IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 34143 of 2004(M) ------------------------------------------ PETITIONER(S): ------------------------ 1. STENISLAVOSE, S/O.XAVIER, AGED 52, KALAMBADAN HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE, KUNNATHUNADU TALUK. 2. MUHAMMED, AGED 64, S/O.MEERAKUTTY, PULPAKUDY PUTHENPURAYIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MOOVATTUPUZHA TALUK. ADDL. 3RD PETITIONER IS IMPLEADED 3. NOBLE THOMAS, AGED 29, S/O. STENSILAVOSE @ THOMAS KALAMBADAN HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE KUNNATHUNADU TALUK. ADDL. R3 IS IMPLEADED AS PER ORDER DT. 29.6.09 IN IA.7425/09. BY ADVS. MR.V.RAJENDRAN (PERUMBAVOOR) MR .GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY SECRETARY (TAXES), SECRETARIATE, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD. 3. REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. 4. TAHSILDAR, MOOVATTUPUZHA TALUK, TALUK OFFICE, MOOVATTUPUZHA. 5. NAZEER, S/O.MEERAKUTTY, PULPRA HOUSE, KAVUMKARA KARA, MOOVATTUPUZHA. GOVERNMENT PLEADER MR.P.K.BABU FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34143/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SALE DEED NO.821 DT. 2.3.98 OF MUVATTUPUZHA SUB REGISTRY OFFICE. P2:- COPY OF THE SALE DEED NO.497 DT. 3.2.98 OF MUVATTUPUZHA S.R.O. P3:- COPY OF THE SALE DEED NO.5379 DT. 10.11.00 OF MUVATTUPUZHA S.R.O. P4:- COPY OF THE LIST SHOWING THE DETAILS OF THE PURCHASERS OF VACANT SPACE IN THE GROUND FLOOR. P5:- COPY OF THE LIST SHOWING THE DETAILS OF PURCHASERS OF THE VACANT SPACE IN THE IST FLOOR. P6:- COPY OF THE SALES DEED NO.2938 DT. 3.6.2000 OF MUVATTUPUZHA S.R.O. P7:- COPY OF THE SALE DEED NO.4737 DT. 25.9.00 OF MUVATTUPUZHA S.R.O. P8:- COPY OF THE SALE DEED NO.4118 DT. 31.10.02 OF MUVATTUPUZHA S.R.O. P9:- COPY OF THE NOTICE NO.C6-11320/01 DT. 7.6.02 ISSUED BY 2ND RESPONDENT TO P.M.MOOSA, PULPRA HOUSE, MUVATTUPUZHA. P10:- COPY OF THE ASSESSMENT ORDER NO.C9-11320/01 (1) OF 2ND RESPONDENT DT. 23.7.03. P11:- COPY OF THE JUDGMENT IN WPC. 30168/03 DT. 25.9.03. P12:- COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT DT. 15.10.03. P13:- COPY OF THE ORDER NO.A7-5948/04 DT. 16.10.04 ISSUED BY THE 3RD RESPONDENT. TRUE COPY P.A. TO JUDGE TSS P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 34143 of 2004 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 30th day of June, 2009 JUDGMENT The petitioners 1 and 2 and the 5th respondent were owners of the property in question, who sought to construct a shopping complex on the basis of plan submitted and got approved from the concerned local authority, as sanctioned in this regard. Subsequently, the rights and interest to construct various shop rooms on the ground floor as well as first floor of the building were conveyed to various persons as borne by Exts. P7, P8 and P9 conveyance deeds. Pursuant to the rights and interest conveyed as above, the perspective purchasers constructed the concerned shop rooms in accordance with the approved plan, utilizing there own funds and of course making use of common amenities provided, such as stair case and other measures. The case of the petitioners is that, even though in response to the notice issued by the 4th respondent/assessing authority under the Kerala Building Tax Act, 1975, all the relevant factual aspects as to the nature of the construction were furnished him, the same was not properly considered by the assessing authority, who chose to pass a stereo-typed order as borne by Ext.P10, whereby huge liability has been fixed on the shoulders of the petitioners 1 and 2, assessing the entire building as a 'single unit'. WP (C) No. 34143 of 2004 : 2 : 2. Met with the above circumstances, the petitioners 1 and 2 approached the 3rd respondent/appellate authority by filing Ext.P12 appeal, which was pursuant to the direction given by Ext.P11 judgment to pursue the alternate remedy provided under the Statute. The case of the petitioners is that, eventhough all the necessary testimonials were produced before the 3rd respondent in support of the case of the petitioners, also furnishing the particulars of the different owners who purchased the common undivided interest in the land along with rights to construct the respective portions in the building complex as shown in Exts.P4 and P5 (showing their full address and also the particulars of deeds of conveyance), the appellate authority simply chose to shut his eyes to make it dark and no notice whatsoever was issued to the different owners as above, before finalizing the matter. On the other hand, the appellate authority chose to confirm the impugned order passed by the assessing authority, for the simple reason that the 'sanctioned plan' was in the name of the petitioners 1 and 2 and that no evidence was adduced to show that the construction was effected by different owners. Accordingly, interference was declined in the appeal as per Ext.P13, which is under challenge in the present Writ Petition. 3. During the pendency of the above proceedings, the first petitioner took his last breath whereupon son of the first petitioner got himself impleaded in the party array as the additional 3rd petitioner. The WP (C) No. 34143 of 2004 : 3 : 4th respondent has filed a counter affidavit seeking to sustain the action pursued by the departmental authorities and to justify the assessment of the building as a 'single unit'. The learned Government Pleader appearing on behalf of the respondents submits that, the petitioners did not produce the particulars of the different owners stated as projected in Ext.P4 and P5 before the assessing authority and no material was also produced to show the actual date of completion of the building. 4. The learned counsel for the petitioners submits that, the matter ought to have been considered with specific reference to actual facts and figures by the 3rd respondent/appellate authority, particularly in view of the mandate in Ext.P11 judgment, whereby it was held that petitioners were having effective alternate remedy as provided by the statute itself. 5. Considering the facts and circumstances and the law declared by this Court in Lissy Vs. Tahsildar (2000 (3) KLT 497) and the subsequent decisions on the point holding that, if the construction has been effected by different owners utilizing the funds provided by them, the building is liable to be assessed separately as provided under 'explanation 2' to Section 2 (e) of the Kerala Building Tax Act, this Court finds it necessary to have the matter considered with specific reference to the actual facts and figures. WP (C) No. 34143 of 2004 : 4 : 6. In the above circumstances, Exts.P10 and P13 orders passed by the statutory authorities are set aside and the 4th respondent is directed to consider the matter afresh, giving an opportunity of hearing to the petitioners with liberty to produce all requisite evidence as sought to be relied on their part and also with reference to the documents produced as Exts.P6 to P8 and such other relevant records. The 4th respondent shall issue notice also to the persons enlisted in Exts.P4 and P5 who are stated as the actual owners, according to the petitioners. The proceedings as above shall be finalized as expeditiously as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. P. R. RAMACHANDRA MENON, JUDGE kmd