IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 16TH AUGUST 2007 / 25TH SRAVANA 1929 OP.No. 36483 of 2001(R) ----------------------- PETITIONER: ------------ DR.T.F.VARGHESE, THOPPIL HOUSE, MANALUR P.O., TRICHUR DISTRICT. BY ADV. SRI.SABU GEORGE RESPONDENTS: ------------- 1) THE TAHASILDAR, KANAYANNUR TALUK, ERNAKULAM. 2) REVENUE DIVISIONAL OFFICER, FORT KOCHI. ADDL. 3) MRS.MARYKUTTY JOSEPH, ALUMPARAMBIL, KOTTAYAM - 686 002. ADDL. 4) MR.JOSEPH MATHEW, MANAGING DIRECTOR, HOTEL LAKEVIEW, WEST LAKE ROAD, OOTY - 643 004. ADDL. 5) MRS.RAJAMMA THOMAS, KIZHAKKETHOTTAM, KURISUMMOODU, CHANGANACHERRY. NOW RESIDING AT C/O.THOMAS KURIAN, D.I.G. (SECURITY) KAHILIPARA, GAUHATI, ASSAM. ADDL. 6) MR.A.V.GEORGE, ADVOCATE, ANJILITHARAYIL, COLLECTORATE P.O., KOTTAYAM -2. ADDL. 7) MR.K.V.KURIEN, KANNAMPUZHA, D-4, SEA VIEW FLATS, BROADWAY, KOCHI - 682 031. NOW RESIDING AT AMERICAN BUREAU OF SHIPPING, P.O.BOX 24860, DUBAI, U.A.E. ADDL.8) MR.GEORGE KALLINGAL, 16-B, MADAN DUTT LANE, CALCUTTA, NOW RESIDING AT SHANTI NIKET, FLAT NO.D-301, 32/4, SAHITYA PARISHAD STREET, CALCUTTA - 700 006. ADDL.9) DR.K.T.J.RAJAN, KARIKKASSERRY HOUSE, MALIPPURAM, COCHIN - 682 511. NOW RESIDING AT NO.10, TOUCAN WAY, KINGSWOOD, SS-165-ER, ESSEX, U.K. ADDL.10) MR.JOSEPH REYNOLDS, D-5, SEAVIEW FLATS, BROADWAY, COCHIN -682 031. NOW WORKING AS COMMERCIAL OFFICER, BRITISH EMBASSY, P.O.BOX - 65, DUBAI, U.A.E. ADDL.11) MRS.GEORGE REYNOLDS, E-5, SEA VIEW FLATS, BROADWAY, COCHIN - 682 031. ADDL.12) MR.JOSE PHILIP, ALUPARAMPIL, D-6, SEA VIEW FLATS, BROADWAY, KOCHI - 682 031. ADDL. 13) MRS.RENU PHILIP, ALUMPARAMPIL, D-6, SEA VIEW FLATS, BROADWAY, KOCHI-682 031. (ADDITIONAL RESPONDENTS R3 TO 13 ARE IMPLEADED AS PER ORDER DT.13/12/01 IN CMP 60981/01.) BY ADV. SRI.SAIGI JACOB PALATTY SRI.FIROZ K.ROBIN SRI.J.JULIAN XAVIER SRI.JOSEPH ABRAHAM SRI.V.B.PREMACHANDRAN GOVT. PLEADER, SRI.MATHEW JOSEPH VADAKKEL THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/08/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.36483/2001 ORDER ON C.M.P. NO.59683/2001 IN OP NO.36483/2001 DISMISSED. SD/- 16/8/2007. T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE LICENSE ISSUED BY THE CORPORATION OF COCHIN DATED 01.03.1991. EXT. P2: COPY OF THE LICENSE ISSUED BY THE CORPORATION OF COCHIN DATED 03.01.1994. EXT. P3: COPY OF A SPECIMEN AGREEMENT ENTERED WITH ALL THE BUYERS DATED 08-08-1991. EXT. P4: COPY OF A SPECIMEN SUPPLEMENTARY AGREEMENT DATED 19.12.1993. EXT. P5: COPY OF A SPECIMEN SALE DEED DATED 18.04.1994. EXT. P6: COPY OF THE ORDER ALONG WITH DEMAND NOTICE DATED 19.11.1999. EXT. P7: COPY OF APPEAL DATED 21.12.1999. EXT. P8: COPY OF THE PROCEEDINGS OF THE ASSISTANT COLLECTOR FORT COCHIN DATED 28.04.2000. EXT. P9: COPY OF THE JUDGMENT DATED 30.03.1996 IN THE COURT OF THE II ADDITIONAL SUB JUDGE, ERNAKULAM. /TRUE COPY/ P.A. TO JUDGE JP T.R.RAMACHANDRAN NAIR, J. = = = = = = = = = = = = = = = = O.P.No. 36483 of 2001-R. = = = = = = = = = = = = = = = = Dated this the 16th day of August, 2007. J U D G M E N T This writ petition is filed challenging Exts.P6 and P8 orders of assessment which are confirmed in appeal by the appellate authority. The case of the petitioner is that he was the owner of 27.33 cents of land comprised in Survey No.464/2 of Ernakulam Village. He was also a partner in M/s.Housing Development Association a registered firm formed with the object of developing and constructing flats therein. Exts.P1 and P2 are the necessary licenses issued. The assessment in question is in respect of the flats thus constructed. Ext.P6 shows that the entire liability is cast on the petitioners herein and Ext.P7 is the appeal filed by him before the R.D.O. The case pleaded therein is that 11 flats were constructed on behalf of 11 persons including the assessees and the cost for the construction of these residential buildings were met by all those 11 persons jointly. It is further submitted that all the other 10 persons except the assessee had executed separate agreements with M/s.HDA for the construction of their respective flats. Their names are mentioned in the appeal memorandum. Therefore, the case of the petitioner is that going by Explanation 2 of Section 2(e) of the O.P.No. 36483 of 2001-R. 2 Kerala Building Tax Act, each flat shall be deemed to be a separate building. 