IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WP(C).No. 24242 of 2009(A) -------------------------- PETITIONER: ------------------ MR.ABDUL AZEEZ, AGED 51 YEARS, S/O.LATE AHMED KOYA, RESIDING AT 6C BELAIR APARTMENTS, PANAMPILLY NAGAR, COCHIN- 682036. BY ADV. SRI.SREELAL N.WARRIER SRI.B.RAGHUNANDANAN SRI.ARUN PRAKASH RESPONDENTS: ---------------------- 1. TAHSILDAR AND ASSESSING AUTHORITY (UNDER THE KERALA BUILDING TAX ACT), KANNUR. 2. VILLAGE OFFICER, KANNUR-II VILLAGE, KANNUR DISTRICT. BY GOVERNMENT PLEADER SRI. MATHEW VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24242 of 2009(A) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF BUILDING PERMIT FOR RESIDENTIAL FLATS ISSUED BY THE KANNUR MUNICIPALITY (EFFECTIVE PERIOD FROM 30.3.2006 TO 29.3.2009) P2 : COPY OF SALE DEED IN RESPECT OF UNDIVIDED SHARE IN PROJECT AND IN FAVOUR OF APARTMENT OWNER. P3 : COPY OF ENCUMBRANCE CERTIFICATE NOS.4371/09, 4375/09,4431/09 AND 4432/09 IN RESPECT OF THE PROJECT PROPERTIES FOR THE PERIOD FROM 1.1.2007 TO 10.8.2009 ISSUED BY SRO, KANNUR. P4 : COPY OF OCCUPANCY CERTIFICATE. P5 : COPY OF RECEIPTS (80 NOS) FOR 1ST PROPERTY TAX PAID IN RESPECT OF INDIVIDUAL APARTMENTS. P6 : COPY OF 82 NOS OF OWNERSHIP CERTIFICATES ISSUED BY THE KANNUR MUNICIPAL COUNCIL TO INDIVIDUAL OWNERS IN RESPECT OF APARTMENTS. P7 : COPY OF LIST SHOWING DETAILS OF APARTMENT OWNERS, ETENT, ETC. INRESPECT OF THE INDIVIDUAL APARTMENT UNITS. P8 : NOTICE ISSUED BY THE 1ST RESPONDENT UNDER SECTION 9(2) OF THE KERALA BUILDING TAX ACT. P9 : COPY OF ASSESSMENT ORDER UNDER SECTION 9 OF THE KERALA BUILDING TAX ACT (1+1 READABLE AND TYPED COPY) RESPONDENTS' EXHIBITS: N I L // TRUE COPY // P.A. TO JUDGE. app/- C.K.ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P(C) No.24242 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of September, 2009 J U D G M E N T 1. Petitioner is aggrieved by Ext.P9 order of assessment issued under the provisions of the Kerala Building Tax Act, 1975. Petitioner is the builder and promoter of a multi storied residential apartment complex. Contention of the petitioner is that the apartment complex contain 80 independent residential flats which are owned by distinct allottees who had been transferred with undivided share in the land and the cost of construction was met by each such allottees pursuant to specific agreement executed with the builder. It is the contention of the petitioner that in view of the settled legal precedents of this court in M/s.Bawasons Construction Company Vs. Thahsildar [2007(2) KHC 409] and in Provincial Superior, Franciscan Clarist congregation of nuns Vs. State of Kerala [2009(1) KHC 611], if distinct apartment contain in residential complex is owned by difference persons and if W.P(C) No.24242 of 2009 2 the cost of construction of such apartment was met by each such owners, then the building will fall within the definition of Section 2(e) Explanation - II of the Act, and the same need be assessed separately against each such individuals owners. It is the complaint of the petitioner that the assessment order is issued without taking note of any such contention. 2. It is noticed that, before finalising the assessment, the first respondent had issued Ext.P8 notice to the petitioner calling for production of documents if any, available. It is submitted by the petitioner that all relevant documents pertaining to transfer of undivided share in the land, agreements executed between individual allottees and the builder, evidence regarding expenses of construction met by each such allottees etc; were produced before the first respondent. It is contended that the first respondent without accepting those documents and without adverting to the contentions had unilaterally issued Ext.P9 order of W.P(C) No.24242 of 2009 3 assessment, treating the entire plinth area of the building as a single unit. But at the same time the assessment order is issued to the petitioner and 79 others, whose names are not mentioned therein. 3. On a perusal of Ext.P9, it is noticed that it is a cryptic order passed in a printed form. Ext.P9 will not reflect any application of mind of the assessing authority. It is not evident as to whether any of the contentions raised by the petitioner has been adverted to by the assessing authority vested with powers for assessment under a physical statute is exercising a quasi-judicial function, and such authorities are expected to pass speaking orders which will reflect application of mind and advertence to the objections of the assessee. Ext.P9 cannot be characterized as an order which is passed after application of mind on adverting to the contentions raised by the assessee, or after perusing any of the documents proceeds in support of such contentions. Hence Ext.P9 is prima facie unsustainable in W.P(C) No.24242 of 2009 4 the eye of law. 4. Accordingly writ petition is disposed of quashing Ext.P9. The first respondent is directed to pass fresh orders after affording an opportunity to the petitioner and the owners of the individual apartments, to produce necessary documents and also an opportunity or personal hearing. The fresh assessment may be finalised as early as possible at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM JUDGE app/-