Allowed

Geomon Joseph, v. State of Kerala

Kerala HC21 Dec 2023WP(C)/10217/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the inclusion of a covered roof top in the plinth area for building tax. The court set aside impugned orders, noting the petitioner failed to utilize the inspection report stating the area was used only for drying clothes and storage.

What did the court decide?

Impugned orders set aside; matter remanded to District Collector for fresh orders after fresh inspection and hearing.

Geomon Joseph, Vs State of Kerala — Property and Title | Kerala HC (2023)

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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 DINESH KUMAR SINGH

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THURSDAY, THE 21^ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA,

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1945

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WP(C) NO. 10217 OF 2023

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PETITIONER/S:

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GEOMON JOSEPH, AGED 48 YEARS S/O. JOSEPH, ERAPPUMKARA HOUSE, KAIPUZHA P.O., KOTTAYAM, PIN - 686602

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BY ADVS. D.KISHORE MEERA GOPINATH R.MURALEEKRISHNAN (MALAKKARA) ATHUL V. VADAKKEDOM

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001

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2 THE DISTRICT COLLECTOR, CIVIL STATION, KOTTAYAM,, PIN - 686002

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3 THE REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, KOTTAYAM, PIN - 686001

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4 THE TAHSILDAR, TALUK OFFICE, MINI CIVIL STATION, KOTTAYAM, PIN - 686001

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5 THE VILLAGE OFFICER, KAIPUZHA VILLAGE OFFICE, KOTTAYAM, PIN – 686602.

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WP(C) NO. 10217 OF 2023

OTHER PRESENT:

SMT.JASMINE M.M.-GP

THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON 21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 10217 OF 2023

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J U D G M E N T

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The present writ petition has been filed impugning the orders passed by the assessing authority, appellate authority and the revisional authority under the provisions of the Kerala Building Tax Act, 1975 (“Act”, for short) in Exts.P3, P4, P6, P9 and P11, whereby the covered roof top of petitioner's building has been included in the plinth area of the building for levying building tax and luxury tax.

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Sub-Section (5) of Section 5 of the Act provides certain areas, which should not be included while determining the plinth area of the building for assessment. Section 6 of the Act also provides for levying building tax on the plinth area excluding the area constructed for keeping firewood/garage etc. For ready reference, subSection (5) of Section 5 and Section 6 of the Act are extracted hereunder:

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WP(C) NO. 10217 OF 2023

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“ 5. Charge of building tax. (1) xxx xxx xxx xxx xxx xxx

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(5) Where there are out-houses, garages or other structures appurtenant to the building for the more convenient enjoyment of the building, the plinth area of such structure shall be added on the plinth area of the main building and the building tax assessed accordingly:

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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 the purpose of storage of firewood or for any non-residential purpose shall not be added on the plinth area of that building.”

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“ 6. 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.

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Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used

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WP(C) NO. 10217 OF 2023

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for storage of firewood or for any nonresidential purpose shall not be taken into account for determining the plinth area of that building.”

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The assessing and revisional authorities have included the area of the covered roof top in the plinth area to an extent of 113.84 M² . The revisional authority/District Collector called for a report from the Senior Superintendent (Inspection & Vigilance) attached to the office of the District Collector regarding the nature of the roof top. The Senior Superintendent attached to the office of the District Collector made inspection on 10.9.2021. The inspection report, Ext.P8, of the Senior Superintendent would reveal that the first floor roof of the petitioner's building was constructed with iron pipes and tiles, and the tress work was done from the top towards the zero point. The rear porting having a length of 3.80 metres does not join the zero point. The said portion is covered with net for getting air and

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WP(C) NO. 10217 OF 2023

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light. It is further reported that the area having

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an extent of 113.84 M² is having a height of 4.5 metres in the middle and as of now, there is no tiles laid for flooring and the said area is used for drying cloths and for storage purposes.

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Despite the said report, the District Collector in the impugned order in Ext.P9 dated 10.10.2021 has concluded that since the area is habitable, the said area cannot be excluded from the plinth area to determine the building tax and luxury tax.

