PADMANABHA Vs. STATE OF KERALA

JUDGEMENT

(1.) The only question arising in all these cases is whether the covered terrace of residential buildings constitute "plinth area" for building tax assessment. The case of the petitioners is that truss work and structure constructed to cover the terrace of the building, whether it be with asbestos, tile metal or fiber sheets, serve the purpose of protecting the building from heat and rain and by giving roof to the terrace, the terrace does not become residential area to assess it as part of plinth area under Section 5(5) read with Section 6 of the Kerala Building tax Act, 1975 (hereinafter called "the act"). The question whether covered terrace of concrete structure could be included as part of the plinth area of residential buildings was referred to the Government by the District Collector, Ernakulam at the request of very many buildings owners and the Government vide Circular No. 47999/2003 dated 5.12.2003 clarified that there is no provision to exclude has to be assessed by including the plinth area of covered terrace. In fact, in many cases but for the inclusion of plinth area of covered terrace, the buildings would be attract luxury tax payable under Section 5A as the plinth areas excluding the covered terrace is below the limit of 278.7 sq. meters attracting luxury tax. I heard counsel appearing for the petitioners and Government Pleader appearing for the respondents and Advocate Sri. George Thomas who assisted the court.

(2.) In support of their contention petitioners have relied on the decision of this Court in Subhashchandrababu v. State of Kerala, wherein this could held that the plinth area of garage or any other structure appurtenant to residential building such as used for storage of fiber-wood or other non-residential purpose, should not be taken into account while assessing the building for tax under the act. The Government Pleader on the other hand relied on decision of this Court in All Kerala Federation of Petroleum Traders v. State of Kerala, and contended that rood top structure whether it is made with metal, fiber or tile, will constitute building" within the meaning of that term contained in Section 2(e) of the Act. According to him, roof top with truss work constructed above terrace, whether it be with metal, wood, fibre or tile, is a structure and being appurtenant to the building, by virtue of Section 5(5), its plinth area should be added to the plinth area of the building.

(3.) In order to consider the issue, this Court has to necessarily consider the relevant charging provisions contained in the stature and for easy reference, Section 5(1), Section 5(5) and Section 6 are extracted hereunder: