C.N. Ramachandran Nair, J.
1. Petitioner, an Association of Petroleum Dealers, is challenging Ext.P2 clarification issued by the Government of Kerala clarifying that the Building housing a petrol outlet, called as canopy by the petitioners is a 'Building' assessable to tax under the Kerala Building Tax Act, is liable to be assessed under the Act. In fact, the assessment and demand of tax in the case of a petroleum dealer, who is a member of the petitioner-association, is produced in the W.P. as Ext.P3, which is also under challenge.
2. I heard Counsel for the petitioner Sri. Jaju Babu and Government Pleader, Sri. Sojan James, appearing for the respondents. Counsel for the petitioner relied on another clarification issued by the Government vide Ext.P1 wherein the Government has stated that a canopy constructed by the petrol bunks will not be treated as a building for the purpose of Rule 59(3) of the Kerala Building Rules. Accordingly the Government has stated that a distance of 3 metres from the road side to the building only need be insisted for construction of canopies. Counsel for the, petitioner contends that a canopy constructed for petrol outlet is not understood as a building by the Government, and Ext.P2 clarification is in conflict with another clarification, Ext.P1, issued by another Government Department, and therefore Ext.P2 is arbitrary and untenable. On the other hand, Government Pleader submitted that Ext.P2 clarification has only relevance so far as the Building Tax Act is concerned, and according to him Ext.P1 clarification issued by the Government is only in the nature of exemption from Building Rules. Government Pleader has also relied on the decision of the Supreme Court in Commissioner of Sales Tax, U.P. v. Indra Industries (122 STC 100) and the decision in Collector of Central Excise, Vadodra v. Dhiren Chemical Industries (AIR 2002 SC 453) and contended that Ext.P2 clarification issued under the Kerala Building Tax Act is binding on the authorities and therefore the buildings constructed by the petrol outlets in the form of canopy are assessable to building tax.
3. So far as Building Tax is concerned, a building answering the description of it in the definition contained in the Building Tax Act only has to be assessed to tax, unless exempt under Section 3 of the Act. The definition of 'Building' under Section 2(e) is as follows:
'Building' means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure.
From the above it is clear that the building is given a very wide definition to cover any structure whether made up of masonry, bricks, wood, metal or other material. Even though Counsel for the petitioner contended that the building for the petrol outlet is only a canopy and there are no walls enclosing it, it does not take the structure outside the scope of the definition clause. The traditional concept of building is not the only building contemplated under Section 2(e) of the Act. In fact it is evident from the definition clause itself that buildings excluded from definition are only portable shelter, or any shed constructed principally of mud, bamboos, leaves, grass or thatched or a latrine which is not attached to the main structure. Therefore permanent structures of whatever form constructed with whatever material answer the description of 'Building' under the Act. A building is essentially constructed to suit the requirements of its owner. Necessarily petrol bunk cannot have walls because vehicles have to be driven in and taken out and no enclosure is possible or required for the same. However, it is conceded and it is common knowledge that the structure called canopy by the petitioner is permanent and constructed at high cost either with metal or concrete to last for long term use. Therefore the contention of the petitioner that canopy to house petrol outlet is not a 'Building' under the definition of the term 'Building' contained in Section 2(e) cannot be accepted. The clarification issued by the Government and relied on by the petitioner is in the context of Building Rules wherein the Government probably took into account the nature of business and granted exemption from the Building Rules. The said clarification or observation in a different context does not have any impact in so far as the Building Tax Act is concerned. On the other hand, Section 3(2) of the Act gives power to the Government to decide any question for exemption arising under Section 3(1)(a) and (b) of the Act. Even a clarification sought as to whether a structure is a building or not also can be considered under Section 3(2) of the Act. Therefore Ext.P2 clarification issued by the Government has relevance and binding nature so far as the Building Tax Act is concerned. In any case in viewof the clear definition of the term 'Building' contained in Section 2(e) of the Act, the contention of the petitioner that canopy of petrol bunks cannot be assessed as building under the Act cannot be accepted. No clarification from Government is required for the assessing authority to make assessment of a building ' which comes within the definition of 'Building' under the Act. Therefore, even if impugned clarification is held to be outside the jurisdiction of Government, the same will not help the petitioner.
4. The next contention raised by Counsel for the petitioner is that though the Building Tax Act is in force for long, so far no notice proposing assessment was received by any petrol bunk and therefore the present notice is only speculative in nature and is without jurisdiction. Government Pleader on the other hand submitted that only of late huge structures are constructed by petrol bunks attracting liability under the Building Tax Act and previously they had only one sale room and there was no building of the size attracting liability under the Act. The fact that no assessment was issued earlier will not help the petitioner to escape liability. If the building now constructed is of the plinth area, which attracts liability under the Act, then nothing stops the assessing authority from assessing the building. However, if the assessment under Ext.P3 is on the whole area of the bunk then it is not tenable. An assessment has to be made with reference to the floor area covered by the canopy and offices and other structures in terms of Section 2(k) of the Act read with Section 5(5) of the Act.
Writ Petition is therefore devoid of any merit and the same is dismissed.