IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 OP.No. 13754 of 2002(K) ---------------------------------- PETITIONER: ------------------- KACHAYI PUTHIYAPURAYIL MOHAMMED ASHRAF, S/O. MUHAMMED, KANNUR I VILLAGE, POST THANA, KANNUR. BY ADV. SRI.M.RAMESH CHANDER, ADV. SMT.K.A.SANJEETHA. RESPONDENTS: ----------------------- 1. DISTRICT COLLECTOR, KANNUR. 2. TAHSILDAR, KANNUR TALUK, KANNUR - 670 002. BY GOVERNMENT PLEADER SMT. T.B. REMANI. THIS ORIGINAL PETITION HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.13754 of 2002-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of March, 2008. JUDGMENT The petitioner is challenging Ext.P4 order of assessment under the Kerala Building Tax Act. The petitioner along with 37 others purchased 38 ½ cents of land in T.S. No.2, Ward 2, Block I of Kanathur desom in Kannur II Village of Kannur Taluk. It is stated in paragraph 2 of the original petition that the building contains 42 apartments and each apartment in all the floors are occupied and possessed separately. It is also stated that in order to have a specific and convenient enjoyment, partition deed No.3591/1996 dated 23.7.1996 of S.R.O., Kannur was executed. As per this deed of partition ownership of the apartment or apartments together stand allocated distinctly to each individual. 2. I heard Shri M. Ramesh Chander, learned counsel for the petitioner and the learned Govt. Pleader for the respondents. Learned counsel for the petitioner pointed out that respective owners of the apartments had filed separate returns before the assessing authority. Learned counsel submitted that going by the scheme of the Act especially Explanation 2 to Section 2(e) of the Kerala Building Tax Act, the OP 13754/2002 -2- assessment can be made only on the premise that each such apartment or flat be a separate building. 3. In paragraph 4 of the counter affidavit, it is submitted that each individual has filed Form II return under sub-section (1) or (3) of Section 7 or 8 of the Act by specifying the floor area of the respective portions they have claimed to be owned. 4. The manner by which the assessment has to be finalised in a case like this, has been laid down by this court in Bavasons Constructions (P) Ltd. v. State of Kerala (2007 (3) KLT 101). The relevant findings are extracted below: “The assessing authorities shall consider the claim relating to each flat and render a separate speaking decision with reference to each flat. A common order can be passed for each residential complex. But, in that order, there should be separate finding regarding each flat/apartment. In case any flat is remaining unallotted, the assessment in respect of such flat shall be made, treating the builder as the owner. In case, in relation to a particular flat, sufficient materials are not produced to support the claim for the benefit of Explanation 2 to S.2(e), then also, the assessment shall be made, treating the builder as the owner of the apartment. While making separate assessments of the flats, the common areas shall also be divided on pro rata basis, so that the entire built up area of the building is assessed to building tax. The petitioners shall also furnish the correct addresses, as far as possible, of the allottees of the flats, to the assessing authorities. The assessing authorities shall afford an opportunity of being heard to the petitioners-builders and the individual flat owners and pass final orders in the matter, as far as possible, before 30.7.2007. They shall, as stated earlier, deal with OP 13754/2002 -3- the assessment relating to every flat/apartment separately, with reference to the documents produced.” In the light of the dictum laid down in the above case, the matter requires reconsideration at the hands of the assessing authority. 5. It is pointed out by the learned counsel for the petitioner that apart from the petitioner, only one person alone was served notice by the assessing officer and going by the contentions raised, all the respective apartment owners have to be served notice and they should be allowed an opportunity to adduce evidence also. I see force in the above submission. 6. Therefore, Ext.P4 is quashed. The second respondent will reconsider the matter in the light of the dictum laid down in Bavasons' case (2007(1) KLT 101). He should specifically examine the case as regards the applicability of Section 2(e) and Explanation 2 thereof and shall pass a speaking order after affording opportunities for hearing to the respective apartment owners. He may also examine whether the building is a commercial complex or whether it consists of apartments as claimed by the petitioners. 7. Pursuant to the interim order passed by this court in C.M.P. No.23054/2002 the petitioner has remitted a sum of Rs.1,50,000/-. The extent of liability, if any, of the petitioner for payment of tax will depend OP 13754/2002 -4- upon the order which is to be passed by the assessing authority. If the petitioner is not found liable for the entire amount or to the extent of the amount that is now deposited, the balance amount after deducting the liability of the petitioner, will be refunded. The Tahsildar is directed to pass appropriate orders within a period of five months from the date of receipt of a copy of this judgment. The petitioner is directed to furnish a list showing the names and addresses of the respective owners of the apartments to enable the Tahsildar to proceed with the matter. This shall be done within one month from today. The original petition is disposed of as above (T.R. Ramachandran Nair, Judge.) kav/ OP 13754/2002 -5- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.13754 of 2002-K - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 6th March, 2008.