Dismissed

Yousaf v. the District Collector

Kerala HC7 Sept 2012WP(C)/3686/2012

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging the levy of luxury tax. The core dispute concerned the correct plinth area for tax purposes. While the petitioner relied on an unapproved plan showing 261.02 sq. m, the Court deferred to the reassessment by the Tahsildar at 297.64 sq. m, verified by multiple authorities, refusing interference based on concurrent findings.

What did the court decide?

The writ petition failed and was dismissed.

Yousaf Vs the District Collector — Property and Title | Kerala HC (2012)

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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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FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934

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WP(C).No. 3686 of 2012 (I)

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PETITIONER(S):

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YOUSAF, AGED 45 YEARS S/O.MUHAMMED, AGED 45 YEARS, ATTEGOLI HOUSE, KAYYAR VILLAGE, KASARAGOD DISTRICT.

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BY ADV. SRI.V.N.RAMESAN NAMBISAN

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR KASARAGOD, PIN-670 001.

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2. THE TAHSILDAR

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KASARAGOD, PIN-670 003.

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3. THE VILLAGE OFFICER KAYYAR, KASARAGOD DISTRICT, PIN-670 113.

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BY GOVERNMENT PLEADER SRI.RINNY STEPHEN CHAMAPARAMBIL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.3686 of 2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1:	COPY OF THE PLAN OF THE PETITIONER'S BUILDING PREPARED BY A QUALIFIED, LICENSED ARCHITECT.
EXT.P2:	COPY OF ASSESSMENT ORDER, PROCEEDINGS NO.REF.D4-21161/08 DATED 18.1.2010 ISSUED BY 2ND RESPONDENT ASSESSING THE PETITIONER'S HOUSE FOR TAX AS WELL AS LUXURY TAX.
EXT.P3:	COPY OF THE PETITIONER'S LETTER DATED 2.2.2010 TO THE 2ND RESPONDENT.
EXT.P4:	COPY OF THE TOTAL PLINTH AREA OF 1ST FLOOR OF THE PETITIONER'S BUILDING MEASURED BY SPECIAL TAHSILDAR, FOREST, KASARAGOD.
EXT.P4(a):	COPY OF THE TOTAL PLINTH AREA OF 1ST AND 2ND FLOORS MEASURED BY VILLAGE OFFICER, KAYYAR.
EXT.P4(b):	TOTAL PLINTH AREA OF THE BUILDING PREPARED BY VILLAGE OFFICER, KAYYAR.
EXT.P5:	COPY OF THE PETITIONER'S APPEAL IN PROFORMA AS WELL AS THE AFFIDAVIT SWORN TO IN SUPPORT OF THE APPEAL DATED 31.3.2010.
EXT.P6:	COPY OF ORDER REF.D 2258/10/KBTA 28/10 DATED 1.10.2010 ISSUED BY THE REVENUE DIVISIONAL OFFICER REJECTING EXHIBIT P5 APPEAL.
EXT.P7:	COPY OF REVISION UNDER SECTION 13(4) OF THE KERALA BUILDING TAX ACT FILED BY THE PETITIONER WITH THE 1ST RESPONDENT.
EXT.P8:	COPY OF ORDER NO.B 59861/2010/K.DIS DATED 28.12.2010 OF THE 1ST RESPONDENT.

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.A. TO JUDGE

VPV

ANTONY DOMINIC, J.

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W.P.(C) NO.3686 OF 2012(I)

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Dated this the 7^th day of September, 2012

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J U D G M E N T

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Heard the counsel for the petitioner and the learned

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Government Pleader.

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The issue in the writ petition is the correctness of the levy of the luxury tax under the Kerala Building Tax Act, of a residential building constructed by the petitioner and the main controversy is regarding the correctness of the plinth area of the building as assessed by the respondent. The case of the petitioner is that he constructed the building on the basis of Ext.P1 plan and the plinth area including the car porch is 261.02 square metre. By Ext.P2 he was asked to pay luxury tax in respect of the building on the basis that the plinth area of the building is 297.64 square meter. According to the petitioner, on a representation made by him, the plinth area of the building was assessed by the Special Tahsildar, Kasaragod, who found it to be 258.38 square meter. In spite of it, the Tahsildar reassessed the plinth area and held it to be 297.64 square meter.

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WPC.No. 3686/2012

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:2 :

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It was on this basis the tax was demanded and against the demand, petitioner filed Ext.P5 appeal which was rejected by the RDO by Ext.P6 order. Revision filed before the District Collector was also rejected by Ext.P8. It is in these circumstances the writ petition has been filed contending that the plinth area of the building is only 261.02 square meter and therefore the levy of luxury tax is erroneous.

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On the other hand, the counter affidavit filed by the first respondent shows that the plinth area of the building was initially assessed by the Village Officer, at 305.54 square meter and that in view of the objection filed by the petitioner, the plinth area was verified and reworked by the Special Deputy Tahsildar Forests, Kazaragod, who reported that the plinth area was 258.38 square meter. It is stated that in view of the vide disparity, the Tahsildar, Kazaragod himself verified and remeasured the plinth area and assessed the same at 297.64 square meter. According to the respondents, this area does not include the plinth area of the car porch. Therefore, the respondents contended that since the plinth area of the building is 297.64 square meter, the building attracts levy

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WPC.No. 3686/2012

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:3 :

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of luxury tax and that building tax is also liable to be levied on that basis.

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Case of the petitioner is that construction has been completed by him strictly on the basis of Ext.P1 plan. It is argued that, since construction is so completed, in terms of Section 6 of the Building Tax Act, plinth area has to be assessed based on the plan. Counsel contends that as per the plan the plinth area is only 261.02 square meters. Therefore, according to him, the levy of tax on the basis that the plinth area is 297.64 square meter is illegal.

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Section 6 of the Kerala Building Tax Act reads thus;

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“The plinth area of a building for the purpose 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 the Government on this behalf and verified by the assessing authority.

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Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for storage of fire wood or for non-residential purpose shall not be taken into account for determining the plinth area of that building.”

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A reading of this provision shows that the plinth area of a

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building for the purpose of the Act shall be plinth area of the Building

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as specified in the plan approved by the local authority or such authority as specified by the Government. Ext.P1 does not indicate

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WPC.No. 3686/2012

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that the plan is approved by any of the authorities specified in Section 6. If that be so, the said plan cannot be relied on by the petitioner nor are the respondents bound by the plan.

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Further, this is a case where measurement have been taken by 3 different authorities and the measurement has been confirmed to be as found by the Tahsildar. Apart from Ext.P1, there is no other material available before this court to contradict the assessment by the Tahsildar. In such circumstances also, having regard to the concurrent findings arrived at by the appellate and revisional authorities, I am not persuaded to interfere with the impugned proceedings.

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Writ Petition fails and is dismissed.

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(ANTONY DOMINIC) JUDGE

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vi/

Yousaf v. the District Collector

Case brief

What is this about?

What did the court decide?

Yousaf v. the District Collector

Case brief

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