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2025 Supreme(Online)(Ker) 38829
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ziyad Rahman A. A, J
ROY MATHEW – Appellant
Versus
STATE OF KERALA – Respondent
WP(C) NO. 22817 OF 2025
For the Appellants/Petitioners: SRI.AJU MATHEW, SRI.ABU MATHEW, SHRI.RAGIN ROY, SHRI.ABIJITH C., SHRI.KEVIN SEBY MANIKATHAN, SMT.ANU PAUL
For the Respondents: SMT.RESHMITHA R CHANDRAN
Enclosed areas intended for non-residential use can still be assessed as part of the residential plinth under the Kerala Building Tax Act.
Headnote:(A) Kerala Building Tax Act - Sections 2(k) and 5(5) - Construction of residential property - Assessment of building tax based on total plinth area including non-livable structures like trusses contested. The court determined that enclosed areas indistinguishable from living spaces contribute to total assessed area. (Paras 4, 5, 6)
(B) The statutory definition of plinth area is evaluated against the actual purpose of use, clarifying that enclosures, irrespective of their current use for drying, are still part of the residential structure when enclosed. (Paras 5, 6)
Facts of the case:
The petitioner constructed a residence and later enclosed part of it with a truss to prevent leakage and control heat, leading to disputes over tax assessments based on perceived use.
Findings of Court:
The court found that areas used for drying clothes but enclosed on all sides still counted towards the residential area, affirming the authorities' calculations.
Issues: Whether the area used for drying can be exempted from the plinth area definition under the Act?
Ratio Decidendi: The court ruled that enclosed areas can be assessed as part of a residential building regardless of their intended use, emphasizing adherence to statutory definitions over practical usage.
Result: The writ petition is dismissed.
| Table of Content |
|---|
| 1. dispute over building tax and assessment criteria. (Para 1 , 2) |
| 2. arguments presented against the tax assessment. (Para 3 , 4) |
| 3. court's interpretation of non-residential areas as part of residential tax calculations. (Para 5 , 6) |
JUDGMENT
The petitioner had constructed a single-storied residential house having a total area of 370 M2. Later, above the roof of the said building, a roof of truss was installed, which according to the petitioner was to resist the water leakage and to prevent the heat inside the residential building. However, when the 4th respondent issued Ext.P1 order of assessment of the said building under the provisions of the Kerala Building Tax Act , the total area of residential house was taken as 740.62 M2, which included the roof area, where the truss work was done. Accordingly, the petitioner was directed to remit Rs.84,320/-
towards building tax.
2. In the mean while, the petitioner was also served with Ext.P5 order, imposing luxury tax at the rate of Rs.10,000/- per year, considering the area referred to above. Against Ext.P5 also, an appeal was submitted before the 3rd respondent. Both the appeals were heard together by the 3rd respondent and as per Ext.P7, the same were rejected. As against Ext.P7, a revision petition was submitted before the 2nd respondent, as evidenced by Ext.P8, but it culminated in Ext.P10 order, by which the assessment was confirmed. This writ petition is submitted by the petitioner in such circumstances challenging Exts.P1, P5, P7 and P10.
3. I have heard Sri.Aju Mathew, learned counsel for the petitioner and Smt.Reshmitha R.Chandran, learned Government Pleader for the respondents.
4. Specific contention raised by the learned counsel for the petitioner, while challenging the above referred orders is that, as far as the area where the truss work is installed on the roof of the building is concerned, the same cannot be included for reckoning the total plinth area of the building. According to the petitioner, the said roof was installed only to resist the leakage during the rainy season and a small parapet was also constructed on the sides of the roof ,to protect the roof at the time of the heavy wind. It is also the case of the petitioner that, the said area is not being used for any residential purpose, but instead, it is used for drying cloths and other non-residential activities only. The learned counsel for the petitioner also placed reliance on the observations made by this Court in Xavier J.Ponnezhath v. State of Kerala [2025 (3) KHC 91]
5. However, on going through the observations made in the impugned orders and also the Ext.P2 photographs produced by the petitioner himself, it is evident that the area which is the subject matter in these orders are enclosed with walls on four sides. Of course, it is true that roof begins from a parapet, but practically the same is enclosed on four sides. This aspect was specifically taken note of by the statutory authorities, while rejecting the contentions of the petitioner. As far as the method of calculation of plinth area is concerned, which is defined under Section 2 (k), the 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. Section 5 (5) of the Act, which pertains to the assessment of plinth area, contemplates that, 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 to the plinth area of the main building and the building tax assessed accordingly. Proviso to (5) contemplates 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 to the plinth area of that building. Thus, what is excluded is the structures pertaining to t
