IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 OP.No. 25948 of 2002(L) ----------------------- PETITIONER: ------------ 1. P.S.THOMAS, PULIMOOTTIL HOUSE, THODUPUZHA. 2. LUKE STEPHEN, PULIMOOTTIL HOUSE, THODUPUZHA. 3. JOYS P.STEPHEN, PULIMOOTTIL HOUSE, THODUPUZHA. BY ADV. SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER SMT.S.AMINA SRI.SUNIL SHANKER SRI.PAUL ABRAHAM VAKKANAL RESPONDENTS: ------------- 1. TAHSILDAR, THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. K.P. PRADEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 44148 OF 2002 IN OP 25948 OF 2002 DISMISSED 9.1.2008 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PARTITION DEED COCUMENT NO. 677 OF 1996 DATED 15.2.96 EXT.P2 TRUE COPY OF THE LEASE DEED DATED 6.7.96 EXT.P3 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER DATED 23.7.2001 EXT.P3(a) TRUE COPY OF THE OBJECTION FILED BY THE 2ND PETITIONER DATED 23.7.2001 EXT.P3(b) TRUE COPY OF THE OBJECTION FILED BY THE 3RD PETITIONER DATED 23.7.2001 EXT.P4 TRUE COPY OF THE ASSESSMENT ORDER OF THE FIRST RESPONDENT DATED 11.1.2002 EXT.P5 TRUE COPY OF THE DEMAND NOTICE BY THE 1ST RESPONDENT DATED 11.1.2002 EXT.P6 TRUE CUPY OF THE ORDER BY THE 1ST RESPONDENT DATED 7.9.2002 RESPONDENTS' EXHIBITS:; NIL TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 25948 OF 2002 -------------------------------------------- Dated this the 9th day of January, 2008 C.R. JUDGMENT Petitioners are challenging single assessment of a commercial building constructed by them together. The building is a multi-storied building consisting of several rooms. Petitioners' case is that in the course of construction they have partitioned the building and separate rooms are allotted to each of the petitioners. Petitioners have produced ground floor sketch of the building as Ext.P1. This sketch shows that the building consists of only shop rooms, each of which cannot be said to be an independent flat or apartment justifying separate assessments under Explanation II to Section 2(e) of the Building Tax Act. It is seen that common facilities are provided for all the rooms and in fact rooms do not have separate toilet, access, passage, etc. This obviously means that facilities in the building are shared by all the owners and each room is not capable of independent use by any person. Even though petitioner has relied on the decision of this Court in LISSY V. 2 TAHSILDAR, (2000) 3 KLT 497, I do not think petitioners' building can be divided and assessed separately as it is only a shopping complex consisting of separate rooms and not separate apartments or flats. Even though Explanation II to Section 2(e) applies to commercial buildings also, unless the building is divided in such a manner to treat different portions as separate flat or apartment, it cannot be assessed separately. Since each portion of the building is owned by each petitioner, it is for them to share the liability of tax on proportionate basis. However, this does not mean that each portion of the building can be separately assessed as commercial flat or apartment. In the circumstances, the contention of the petitioners that each portion of the building should be assessed in proportion to the holding of each of the petitioners is not tenable and is rejected. 2. Counsel for the petitioners raised a contention that construction of the building was prior to 29.7.1996 by relying on lease deed towards proof of completion of construction of the building. Leasing out the building to a tenant is not evidence towards proof of completion of construction of the building. If the petitioners produce 3 other evidence such as date of taking electric connection, water connection, the date of commencement of payment of property tax to local authority, etc., before the first respondent, he will reconsider the matter and apply the rate applicable as on the date of completion of construction of the building. O.P. is disposed of upholding single assessment, but subject to variation by the first respondent in regard to rate of tax, if petitioners produce proof for completion of construction of building on any date prior to 29.7.1996. (C.N. RAMACHANDRAN NAIR) Judge 4