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2018 DIGILAW 102 (KER)

John Mathew v. Tahsildar

2018-01-30

P.B.SURESH KUMAR

body2018
JUDGMENT : 1. Petitioner has constructed a residential building. The plinth area of the building is 257.20 square meters. The said building has been assessed by the competent authority under the Kerala Building Tax Act, 1975 (the Act). Ext.P3 is the order of assessment. In Ext.P3 order, the plinth area of the building has been reckoned as 372.08 square meters, by adding the area covered by the structure built by the petitioner over the terrace of the building also. According to the petitioner, the structure made by him over the terrace of the building was for the architectural beauty of the building and also for keeping things such as water tank etc. and therefore the same cannot be added to the plinth area of the building for the purpose of assessment under the Act. The petitioner, therefore, challenged Ext.P3 order in appeal before the appellate authority under the Act. Ext.P4 is the order passed by the appellate authority. Relying on a circular issued by the Government, the appellate authority found that the structures made on the terrace of concrete buildings, other than structures with side openings, are liable to be included in the plinth area of residential buildings for assessment under the Act. In other words, the view taken by the appellate authority is that in so far as the structure constructed by the petitioner on the terrace of the building does not have side openings, the same is liable to be treated as part of the building and the area is liable to be included in the plinth area of the building for the purpose of assessment under the Act. In Ext.P4, the appellate authority also found, after causing an inspection of the building to be made, that if the area of the said structure is also added to the plinth area, the total plinth area would come to more than 372.08 square meters. In terms of Ext.P4 order, the appellate authority, in the circumstances, remitted the matter for fresh consideration to the assessing authority. Ext.P5 is the order passed, thereupon, by the assessing authority. In terms of Ext.P4 order, the appellate authority, in the circumstances, remitted the matter for fresh consideration to the assessing authority. Ext.P5 is the order passed, thereupon, by the assessing authority. The assessing authority, relying on Ext.P7 judgment of this Court, found that the area covered by the structure erected by the petitioner on the terrace of the building is also liable to be included in the plinth area of the building and that if the said area is also included, the plinth area would come to 440.32 square meters. Ext.P6 is the modified assessment order issued by the assessing authority in tune with Ext.P5 order. The petitioner challenged Ext.P6 modified order in revision before the District Collector, and in terms of Ext.P9 order, the District Collector confirmed Ext.P6 order of assessment. Ext.P6 order of assessment and Ext.P9 order confirming Ext.P6 order in revision by the District Collector, are under challenge in the writ petition. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. There is no dispute to the fact that if the area covered by the structure erected by the petitioner on the terrace of the building is excluded, the plinth area of the building would come only to 257.20 square meters. The question, therefore, is as to whether the area covered by the structure erected by the petitioner on the terrace of the building is liable to be included in the plinth area of the building for the purpose of assessment under the Act. The definition of "building" as contained in Section 2(e) of the Act reads thus : (e) “building” means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure. "Plinth area" is defined in Section 2(k) of the Act. The said definition reads thus : “(k) ‘plinth area’ means the area included in the floor of a building and where a building has more than one floor the aggregate area included in all the floors together: Provided that in the case of a building referred to in the Explanation 2 to Clause (e), the plinth area shall be calculated separately. There is a separate definition for "residential building" in the Act. The said definition contained in Section 2(l) reads thus : (l) ‘residential building’ means a building or any other structure or part thereof built exclusively for residential purpose including out-houses or garages appurtenant to the building for the more beneficial enjoyment of the main building but does not include hotels, boarding places, lodges and the like.” The charge of building tax is governed by Section 5 of the Act. Sub sections (1) and (5) of Section 5, which are relevant in the context, read thus : “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 on 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.” x x x x x x (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. Section 6 of the Act deals with determination of plinth area. Section 6 reads thus : “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.”. 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.”. Provided that the plinth area of a 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 for determining the plinth area of that building.” There is no doubt that a structure constructed on the terrace of a building is a structure in itself answering the definition of "building" and therefore, its plinth area would constitute the part of the plinth area of the main building. While sub-section (5) of Section 5 provides that where there are outhouses, 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, the proviso to the said sub-section clarifies that the plinth area of a 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 added on the plinth area of that building. It is thus clear from the aforesaid statutory provision that if the structure constructed on the terrace of the building can be used for residential purpose, the same is liable to be included in the plinth area for the purpose of assessment under the Act. The question in cases of this nature, therefore, would be whether the structure can be used for residential purposes. This is a pure question of fact to be decided having regard to the facts of each case and having regard to the scope of the expression "residential purpose". The question in cases of this nature, therefore, would be whether the structure can be used for residential purposes. This is a pure question of fact to be decided having regard to the facts of each case and having regard to the scope of the expression "residential purpose". When the provisions of the statute, especially the proviso to sub-section (5) as also the proviso to Section 6 indicate that the area of the appurtenant structures constructed to a residential building for the purpose of storage of fire wood and similar is not liable to be included in the plinth area of the building for the purpose of assessment under the Act, it is clear that the expression 'residential purpose' used in the statute means human habitation, otherwise, there is no reason why the area covered by the appurtenant structures used for storage of firewood and similar shall be excluded from the plinth area of the building for the purpose of assessment under the Act. In other words, only the area which is fit and intended for human habitation is liable to be reckoned as plinth area of the building for the purpose of assessment under the Act. The said view is seen taken in Ext.P7 judgment by this Court in an almost identical case, the relevant portion of which reads thus :- "Even though the terrace covered with roof may be used for several purposes such as drying of clothes, for recreational purposes, etc., such use cannot be treated as use for residential purpose." 4. The learned counsel for the petitioner, relying on the photograph produced by the petitioner as Ext.P2 in the writ petition, vehemently contended that the structure on the terrace of the building of the petitioner is made only for the architectural beauty of the building and the same cannot be used for human habitation, though some access is provided to that portion of the building for incidental uses similar to storage of firewood etc. and that therefore, the impugned orders are not justified. This, of course, is a matter to be examined by the competent authority after conducting a fresh inspection of the building as there is no finding rendered by the assessing authority on the issue as to whether the said structure is fit for human habitation. 5. and that therefore, the impugned orders are not justified. This, of course, is a matter to be examined by the competent authority after conducting a fresh inspection of the building as there is no finding rendered by the assessing authority on the issue as to whether the said structure is fit for human habitation. 5. The learned Government Pleader contended that the clarifications in the statute are in respect of appurtenant structures attached to the building like car porch etc. and that the structure constructed on the terrace of the building cannot be construed as an appurtenant structure to the residential building. The dictionary meaning of the word "appurtenant" is "a thing that forms a part of larger or more important". Black's defines the word 'appurtenant' as "annexed to a more important". It is, therefore, difficult to accept the contention of the learned Government Pleader that the structure erected on the terrace of the building would not fall within the scope of “appurtenant structures” mentioned in the Act. In the result, the writ petition is allowed and the impugned orders are set aside. The assessing authority is directed to reconsider the matter after causing a fresh inspection of the building to be made and after ascertaining whether the area covered by the structure erected on the terrace of the building is fit for human habitation.