA 1934

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WP(C).No. 11172 of 2009 (N)

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PETITIONER(S):

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ERANHOLIKANDIYIL SIDDIQUE, S/O.KUNHAMMED, AGED 46 YEARS, BUSINESS RESIDING AT ERANHOLIKANDIYIL, TRIPPENGATTOOR AMSOM KADAVATHUR DESOM, P.O.KADAVATHUR, THALASSERY.

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BY ADVS.SRI.K.P.HAREENDRAN

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SMT.MIJI JOHN

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RESPONDENT(S):

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1. THE TAHSILDAR, THALASSERY TALUK,

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P.O.THALASSERY

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2. DISTRICT COLLECTOR, KANNUR DISTRICT, KANNUR.

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BY ADV. GOVERNMENT PLEADER SRI.RINNY STEPHEN CHAMAPRAMBIL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2709-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC NO.11172/09

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1: TRUE COPY OF BUILDING ELEVATION AND PLAN PREPARED BYU REGISTERED BUILDING SUPERVISOR AND APPROVED BY OVERSEER, TRIPANGATTOOR GRAMA PANCHAYAT.

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EXT.P2: TRUE COPY OF THE ORDER DT 21.1.2006 OF THE TAHSILDAR, THALASSERY ORDER TO PAY LUXURY TAX TO THE BUILDING.

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EXT.P3: TRUE COPY of THE PROCEEDING OF RDO THALASSERY DT 27.6.2006 IN REFERENCE F 1520/06.

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EXT.P4: TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR OF KANNUR IN REF.G1-2007/13223/13 DT 3.12.07.

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EXT.P5: TRUE COPY OF THE LIST OF DOCUMENT PRODUCED BEFORE THE DISTRICT COLLECTOR DT 20.11.2007.

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RESPONDENT'S EXHIBITS

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ANNX.R1 (a): TRUE COPY OF THE RETURN IN FORM II.

//True Copy//

PA to Judge

ANTONY DOMINIC, J. ================ W.P.(C) NO. 11172 OF 2009

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===================

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Dated this the 27^th day of September, 2012

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J U D G M E N T

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Petitioner constructed a residential house and according to the petitioner, the plinth area to be reckoned for the purpose of luxury tax is only 277.2 M² . However, the Village Officer made a report to the Tahsildar indicating that the plinth area of the building is 308.86 M² . Thereupon on the basis that the plinth area is more than 278.7 M² , Ext.P2 order of assessment under Section 5A of the Kerala Building Tax Act was issued levying luxury tax on the building. Petitioner filed appeal before the Revenue Divisional Officer and that was rejected by Ext.P3 and the revision filed by him also was rejected by Ext.P4. A reading of Exts.P2, P3 and P4 orders show that the ground on which the authorities have concurrently held that the plinth area of the building is more than 278.7 M² is on the ground that the petitioner did not substantiate his contention that the plinth area is only 277.2 M² . According to the petitioner, before the District Collector, he had produced copy of Ext.P1 plan along with Ext.P5 memo and that it was despite such production of valid document, the District Collector held that

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:2 :

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WPC.No.11172/09

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the petitioner did not produce any document substantiating his contention.

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I heard the learned counsel for the petitioner and also the learned Government Pleader.

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According to the learned Government Pleader, in the absence of any valid documents produced by the petitioner, the authorities were justified in relying on the report of the Village Officer levying luxury tax on the building.

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Essentially therefore, the controversy can be resolved if the plinth area of the building is properly assessed. A reading of Ext.P2 order of assessment itself show that the Tahsildar himself has not made any verification of the plinth area. Instead he has chosen to accept the plinth area as shown in the report of the Village Officer. Now that the petitioner has raised a serious contention regarding the actual plinth area of the building, it requires to be ascertained whether the plinth area is less than 278.7 M² or more. This controversy can be resolved if the Tahsildar measures the building in question with notice to the petitioner applying the parameters applicable to the Kerala Building Tax Act.

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WPC.No.11172/09

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:3 :

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Therefore, I dispose of this writ petition with the following directions;

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(1) The interim order of stay passed by this Court will continue for another two months.

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(2) In the meanwhile, Tahsildar will measure the plinth area of the residential building constructed by the petitioner with notice and hearing.

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(3) If the plinth area thus assessed is found to be less than 278.7 M² , Exts.P2, P3 and P4 proceedings will stand automatically set aside and in case the plinth area is found to be more than 278.7M² , it will be the responsibility of the petitioner to comply with the obligations under Exts.P2, P3 and P4.

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ANTONY DOMINIC, JUDGE

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Eranholikandiyil Siddique v. the Tahsildar

Case brief

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Eranholikandiyil Siddique v. the Tahsildar

Case brief

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