CHANDRAMOHAN Vs. REVENUE DIVISIONAL OFFICER

JUDGEMENT

(1.) The short question that arises for decision in this case is whether the car parking area provided in the ground floor of the petitioner's residential building is to be treated as part of "plinth area" of the building for the purpose of assessment of building tax and luxury tax under the Kerala Building Tax Act, 1975. The petitioner has produced Ext. P4 series of photographs which show that the disputed area is the car parking area in the ground floor of the residential building constructed on columns. In order to appreciate the contentions, the relevant provisions of the statute have to be referred to, which are as follows:

(2.) There is no dispute that S.5 and 5A of the Building Tax Act provide For assessment of "building tax" and "luxury tax" respectively based on "plinth area" of the building. Therefore the only question is whether part of the ground floor of the building reserved by the petitioner for parking car is "plinth area" of the building in terms of the above provisions of the Act. Counsel for the petitioner relying on the proviso to S.6 of the Act contended that the space for car parking not being used for residential purpose has to be excluded while determining the "plinth area" of the building for assessment of building tax and luxury tax. The Government Pleader on the other hand contended that car parking space being part of ground floor of the building is "plinth area" within the meaning of that term contained in S.2(k) of the Act. He further contended that by virtue of the inclusive definition of "residential building" under S.2(1) and charging S.5(5) of the Act, plinth area of even out houses and appurtenant structures including garage used for more beneficial enjoyment of the main building have to be added on to the plinth area of the main residential building. According to him the exclusion under proviso to S.6 relied on by the petitioner does not cover any part of the main structure of the building and it only refers to separate structures appurtenant to main building including a garage that too if used for storage of firewood or any other non residential purpose. In other words, the respondents' contention is that the ground floor of petitioner's building being part of the main structure of the residential building and answering the description of "plinth area" is not covered by the provisos to S.5 and 6 of the Act which apply only to appurtenant structures and not to any part of the main building.

(3.) In view of definition of "plinth area" contained in S.2(k) of the Act, the petitioner cannot contend, and is not contending, that ground floor of the building part of which is used for car parking does not form part of "plinth area". However, the question to be considered is whether the area of the ground floor reserved for car parking is entitled to exemption in the determination of plinth area under the proviso to S.6, which is the claim of the petitioner. In the first place, the provisos to S.5(5) and 6 are by way of exception to S.2(1) and 5 (5) of the Act. While S.2(1) states that a residential building includes other structures appurtenant to the main building for more beneficial enjoyment of it, the charging Section, namely, S.5(5) specifically provides for inclusion of plinth area of all such appurtenant structures along with the plinth area of the main building. The question to be considered is what is "appurtenant structure" and whether ground floor of a building can be treated as appurtenant structure. The meaning of the word "appurtenant" as contained in the Black's Law Dictionary, 5th Edn., is as follows: