The only question arising in all these cases is whether the covered terrace of residential buildings constitute "plinth area" for building tax assessment. The case of the petitioners is that the truss work and structure constructed to cover the terrace of the building, whether it be with asbestos, tile, metal or fibre sheets, serve the purpose of protecting the building from heat and rain and by giving roof to the terrace, the terrace does not become residential area to assess it as part of plinth area under Section 5(5) read with Section 6 of the Kerala Building Tax Act, 1975 (hereinafter called "the Act"). The question whether covered terrace of concrete structure could be included as part of the plinth area of residential buildings was referred to the Government by the District Collector, Ernakulam at the request of very many building owners and the Government vide Circular No.47999/2003 dated 12.2003 clarified that there is no provision to exclude plinth area of such covered portion and so much so, building has to be assessed by including the plinth area of covered terrace. In fact, in many cases but for the inclusion of plinth area of covered terrace, the buildings would not attract luxury tax payable under Section 5A of the Act as the plinth area excluding the covered terrace is below the limit of 278.7 sq. metres attracting luxury tax. I heard counsel appearing for the petitioners and Government Pleader appearing for the respondents and Advocate Sri.George Thomas who assisted the court.

2. In support of their contention petitioners have relied on the decision of this court in SUBHASHCHANDRABABU V. STATE OF KERALA (2006(2) KLT 189) wherein this court held that the plinth area of garage or any other structure appurtenant to residential building such as used for storage of firewood or other non-residential purpose, should not be taken into account while assessing the building for tax under the Act. The Government Pleader on the other hand relied on decision of this court in 2004(1) KLT 1017 and contended that roof top structure whether it is made with metal, fibre or tile, will constitute "building" within the meaning of that term contained in Section 2(e) of the Act. According to him, roof top with truss work constructed above terrace, whether it be with metal, wood, fibre or tile, is a structure and being appurtenant to the building by virtue of Section 5(5), its plinth area should be added to the plinth area of the building.

3. In order to consider the issue, this court has to necessarily consider the relevant charging provisions contained in the statute and for easy reference, Section 5(1), Section 5(5) and Section 6 are extracted hereunder:

"S.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.

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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.

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 the building.

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S.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.

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