The petitioner has approached this Court, being aggrieved of the callous inaction on the part of the 3rd respondent in effecting/implementing Ext.P5 order dated 26.09.2012 passed by the 2nd respondent, whereby the 3rd respondent was directed to reconsider and fix the liability, if any, under the Kerala Building Tax Act, in respect of the building belonging to the petitioner.
2. The case of the petitioner is that, the building constructed by the petitioner about 35 years back is having a plinth area of just 162.48 M2. Later, in the year 2008, the terrace was covered by 'tin roof' without any side wall, just to protect the building from Sun and Showers. The factual position is discernible from Ext.P2 photographs. But merely for no reason at all, the 3rd respondent proceeded with steps under the Kerala Building Tax Act and issued Ext.P2 order dated 01.09.2008 fixing huge liability upon the petitioner. This was subjected to challenge before the appellate authority, but the same did not turn to be fruitful, as the appeal was dismissed as per Ext.P3. The petitioner availed WP(c). No.29030 of 2014 2 further remedy under the statute by moving the 2nd respondent preferring a revision petition under Section 13 of the Kerala Building Tax Act. This was considered and based on the report submitted by the Deputy Collector who conducted a site inspection on 06.09.2012, the said authority passed Ext.P5 order dated 26.09.2012, directing the 3rd respondent to reconsider the matter and fix the liability based on the relevant circular mentioned therein. According to the petitioner, this has been ignored and Ext.P6 communication has been issued by the 3rd respondent on 09.01.2014, informing the petitioner that in view of some other Circular of the Revenue Secretary, the tax liability can be re-fixed only in respect of buildings, construction of which has been completed, after 05.03.2009. This in turn is under challenge in this writ petition.
3. The learned Government Pleader appearing for the respondents submits on instructions that, Ext.P5 order passed by the District Collector has been referred to in Ext.P6. But it was only because of the subsequent proceedings issued by the Revenue Secretary, as per the relevant Circular and the relevant clarification, that the order passed by the District Collector could be given effect to.
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4. The question to be considered is whether the letter/communication/circular issued by the Revenue Secretary in this regard is to be reckoned as the 'magna carta' for deciding the issue as to the exigibility to tax. The law has already been declared by this Court as per decision in Padmanabhan V. State of Kerala (2009 (1) KLT 294) holding that the 'terrace' portion having roof of the present nature, without any side walls, could not be reckoned for the purpose of fixing the plinth area, as defined under Section 2(k) of the Kerala Building Tax Act. Since the law has already been clarified by this Court, there cannot be any Circular or Order, to water down the effect of such declaration. This being the position, this Court finds that, the petitioner is entitled to succeed. The impugned proceedings are set aside and the writ petition is allowed.
Considering the persuasive submissions made by the learned Government Pleader, this Court reluctantly refrains from awarding cost.
Sd/-
P.R. RAMACHANDRA MENON, JUDGE.
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