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. 19874 of 2005(N) -------------------------- PETITIONER: ------------------- V.K.SREEKUMARI KUNJAMMA, AGED 54 YEARS, W/O.DR. RAVINDRANATH, "AMRUTHA", HOSPITAL ROAD, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.P.M.MOHAMMED SHIRAZ RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM. 2. THE REVENUE DIVISIONAL OFFICER, FORTKOCHI, ERNAKULAM. 3. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. BY GOVT. PLEADER 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.19874/2005N APPENDIX PETITIONER'S EXTS: EXT - P1 : TRUE PHOTOCOPY OF ORDER NO. B5-2160/01 DATED 16/07/2004 OF 3RD RESPONDENT. EXT - P2 : TRUE PHOTOCOPY OF ORDER OF ASSESSMENT NO. B5-2160/01 OF 3RD RESPONDENT. EXT - P3 : TRUE PHOTOCOPY OF NOTICE OF DEMAND NO. B5-2160/01 DATED 16/07/2004 OF 3RD RESPONDENT. EXT - P4 : TRUE PHOTOCOPY OF PROCEEDINGS NO. B5-2160/01 DATED 16/07/2004 OF 3RD RESPONDENT. EXT - P5 : TRUE PHOTOCOPY OF ORDER NO. G-4404/04-K.DIS DATED 20/10/2004 OF 2ND RESPONDENT. EXT - P6 : TRUE PHOTOCOPY OF ORDER NO B10/57626/04/K.DIS DATED 28/05/2005 OF 1ST RESPONDENT. EXT - P7 : TRUE PHOTOCOPY OF LETTER NO.B5-2160/01 DATED 16/06/2005 OF 3RD RESPONDENT. /TRUE COPY/ PA TO JUDGE RHS P.R.RAMAN, J. ----------------------------------- W.P.(C) No.19874 OF 2005 ------------------------------------ Dated this the 28th day of May, 2008 J U D G M E N T ~~~~~~~~~~~ Petitioner constructed a twin house. He submitted a return as per the provisions of the Kerala Building Tax Act treating the two buildings as separate and independent. Both the building were numbered by the local authority separately. According to him, each building has got an independent existence and to be enjoyed independently. Access to the two buildings are separate. Exit and entry to the buildings are separate. Both have got separate electricity connection and water connection. Thus the enjoyment of one does not depend upon the other. But the authority treated both the building as a single unit for the purpose of computing the tax under the Kerala Building Tax Act, 1975. In other words, the area occupied by both the buildings together were taken as a single unit for the purpose of assessment. There was an appeal against the assessment order which is earlier allowed by way of a remand to the assessing authority. Thereafter, the same view is taken by the assessing officer by Ext.P1 order. Exts.P2, P3 W.P.(C)19874/2005 2 and P4 are demand notices by the 3rd respondent. Though the petitioner preferred an appeal on the question of clubbing of two buildings for the purpose of assessment, the same was decided against the petitioner confirming the order of the assessing officer. The revisional authority has also confirmed the same. Hence this writ petition. 2. Ext.P5 order is the final order passed by the authority rejected the contention of the petitioner. The only reason for treating the two buildings together as per Ext.P6 is that both the buildings have got a common septic tank with one soakpit and no other distinct features were shown for treating the two buildings as one unit. Petitioner contends that this approach by the authority is totally against the accepted principle as to how the two buildings has to be treated whether as a single unit or a different unit. According to him, the mere fact that the two buildings are owned by the same person by itself is no reason to hold that the area occupied by two buildings could be clubbed together for the purpose of assessment and treat the same as a single unit. The mere fact that two buildings are situated adjacent with the common wall in between also does not make W.P.(C)19874/2005 3 any difference so long as such constructions are permissible under the Kerala Building Rules. If, two neighboring owners agreed for construction of a building that there could be a common wall in between and if there is no such prohibition under the Kerala Building Rules for the purpose of construction of such type of buildings as agreed to by them, then there is no reason to hold that the two buildings are to be treated as one building, especially, since the Apartment Ownership Act has already come into force in the State of Kerala, different apartments one above the other would still be owned and possessed by different persons. Therefore, the criteria to be adopted in the matter of treating two buildings as one unit is to see whether both the buildings could separately be enjoyed; whether there were different electricity connection; whether one building could be enjoyed without entering through the other building, in other words whether two buildings could independently exist in the matter of enjoyment of same is a relevant factor. As per the decision of this Court in Lalitha v. State of Kerala [1994(2) KLT 66], the learned Judge held after considering the relevant portion of Kerala Building Tax Act that there is no provision in the Act for clubbing together various W.P.(C)19874/2005 4 buildings constructed by the same owner which are otherwise separate either in the same financial year or otherwise. Two separate units may constitute one building, if they are built for the purpose of one or the 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 numerous buildings like, cottages, kitchen complex, shopping arcade and so on or a factory complex with its appendages may constitute one unit for the purpose of assessment. But when there is no such 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 clubbed together into one or which deems them to be one building. Therefore, it was held that merely because two buildings are owned by the same person there is no criterion to treat the two buildings as one unit. The question as to whether the two buildings in question could be clubbed together therefore depends upon the facts and circumstances of each case. In the present case, the only distinction drawn by the revisional authority is that there is no W.P.(C)19874/2005 5 separate septic tank. No other distinct feature has been shown. Learned Government Pleader however pointed out that there is only one approved building plan for the two buildings. But this argument does not appeal to me. A huge building with several apartments, the builder gives only one plan for approval consisting of all the independent flats and they are constructed based on the agreement between the intending buyer and the builder. It has since been held by the Division Bench of this Court that if the construction is made by the builder using the funds with separate funds provided by the intending buyer then such flats are to be treated as separate units. Therefore the fact that a combined plan is given is also not a decessive test by itself to treat the buildings as one unit. In the circumstances, Ext.P6 is quashed and the matter is remanded to the revisional authority for fresh consideration in accordance with law after hearing the petitioner. The interim stay granted by this Court will continue till fresh orders are passed by the revisional authority (P.R.RAMAN, JUDGE) ps