IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR &

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 29^TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 WA NO. 290 OF 2024 AGAINST THE JUDGMENT DATED 16/1/2024 IN WP(C) NO.10156 OF

2023 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:

ALBERT MARTIN, AGED 30 YEARS S/O. MARTIN CHACKO, AGED 30 YEARS, PAMPARAYIL HOUSE, THATTAKKUZHA POST OFFICE, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685581 BY ADVS.

ARUN CHANDRAN THOMAS J.ANAKKALLUNKAL RESPONDENTS/RESPONDENTS:

1 THE TAHSILDAR, THODUPUZHA TALUK, TALUK OFFICE, THODUPUZHA, IDUKKI DISTRICT, PIN - 685584

2 THE REVENUE DIVISIONAL OFFICER, IDUKKI, IDUKKI DISTRICT, PIN - 685603

3 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN -

695001 OTHER PRESENT:

SR.GP-V.K.SHAMSUDHEEN.

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON

29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

Dr. Kauser Edappagath, J.

The appellant preferred the writ petition impugning Exts.P2 and P13 assessment orders passed by the 1^st respondent under the provisions of the Kerala Building Tax Act, 1975 (for short, the Act) in respect of the building belonging to him.

2. The appellant constructed a residential building in

2020-2021. The 1^st respondent assessed the building to building tax and luxury tax, quantifying the plinth area as 543.70 sq. metre. According to the appellant, the total plinth area of his house would come to 274.39 sq. metres only, excluding the car porch area of 18.26 sq. metres. However, the 1^st respondent, while quantifying the plinth area, added the area of the additional temporary roofing put up by him over the roof of the residential building for the architectural beauty and protection of the building The appellant challenged the assessment order of the 1^st respondent before the appellate authority. The appeal was rejected on the grounds of delay. Thereafter, the appellant approached this court by filing WP(C) No.33262/2022, challenging the assessment orders as well as the appellate order. This court disposed of the writ petition, remanding the matter to the 1^st respondent to consider the matter afresh after perusing the documents, if any, filed by the appellant and after hearing him. After remand, the 1^st respondent passed Ext.P13 order including the terrace portion also as part of the building and quantifying the plinth area as 543.70 sq. metre. It is challenging the said order; the appellant is before us.

3. We have heard Sri.Arun Chandran, the learned counsel for the appellant and Sri.V.K.Shamsudheen, the learned Senior Government Pleader.

4. Ext.P13 order is appealable. The appellant has rushed to this court without exhausting the statutory appellate remedy. The contention of the appellant is that the space between the terrace and the additional roof (truss work) cannot be used for residential purposes, and the plinth area of the said place has to be excluded from the plinth area of the building. In support of the said contention, the appellant has relied on two decisions of this court in John Mathew v. Tahsildar, Adoor and Others [2018 (1) KHC 948] and K.Padmanabhan v. State of Kerala [WP(C) No.24487/2005 dated 7/11/2008]. The dictum laid down in the said decisions says that if the structure constructed on the terrace of a building cannot be used for residential purposes, it cannot be included in the plinth area for the purpose of assessment to tax. It is a matter to be looked into by the appellate authority. Hence, this writ appeal is disposed of with a direction to the appellate authority before whom the appellant herein is relegated, to take into account the dictum laid down in the above decisions while deciding the question whether the space between the terrace and additional roof of the appellant's building has to be included in the plinth area for the purpose of assessment of building tax and lux