IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 WP(C).No. 4651 of 2007(D) ------------------------- PETITIONER(S): --------------- J.M. TOWERS APARTMENT OWNERS ASSOCIATION, REPRESENTED BY ITS PRESIDENT JOSE ANTONY PAZHAMPILLY, 9B, JM TOWERS, PALLIKKAVU TEMPLE ROAD, VADUTHALA, KOCHI-682 023. BY ADV. MR. P.V.CHANDRAMOHAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, KANAYANNOOR TALUK, ERNAKULAM. 3. THE VILLAGE OFFICER, CHERANELLORE VILLAGE, ERNAKULAM. GOVERNMENT PLEADER MR.K.P. PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).4651/07 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF CONSTRUCTION AGREEMENT OF AN APARTMENT EXT.P2:- TRUE COPY OF STATEMENT OF ACCOUNTS EXT.P3:- TRUE COPY OF SALE DEED EXECUTED BY THE COURT RECEIVER EXT.P4:- TRUE COPY OF PROPERTY TAX RECEIPT ISSUED BY CORPRN. OF COCHIN EXT.P5:- TRUE COPY OF ELECTRICITY BILL OF OWNER EXT.P6:- TRUE COPY OF RECEIPT ISSUED BY R3 EXT.P7:- TRUE COPY OF ASSESSMENT NOTICE DT.29.11.06 EXT.P8:- TRUE COPY OF DO DO. DT.21.12.06 EXT.P9:- TRUE COPY OF OBJECTION DT.5.1.07 EXT.P10:- TRUE COPY OF ASSESSMENT NOTICE DT.12.1.07 EXT.P11:- TRUE COPY OF DEMAND NOTICE DT.12.1.07 EXT.P12:- TRUE COPY OF LETTER OF R1 DT.1.6.05 EXT.P13:- TRUE COPY OF JUDGMENT IN WP(C).2018/07 DT.17.1.07 RESPONDENT'S EXHIBITS:- NIL OKB //TRUE COPY// P.A. TO JUDGE C.K.ABDUL REHIM, J. ---------------------------------- W.P.(C).No.4651 OF 2007 ---------------------------------- Dated this the 24th day of March, 2010 J U D G M E N T ---------------------- 1. Petitioner is an Association of owners of residential apartments contained in a complex, named “JM Towers” situated at Vaduthala, Cochin. Grievance of the petitioner is against assessment and demand of Building Tax made against them under Ext.P10 and P11, under the Kerala Building Tax Act, 1975. According to the petitioner, the complex in question was constructed by a Builder, namely 'Jyomon Builders and Real Estate (Pvt.) Ltd'. Construction of each residential apartment was completed on behalf of individual owners who had purchased undivided share in the land along with right to construct specific apartment therein. All of them have executed distinct agreements with the Builder, entrusting construction of each apartments and cost of such construction was met by each of them. A specimen copy of the Sale Deed of transfer of undivided share in the property as well as agreement executed with the Builder are produced as Ext.P3 & P1 respectively. It is W.P.(C).4651/07 -2- further submitted that the local authority, the Cochin Corporation, had assessed property tax in the name of individual owners. The petitioner Association is formed after completion of the construction and occupation of the apartments, only with an objective of providing common amenities and common facilities in the complex. 2. Contention of the petitioner is that the Association cannot be held any way liable for payment of the Building Tax. It is stated that on receipt of Ext.P7 and P8 notices issued by the 2nd respondent, the petitioner Association had submitted detailed reply as per Ext.P9, wherein all details regarding owners of distinct apartments were furnished to the 2nd respondent. Through Ext.P9 the 2nd respondent was requested to initiate proceedings for separate assessment of each apartment, by giving notice to individual owners. But without considering Ext.P9, assessment was finalised and demand was raised as per Ext.P10 and P11. 3. In the counter affidavit filed on behalf of the respondents it is contended that on receipt of notice by the President of the petitioner Association, he appeared for a hearing on 8.12.2006. But no documents were produced to W.P.(C).4651/07 -3- substantiate that separate assessment is to be made with respect to individual apartments. It is further contended that the documents produced were inadequate for allowing separate assessment and therefore the assessment is made against the petitioner Association treating the entire complex as one building. 4. Heard, Sri. P.V. Chandramohan, learned counsel appearing for the petitioner and Sri.K.P. Pradeep, learned Government Pleader. The writ petition is opposed on the ground that there is an effective alternate remedy provided by way of appeal. It is noticed that the petitioner Association is not the owner of the building nor it is the builder who had constructed the complex. Therefore it is prima facie evident that the assessment is made on a wrong person, in total erroneous exercise of jurisdiction vested on the authority. Therefore inspite of the alternate statutory remedy available I am inclined to entertain this writ petition. 5. Explanation 2 to Section 2(e) of the Kerala Building Tax Act, 1975 provides that in case of a building which consists of different apartments or flats owned by different persons and the cost of construction of the building was met W.P.(C).4651/07 -4- by all such persons jointly, each such apartment or flat will be deemed as separate building. In the case at hand the 2nd respondent had failed to issue notice to individual owners of different apartments. The question as to how the assessment has to be completed in cases like this was elaborately dealt in the decision of this court in M/s.Bavasons Constructions (P) Ltd. Vs. State of Kerala (2007 (3) KLT 101). None of the requirements enumerated therein nor any procedure to be followed, are complied with in the case at hand. Hence Exts.P10 and P11 are hereby quashed. The 2nd respondent is directed to complete the assessment afresh after issuing notice to all the individual owners and the Builder. A fresh decision regarding eligibility for separate assessment shall be taken on the basis of evidence regarding expenditure of amounts required for the construction. Such notice shall be issued to individual apartment owners who had entered into agreements with the Builders and who were owners at the time of completion of the construction. While completing the assessment, the 2nd respondent shall take note of principles laid down in the case of M/s.Bavasons Constructions (cited supra) and subsequent decisions of this court on the subject. W.P.(C).4651/07 -5- The fresh assessment as directed above shall be completed as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb