IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 19^TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946 WP(C) NO. 989 OF 2023 PETITIONER : MATHEW M.M., AGED 58 YEARS MLAKUZHIYIL HOUSE, KADAVOOR P.O., SOUTH PUNNAMATTOM, ERNAKULAM, PIN - 682671 BY ADV N.A.SHAFEEK RESPONDENTS :

1 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030

2 REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, PIN - 686661

3 THE TAHASILDAR TALUK OFFICE, MUVATTUPUZHA, PIN - 686661

4 KALLOORKADU GRAMA PANCHAYATH MUVATUPUZHA, REPRESENTED BY ITS SECRETARY, PIN - 686668 BY SMT.JASMIN M.M., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BECHU KURIAN THOMAS, J.

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W.P.(C).No.989 of 2023 =-=-=-=-=-=-=-=-=-=-=-=-=-=

Dated this the 19^th day of February, 2025

JUDGMENT

Petitioner challenges an order of assessment issued under Section 5A of the Kerala Building Tax Act, 1975 (for short, 'the Act').

2. Petitioner had constructed a building in 11 Ares of property situated in Survey No.985/7A-1-2 and 985/7B-3 of Kalloorkadu Village, Muvattupuzha Taluk. The total plinth area of the building is 304.68 Sq.m. for which the petitioner has already been assessed to building tax. However, when the building was assessed to luxury tax as per Ext.P3, treating the entire building as residential, an appeal was preferred before the Revenue Divisional Officer contending that out of the entire building, an extent of 42.76 Sq.m. is being used as a commercial building and hence, luxury tax cannot be imposed as the plinth area of the residential building was only 261.92 Sq.m. The Appellate Authority, however by Ext.P5 order, dismissed the said appeal and the revision preferred before the District Collector, also suffered the same fate as seen from Ext.P6. Thus, petitioner has approached this Court under Article 226 of the Constitution of India.

3. A counter affidavit has been filed by the 3^rd respondent pointing out that the completion plan of the building showed a total plinth area of 304.68 Sq.m. and since the building falls under the category of 'special residential', it can be used only for residential purposes. It is also stated that the building permit was granted as a special residential building and that the impugned orders are not liable to be interfered with.

4. I have heard Sri.N.A.Shafeek, the learned counsel for the petitioner as well as Smt.Jasmin M.M., the learned Government Pleader.

5. Petitioner claims to be using a small portion of his residential building for a commercial activity. On the basis of the said use, he claims that luxury tax under Section 5A of the Act is not attracted since the part of the building used as a residence, falls below the cut off limit of 278.7 Sq.m.

6. A reading of Section 5A indicates that charge of luxury tax is on a residential building, provided the plinth area of such a building is 268.7 Sq.m. or more. The building permit was obtained by the petitioner as a residential building under the category 'special residential'. A change in the category of building in an attempt to evade the liability of luxury tax cannot be permitted, since, essentially it is the nature of structure that determines whether the liability for luxury tax will befall on the building or not.

7. In the decision in Ayshakunji v. Tahsildar [2012 (4) KLT

193], a Division Bench of this Court had observed that the liability under Section 5A is only on a residential building and it is essentially the nature of the structure that determines whether the building is residential or not. It was further observed that ever so many residential buildings are used partly or fully and even temporarily for non-residential purposes and there may also be cases of partial letting of a residential house for non- residential purposes. However, non-residential use of a portion of a residential building does not affect its