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Even as per Ext.P8 report, the area is not used for habitation and is only used for drying cloths and storage purpose. Future use cannot be taken into consideration while determining the building tax. If the said area is made habitable and is used for habitation in future, building tax can be revised then. However, at this stage, the area is only used for drying cloths and storage purposes. Therefore, in my view, the report of the Senior Superintendent has not been considered in

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WP(C) NO. 10217 OF 2023

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the right perspective by the District Collector while passing the order in revision.

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In view of the above, the present writ petition is allowed and the impugned orders of the revisional authority/District Collector at Exts.P9 and P11 are hereby set aside and the matter is remanded back to the file of the revisional authority/District Collector to pass fresh orders, after considering the report of the Senior Superintendent at Ext.P8. The petitioner should be given an opportunity of hearing before final order is passed by the District Collector as above. The District Collector may conduct a fresh inspection by an officer to determine the real use of the roof top area of the petitioner's building.

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Pending interlocutory application, if any, in the present writ petition stands dismissed.

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Sd/DINESH KUMAR SINGH JUDGE

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WP(C) NO. 10217 OF 2023

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APPENDIX OF WP(C) 10217/2023

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE REPORT IN FORM NO.I ALONG WITH THE SKETCH SUBMITTED BY THE 5 TH RESPONDENT UNDER RULE 3 OF THE KERALA BUILDING TAX RULES Exhibit P2 TRUE COPY OF THE RETURN SUBMITTED BY THE PETITIONER IN FORM NO.II UNDER RULE 5 OF THE KERALA BUILDING TAX RULES Exhibit P3 TRUE COPY OF THE ORDER OF ASSESSMENT DATED 27.2.2017 IN FORM NO.V AND FORM NO.VI ISSUED BY THE 4 TH RESPONDENT TO THE PETITIONER Exhibit P4 TRUE COPY OF THE PROCEEDINGS NO. 12742/15 DATED 27.2.2017 ISSUED BY THE 4 TH RESPONDENT TO THE PETITIONER Exhibit P5 TRUE COPY OF THE APPEALMEMORANDUM DATED 23.3.2017 IN FORM NO.X SUBMITTED BY THE PETITIONER AGAINST EXHIBITS P3 AND P4 BEFORE THE 3RD RESPONDENT Exhibit P5(a) TRUE COPY OF THE REPRESENTATION DATED 23.3.2017 SUBMITTED BY THE PETITIONER ALONG WITH EXHIBIT P5 BEFORE THE 3 RD RESPONDENT Exhibit P6 TRUE COPY OF THE PROCEEDINGS NO.D1624/2017/R.DIS DATED 27.2.2018 OF THE 3 RD RESPONDENT Exhibit P7 TRUE COPY OF THE MEMORANDUM OF REVISION PETITION DATED 22.3.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2 ND RESPONDENT Exhibit P8 TRUE COPY OF THE INSPECTION REPORT DATED

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WP(C) NO. 10217 OF 2023

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10.9.2021 SUBMITTED BY THE SENIOR SUPERINTENDENT (INSPECTION AND VIGILANCE) BEFORE THE 2 ND RESPONDENT

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Exhibit P9 TRUE COPY OF THE PROCEEDINGS NO.B5-3453/18 DATED 10.10.2021 OF THE 2 ND RESPONDENT

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Exhibit P10 TRUE COPY OF THE APPLICATION DATED 24.4.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2 ND RESPONDENT

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Exhibit P11 TRUE COPY OF THE COMMUNICATION NO.DCKTM/3453/2018 DATED 10.3.2023 ISSUED BY THE 2 ND RESPONDENT TO THE PETITIONER English Translation of Exhibit P5(a) English Translation of Exhibit P6 English Translation of Exhibit P7 English Translation of Exhibit P8 English Translation of Exhibit P9 English Translation Exhibit P10 English Translation of Exhibit P11

Geomon Joseph, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Geomon Joseph, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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