Sara Varghese v. State of Kerala represented by its Secretary to Government
2014-04-11
A.M.SHAFFIQUE, MANJULA CHELLUR
body2014
DigiLaw.ai
Judgment : Shaffique, J. 1. This appeal is filed by the writ petitioner. The writ petition is filed challenging the orders passed by the authorities under the Kerala Building Tax Act, 1975, assessing the building of the petitioner for payment of tax. The dispute is with reference to the plinth area of the building. According to the authorities, by virtue of Ext. P2, the measurement is 302.51 M2, in terms of Ext. P5 it is 302.57 M2 and in Ext. P11, it is 308.54 M2. 2. Further, leaving the area of car porch, the petitioner's building is having a plinth area of 291.82 M2 as seen from Ext. P12. 3. The main contention raised by the petitioner is that the petitioner is in possession of a firewood storage room, which is required to be excluded, whereas in Ext. P12, the said area is also computed for the purpose of building tax. 4. The learned Single Judge formed an opinion that in so far as the firewood area is part of the building as evident from Ext. P9 sketch produced by the petitioner and it does not have a separate entrance other than through the dining hall and further that it is not an area appurtenant to the building, the learned Single Judge did not interfere with the findings of the authorities under the Act. 5. Learned counsel for the appellant, relying upon the provisions of the Act, specifically contends that the authorities have committed serious error of law in computing the firewood area as part of the building. That apart, it is contended that there was difference in the measurement at every point of time. Learned counsel points out that the calculation shown at Ext. P12 by itself is wrong in so far as if the car porch area of 17.15 sq. meters is reduced from the total area of 302.57, the area ought to have been 285.42 sq. meters. 6. Apparently, the appellant will become liable to pay building tax as per the plinth area reckoned by the authorities and if the plinth area is more than 278.76 sq. meters, he will be liable to pay luxury tax under Section 5A of the Act. According to the appellant, if the firewood area is reduced from the total area of 285.42 sq. meters, he will not be under obligation to pay luxury tax. 7.
meters, he will be liable to pay luxury tax under Section 5A of the Act. According to the appellant, if the firewood area is reduced from the total area of 285.42 sq. meters, he will not be under obligation to pay luxury tax. 7. Section 5(1), (5) and proviso of the Building Tax Act, which relates to exemption of firewood area reads as under: "5. Charge of building tax:- (1) Subject to the other provisions contained in this Act, there shall be charged a tax (hereinafter referred to as "building tax") based the plinth area at the rate specified in the Schedule on every building the construction of which is completed on or after the appointed day. xx xx xx (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. 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." The authorities have come to the conclusion that the so called firewood area is part of the building which is used as a kitchen. The appellant has produced certain photographs to indicate the kitchen area and the firewood storage area. Annexure II is the said plan. Apparently, it is part of the kitchen. Kitchen is not exempted and it is part of the building which can be computed for the purpose of building tax. Learned counsel for the appellant points out that firewood and materials for lighting fire are stored in the very same area where the kitchen using firewood is also erected. 8. Going by the provisions of the Statute, if an exemption is to be granted, it has to be in respect of a building which is appurtenant to the building and used for the purpose of storage of firewood. If a small portion of the kitchen is used for storage of firewood, it will not amount to a firewood storage place, which could be exempted under the Statute.
If a small portion of the kitchen is used for storage of firewood, it will not amount to a firewood storage place, which could be exempted under the Statute. In the said circumstances, we do not think that the appellant can claim any exemption for the portion of the building, which is alleged to be used for storage of firewood. 9. As far as measurement is concerned, in so far as the petitioner is under obligation to pay luxury tax even if it is either 291.52 M2 or 284.42 M2, the same does not make any difference at all. In the result, we do not think that any of the grounds mentioned by the appellant is available for interference with the judgment of the learned Single Judge. Accordingly, the writ appeal is dismissed.