IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 WP(C).No. 23331 of 2005(C) -------------------------- PETITIONER: ------------ 1. MOHAMMED NAZAR, S/O. HASSAN MOHAMMED, AGED 35, LOVELY GARDEN, CHIRAKKAD ROAD, KUNNATHURMEDU, PALAKKAD. 2. K.M. SHAILA, LOVELY GARDEN, CHIRAKKAD ROAD, KUNNATHURMEDU, PALAKKAD. 3. SHAHEEDA BANU. A., LOVELY GARDEN, CHIRAKKAD ROAD, KUNNATHURMEDU, PALAKKAD. 4. HASSAN MOHAMMED. K., LOVELY GARDEN, CHIRAKKAD ROAD, KUNNATHURMEDU, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, PALAKKAD. 3. THE REVENUE DIVISIONAL OFFICER, PALAKKAD. 4. THE TAHSILDAR, PALAKKAD. ADDL. 5. DISTRICT LABOUR OFFICER, PALAKKAD. (ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 14/11/2005 IN I.A.NO.16637/2005) BY GOVT.PLADER SRI MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.23331/2005 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE REGISTERED SALE DEED DTD. 31/10/2001. EXT.P2 COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S BUILDING. EXT.P3 TRUE COPY OF THE ORDER DATED 23/2/2004 OF THE 4TH RESPONDENT. EXT.P4 TRUE COPY OF THE ORDER DATED 26/8/2004 ISSUED BY THE RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER DATED 15/7/2005 OF THE 2ND RESPONDENT. EXT.P6 TRUE COPY OF THE RECEIPT DATED 10/3/2004 ISSUED BY THE VILLAGE OFFICE, PALAKKAD-3. EXT.P7 TRUE COPY OF THE RECEIPT DATED 10/12/2004 ISSUED BY THE VILLAGE OFFICE, PALAKKAD-3. EXT.P8 TRUE COPY OF THE EXPLANATION DATED 10/12/2004. EXT.P9 TRUE COPY OF THE DEMAND NOTICE DATED 16/2/2005. EXT.P10 TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 1/10/2005. P.R.RAMAN, J. --------------------------- W.P.(C).NO.23331 OF 2005 ---------------------------- DATED THIS THE 28TH DAY OF MAY,2008 JUDGMENT Petitioners admittedly are closely related. But according to them, they represent different families and out of their desire to live close by, they decided to put up individual apartments, though it is structurally one. For that purpose, they entered into an agreement in 2001 whereby the petitioners 1 and 2 agreed to transfer half the right over the property to petitioners 3 and 4 and also decided to meet the cost of construction equally. This was followed by a registered document dated 31/10/2001 actually transferring half the right over the property in favour of petitioners 3 and 4. This document is produced as Ext.P1. Admittedly, this document of transfer comes later to the point of construction. According to the petitioners, the fact that actual ownership was conveyed subsequently by a registered deed is of no consequence, since the cost of construction was met jointly followed by an agreement dated 3/8/2001 between the parties. They have produced some photographs to show that the said apartments have got -2- WP(C).No.23331/2005 separate electric connection and the existence of one does not depend on the other in the sense that each apartment can be enjoyed separately. Placing reliance on some decisions it is contended in such a situation that the building has to be assessed separately and it is impermissible to club the areas of all the four buildings together for the purpose of assessment. This contention was however not accepted by the Assessing Authority or the Higher Authorities in appeal or in revision. Petitioners reiterated their contention as aforesaid to impugn the orders passed by the authorities, who treated all the four buildings as part of the same structure and the areas of all the four buildings were added together for the purpose of assessment. The correctness of the order is therefore under consideration. 2. The facts are therefore not in dispute. The property where the building was constructed originally belonged to petitioners 1 and 2 who subsequently transferred half the right over the property to petitioners 3 and 4 by Ext.P1. Meanwhile four apartments were constructed. Admittedly, the permit for the entire construction stands in the name of petitioners 1 and 2 alone. In the factual situation, whether all the four apartments to be clubbed together arises for consideration. 3. As per Section 2(e) of the Kerala Building Tax Act, the term "building" means a house, out-house, garage, or any other structure or part -3- WP(C).No.23331/2005 thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally by mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure. As per explanation 2 of the said section (definitions) where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building. Reading the main section with Explanation 2, if the building is structurally one where there are different apartments or flats, then to treat such apartments or flats, the conditions provided in Explanation 2 would be satisfied. 4. This Court in Lalitha v. State of Kerala (1994 (2) KLT 66) held that the charge is on the building as such, and not with reference to its owner. There is no provision in the Act for clubbing together various buildings constructed by the same owner either on the same financial year or otherwise. Thus the same owner can construct different buildings; but still each of them will have to be clubbed, merely because he owns all the four buildings, there is no provision for clubbing the areas of all the four buildings together for the purpose of assessment. In other words, the ownership is not determinate to see whether a particular structure could be -4- WP(C).No.23331/2005 called "a building" or not. I say so, because a person can construct a building in a particular locality and suppose he is constructing another building within the distance of 1 km., there cannot be any doubt that both these constructions are to be treated as separate buildings. But then a question will arise when a mutli-storeyed building is constructed by the same owner, whether each such apartment or flat is to be treated as separate building. In such a situation, Explanation 2 will be attracted. This Court in the above decision held that two separate units may constitute one building, if they are built for the purpose of one or other, and are functionally integrated. For example, a house with a garage, out- house for servants, latrines, cow-shed and so on forms an integral unit and has to be assessed as such. A hotel complex which may consist of = of numerous buildings like cottage, kitchen complex, shopping arcade etc. may constitute one unit for the purpose of assessment. But when there is no inherent connection between the buildings, when they do not exist for each other and are otherwise separate, there is no provision anywhere in the Act which requires such separate entities to be clubbed together into one or which deems them to be one building. It is true that the ownership may be transferred later as contended by the petitioners; but then if the cost of construction is met by the four persons jointly, it may be possible -5- WP(C).No.23331/2005 for the petitioners to contend that the buildings in question have to be treated separately. But no acceptable evidence is adduced by the petitioners in this regard. Whether the cost of construction was met by four persons separately is a question of fact, on which no evidence is on record. The construction of the building using joint funds is a matter which could be proved by adducing evidence; but the petitioners have failed in this regard. Therefore, it is not possible to accept the contention that though the ownership is transferred later, the cost of construction has been met by all the four persons together, for the simple reason that there is no material to be acted upon before accepting such a contention. 5. In the above circumstances, it has to be deemed that until the actual ownership is transferred to the other two persons by Ext.P1, it continued to be in the name of petitioners 1 and 2. Permit is also in the name of petitioners 1 and 2. The question whether all the four apartments have got separate access, separate water connection, separate electric connection and whether the existence of one depends on the other, whether it is intended to be used separately, these are all factors which one could say that all the four apartments are separate. If they are separate buildings, the question of treating the area occupied by all such building as one does not arise as held by this Court. This aspect of the matter has -6- WP(C).No.23331/2005 to be examined by the authorities concerned for which purpose the orders impugned in this writ petition are quashed. The matter is remanded for fresh consideration by the assessing authority. The amounts if any, paid will be adjusted towards final liability as assessed. Writ Petition is allowed by way of remand. P.R.RAMAN, Judge. kcv.