2. The order Ext.P8 of the appellate authority would show that the appellate authority did not issue notice to other 10 persons whose details were given in the appeal memorandum. What was done is only to call for the remarks on the appeal and the connected records from the Tahsildar. The appellate authority there after dismissed the appeal. In the light of the definition in Section 2(e) and Explanation 2 thereof it is clear that in a case where Explanation 2 is attracted, 'each flat shall be deemed to be a separate building'. This legal position is well settled by the decisions of this Court reported in Balu v. State of Kerala (1994(2) KLT 42) and in Lissy v. Tahsildar (2000(3) KLT 479). In 2000(3) KLT 479, after referring to the definition clause and Explanation it was held in para.15 in the following terms: “Apart from the explanation which is intended to help the co-owners who are constructing flats and apartments jointly, if a separate definite portion of the building is owned separately by a person and can be used separately it can be assessed separately.” In a recent decision reported in Bavasons Constructions (P) Ltd. v. State of Kerala (2007(3) KLT 101) also the said legal position has been explained and further the procedure to be followed has also been specified, which is extracted below: O.P.No. 36483 of 2001-R. 3 “The petitioners-builders shall produce materials before the concerned Tahsildars regarding the allotment of individual flats to the respective owners. They shall also produce the agreements entered into with the owners of flats and also evidence to show that the payments were made by the allottees from time to time to foot the bills for the construction. They shall produce their books of accounts and bank statements. They shall also produce the deeds, assigning the undivided interest in the property. They shall produce those materials before the concerned Tahsildars before 3-4-2007. If those materials are produced to show that the construction of the flats is covered by Explanation 2 to S.2(3) of the Building Tax Act, then, the assessments shall be made separately. The assessing authorities shall consider the claim relating to each flat and render a separate speaking decision with reference to each flat. A common order can be passed for each residential complex. But, in that order, there should be separate finding regarding each flat/apartment. In case any flat is remaining unallotted, the assessment in respect of such flat shall be made, treating the builder as the owner. In case, in relation to a particular flat, sufficient materials are not produced to support the claim for the benefit of Explanation 2 to S.2(e), then also, the assessment shall be made, treating the building as the owner of the apartment. While making separate assessments of the flats, the common area shall also be divided on pro rata basis, so that the entire built up area of the building is assessed to building tax. The petitioners shall also furnish the correct addresses, as far as possible, of the allottees of the flats, to the assessing authorities. The assessing authorities shall afford an opportunity of being heard to the petitioners-builders and the individual flat owners and pass final orders in the matter, as far as possible, before 3.07.2007. They shall, as stated earlier, deal with the assessment relating to every flat/apartment separately, with reference to the documents produced. In this context, it is apposite to remind the assessing authorities, the powers conferred on them under S.17 of the Act. The said section reads as follows: “Power to take evidence on oath etc:- The assessing authority, the appellate authority and the revisional authority O.P.No. 36483 of 2001-R. 4 shall, for the purpose of this Act, have the same power as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), when trying a suit, in respect of the following matters, namely:- a) enforcing the attendance of any person and examining him on oath or affirmation' b) compelling the production of documents; c) issuing commissions.” 3. In the light of the above legal position the orders of assessment and the appellate order herein are liable to be quashed. The assessing authority will have to issue notice to 11 persons, including the petitioner, who are additional respondents 3 to 13 therein. In the light of the binding decisions of this Court and Explanation 2 to Section 2(e) if there are evidence to show that the cost of construction were met by such persons jointly and other factors to attract the provisions are established then each will have to be deemed to be a separate building. The learned counsel for the additional respondents pointed out that in such a case they are entitled for exemption also for a certain plinth area. All such grievances are matters to be agitated before the appellate authority. Therefore, the appellate authority is hereby directed to hear all the 11 persons who are respondents 3 to 13 including the petitioner after issue of notice to them. Fresh opportunity will be given to all of them to adduce evidence in the matter including any evidence regarding O.P.No. 36483 of 2001-R. 5 the cost of construction and other relevant aspects. Final orders thereafter shall be passed within a period of five months from the date of receipt of a copy of this judgment. The payments already made by the petitioner will be taken note of by the appellate authority while passing orders. Depending upon the final orders the amount paid by the petitioner as first instalment based on the assessment order will be adjusted and if any excess amount had been collected that may also be refunded to him. The writ petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. Kvs/-