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. 138 of 2005(N) ------------------------ PETITIONERS: ------------ 1. VALIYA PEEDIKAYIL MARIYUMMA, D/O.SARUMMA, BEERICHERRY, SOUTH THRIKARPUR, P.O.THRIKARPUR, KASARAGOD DISTRICT. 2. PUTHALATH SULAIMAN, S/O.KUNHAMINA, BEERICHERRY, SOUTH THRIKARPUR, P.O.THRIKARPUR, KASARAGOD DISTRICT. 3. VALIYA PEEDIKAYIL THOUFEEQUE, S/O.MARIYUMMA, BEERICHERRY, SOUTH THRIKARPUR, P.O.THRIKARPUR, KASARAGOD DISTRICT. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, KANNUR. 2. THE SPECIAL TAHSILDAR (RR), TALIPARAMBA. 3. THE VILLAGE OFFICER, PAYYANNUR. 4. THE TAHSILDAR, TALIPARAMBA, ASSESSING AUTHORITY(BUILDING TAX). BY GOVERNMENT PLEADER SRI MATHEW VADAKKEL R1 TO 4 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.138/2005 N APPENDIX PETITIONER'S EXTS: Exhibit P1 :- True copy of registered jenm sale deed No. 3299/90 executed by Mariyumma dated 9/11/90 Exhibit P2:- True copy of the registered jenm sale deed No.3300/90 dated 9/11/90 executed by Mariyumma. Exhibit P3:- True copy of the assessment building tax as per order bearing No.D3-14813/98 dated 24/8/2000 passed by the 4th respondent. Exhibit P4:- True copy of the order passed by the appellate authority dated 10/11/2004. /TRUE COPY/ P.A TO JUDGE C.M. P.R.RAMAN, J. ---------------------------------- W.P.(C) No.138 OF 2005 ------------------------------------ Dated this the 28th day of May, 2008 J U D G M E N T ~~~~~~~~~~~ The challenge made in this writ petition is against Exts.P3 and P4. Ext.P3 is a notice of demand raised against six persons jointly to pay an amount of Rs.2,05,200/- in four installments by way of building tax in respect of a building situated in Payyannur Municipality in survey No.31/3B of a built up area of 1291.54 m2. The 1st petitioner is the mother, the 2nd petitioner is her son-in-law and the 3rd petitioner is her own son. It is the contention of the petitioners that Smt.Mariyumma owned the land where she put up construction of ground floor of the building with her own funds. Thereafter, the space over the ground floor was sold retaining the 2/5th right in herself and the balance 3/5th sold in favour of other parties including the 2nd petitioner. The 2/5th right reserved in her favour was subsequently gifted by Ext.P2. According to the petitioners, construction of the first floor was made over the ground floor by them using their funds, though the building has got only one number, since all the six persons have got independent ownership over the respective area. The assessment of the W.P.(C)No.138/2005 2 building has to be separately made without clubbing the area of the two floors together and the two floors be separately assessed. This was not accepted by the assessing authority and the revisional authority. In Ext.P4 it was held that Exts.P1 and P2 are not documents shown to have been acted upon. If separate licence for construction of building was obtained by them, nothing prevented from producing the same. In the absence of any evidence produced that the construction was made in the name of the transferee, the revisional authority and the assessing authority did not accept the contention. Hence this writ petition. 2. Learned counsel, Sri.Amaresan, appearing on behalf of the petitioners would contend that Exts.P1 and P2 are registered deeds executed in favour of the assignees. Ext.P1 is a sale deed after obtaining consideration, where as Ext.P2 is a gift deed. It is the case that ownership over the space above the ground floor is thus assigned, and when constructions are made by the respective assignees, there is no room to club the ground floor area and the 1st floor area for the purpose of assessment under Kerala Building Tax Act. Alternately, it is contended that W.P.(C)No.138/2005 3 if the authorities are not accepting Exts.P1 and P2 then necessarily there could only be one assessment in the name of the 1st petitioner of the entire extent. In other words, they cannot for the purpose of denying the contention of the petitioners say that Exts.P1 and P2 are not acceptable and at the same time roping the transferee under those documents for the purpose of assessment. The learned Government Pleader appearing on behalf of the State on the other hand would contend that whether the ground floor and the 1st floor should be treated as part of the same building and the total area has to be treated as part of the same building for the purpose of assessment will depend upon facts and circumstances of each case and according to him in this case no transfer of any land even an undivided share of the land is transferred in favour of the other parties, where as, the only the space over the ground floor that too an undivided share is transferred. But even this transfer is not acted upon by producing material evidence in the case, if as a matter of fact, the transferee under Ext.P1 or the donee under Ext.P2 has applied for separate licence and constructed the building using their own funds, the burden is them to produce the licence in their name and also produce the W.P.(C)No.138/2005 4 evidence to show the source from where the funds were spent for the construction and further to show that the buildings are separately numbered by the local authority. No such attempt was made by the petitioners at this stage except through documents Exts.P1 and P2. It was in these circumstances that the authorities were not prepared to accept Exts.P1 and P2 as documents acted upon by the parties. 3. Heard both sides. In so far as Exts.P1 and P2 are not shown to have been acted by producing material evidence and in the absence of anything to show that separate licences were obtained by the transferee/donee under Exts.P1 or P2 for construction of 1st floor from the authority concerned or any evidence regarding the source from which the funds were raised for the construction of the building and considering the close relationship of the parties it can only be taken that Exts.P1 and P2 are not documents shown to have been acted upon. There is no reason to upset the finding of the authorities below. Therefore, the contention that the area of the ground floor and the 1st floor shall not be clubbed together cannot be accepted. But there is force in the contention of the petitioners that once W.P.(C)No.138/2005 5 the authorities have not acted upon Exts.P1 and P2 then there is no reason why and how other parties are made liable for the assessed amount. If Exts.P1 and P2 are ignored and if the building has to be treated as one unit belonging to Smt.Mariyumma necessarily only Mariyumma can be assessed and the assessment made on the other person other than Mariyumma is therefore not proper. Since this contention is raised by the 1st petitioner herself, the assessment will be treated as made in the name of Mariyumma herself, the liability of other petitioners will not arise based on Ext.P3 and the entire liability to pay the due will be fastened on the 1st petitioner. In the result, clarifying the above question, the writ petition is dismissed. In view of the above position a fresh demand notice may be issued to the 1st petitioner for the entire amount covered by Ext.P3 where upon the 1st petitioner shall comply with the same. (P.R.RAMAN, JUDGE) ps