IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 26070 of 2009(C) -------------------------- PETITIONER(S): --------------- 1. SRI. K.M. MOHANDAS, AGED 61 YEARS, S/O. KALIKANDAN MAMU, KRISHNA INN, GURUVAYUR, THRISSUR DISTRICT. 2. JAYASREE MOHANDAS, AGED 51 YEARS, W/O. K.M. MOHANDAS, DO...DO... BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. THE VILLAGE OFFICER, VILLAGE OFFICE, GURUVAYUR. 2. THE TAHSILDAR, TALUK OFFICE, CHAVAKKAD. 3. THE REVENUE DIVISIONAL OFFICER, THRISSUR. GOVERNMENT PLEADER SRI. MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.26070 OF 2009 ------------------------------ Dated this the 24th day of September, 2009 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against Ext.P7 order of assessment of Building Tax, which is confirmed in appeal through Ext.P9 order. According to the petitioners they are the owners of a property having an extent of 85 cents wherein two distinct buildings are situated; one is a five-storied building wherein a hotel is housed and another is an apartment complex having car parking facility in the basement and ground plus other 5 floors. Contention of the petitioner is that the apartment complex is owned by 18 different persons to whom undivided fractional share in the property has already been sold by the petitioners and the complex is built through a builder M/s.Associate Builders, by funds expended by the above said 18 persons. For the purpose of assessment under the provisions of the Kerala Building Tax Act the petitioners have submitted various documents pursuant to notice issued by the 2nd respondent assessing authority. The originals of the sale deeds and agreements were produced before the 2nd respondent. The petitioners contended before the 2nd respondent that the building W.P.(C).26070/09 2 in question is not liable to be assessed as a single unit. It was further contended that the commercial portion and residential portion of the building has to be assessed distinctly under different rates. Yet another contention is that two floors of one of the buildings is used for running an approved educational institution and that portion need to have been exempted from assessment. But the 2nd respondent assessed the entire building as a single unit observing that in a conference held in the office of the District Collector in the presence of the Land Revenue Commissioner and Hon'ble Minister for Revenue, direction was issued to the effect that assessment need be made separately with respect to the distinct flats only if there are registered agreements executed at the time of applying for building permit itself and in other cases the building has to be assessed as a single unit. Further finding is that the two blocks are part of the same building and the assessing authority has treated the two buildings claimed to be separate, as a single unit. It is also stated that since certain parts of the building is used for purposes other than residential, the entire plinth area of the building except residential parts is to be assessed in the category of other buildings. Accordingly a total amount of Rs.15,82,200/- was assessed against the petitioners which was directed to be paid in 4 equal quarterly installments. W.P.(C).26070/09 3 2. Aggrieved by Ext.P7 order of assessment and Ext.P7(a) Demand the petitioner filed statutory appeal before the 3rd respondent. But the appeal was dismissed as per Ext.P9 order. According to the petitioners none of the contentions raised in the appeal memorandum has neither been adverted to nor considered in its proper perspective. The appellate authority had dismissed the appeal in a mechanical manner without looking into the various contentions supported by documentary evidence and materials. Hence it is contended that Ext.P9 is totally unsustainable and is liable to be quashed. 3. Heard senior counsel Sri:K.P. Dandapani appearing on behalf of the petitioners and Government Pleader on behalf of the respondents. It is contended on behalf of the respondents that the writ petition is not maintainable in view of the effective alternate remedy of revision provided under the Act. In the normal course, this Court would not have entertained a writ petition challenging the order passed by the appellate authority, unless the assessee had exhausted all statutory remedies, including remedy by way of revision. But in this case on a scanning of the impugned appellate order it is prima facie clear and evident that the appellate authority has not fully adverted to the contentions raised in the appeal and the reasoning for rejecting the contentions are not at all legal and those W.P.(C).26070/09 4 reasonings are patently opposed to the settled legal precedents. Hence I am inclined to consider and evaluate merits of the impugned order. 4. The main grounds of challenge against the order of assessment can be summarised as follows: (i). The two buildings situated in the property are distinct and are liable to be assessed separately. With respect to one of the buildings in which residential apartments are situated each such apartment belongs to separate persons and those apartments are liable to be treated as separate units, and each such assessment has to be made against the individual owners. The plinth area of the car park is included in the total plinth area taken for assessment, which is to be exempted. (ii). The 4th and 5th floors in the building are occupied exclusively by educational institutions and therefore the said area is liable to be exempted from assessment. The plinth area calculated is not correct because temporary sheds are also reckoned. 5. But while disposing the appeal the 3rd respondent observed that the car parking area cannot be exempted because W.P.(C).26070/09 5 it does not belong to any single residential unit nor it is owned by the residents of the flat. Separate assessment with respect to distinct residential flats was denied on the ground that there is no registered contract between the builder and the residents of the flat with respect to the construction. Further it is observed that the building is constructed as a commercial building. Hence the subsequent use of the building cannot be taken into consideration for the purpose of levying a Building Tax. 6. One of the main grounds for rejecting separate assessment with respect to residential flat is that there is no registered agreement executed between the owners of the flat with the builder. The above stand is taken in view of the guidelines prescribed by the Government through a circular. This Court in the decision of Bavasons Constructions (P) Ltd. Vs. State of Kerala (2007(3) KLT 101) has specifically held that the assessment of Building Tax is a quasi-judicial function and the assessing authority shall not be guided by instructions issued by superior officers or by the Government. It is held that circular issued by the Government that unregistered agreement entered into between the builder and the allottee of the flat shall be ignored, is illegal. In the said decision this Court prescribed parameters as to how building containing residential apartments has to be assessed and what are the materials to be ascertained W.P.(C).26070/09 6 in order to permit assessment in the name of distinct allottees. 7. With respect to plinth area of garage a Division Bench of this Court in Subhashchandrababu Vs. State of Kerala (2006 (2) KLT 189) held that the plinth area of a garage of a residential building shall not be taken into account for determining the plinth area for the purpose of assessment. It is also held that plinth area of any other erection or structure appurtenant to a residential building used for storage of firewood or any non-residential purpose shall not be taken into account for determining plinth area of residential building. 8. So also in the decision in Jameela Vs. Tahsildar (2003 (3) KLT 979) this Court held that if part of a building is used for residential purpose and part as a commercial building the separate parts has to be assessed under different tariffs in accordance with the usage. 9. In the case at hand it is evident from the impugned order that none of the above contentions has been properly adverted to nor considered on the basis of the settled legal position. Therefore it is to be held that the appellate authority had failed in exercising its jurisdiction in a proper manner by applying its mind to all the contentions raised in its proper perspective. 10. Under the above circumstances I am of the opinion W.P.(C).26070/09 7 that the matter need re-consideration at the hands of the appellate authority. Hence Ext.P9 order of the appellate authority is hereby set aside. The matter is remanded to the 3rd respondent for fresh consideration and disposal. The 3rd respondent shall pass fresh orders after affording opportunity to the petitioners for personal hearing and for production of any additional materials. Such order is to be issued as early as possible, at any rate within a period of two months from the date of receipt of a copy of this Judgment. 11. It is brought to my notice that the petitioners had already remitted 1/4th of the total amount of tax covered under the assessment in dispute. Therefore the respondents are restrained from taking any steps for realisation of the balance amount till fresh orders are passed by the appellate authority as per the above directions. Sd/- C.K.ABDUL REHIM, JUDGE. okb //true copy// P.A. To Judge