IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 30633 of 2007(V) -------------------------- PETITIONER(S): --------------------- 1. V. LAKSHMI, D/O. V.RADHA, AGED 37 YEARS, GROUND FLOOR, PADMASREE PARTMENTS, NETTIPADAM ROAD, ERNAKULAM, KOCHI-16. 2. V. GIRIJA, D/O. V.RADHA, AGED 47 YEARS, 1ST FLOOR, PADMASREE PARTMENTS, NETTIPADAM ROAD, ERNAKULAM, KOCHI-16. 3. V. MEENA, D/O. V.RADHA, AGED 54 YEARS, 2ND FLOOR, PADMASREE PARTMENTS, NETTIPADAM ROAD, ERNAKULAM, KOCHI-16. BY ADV. SRI.B.JAYASANKAR RESPONDENT(S): ------------------------ 1. TAHSILDAR (ASSESSING AUTHORITY UNDER THE KERALA BUILDING TAX ACT), KANAYANNUR, KANAYANNUR TALUK OFFICE,OLD COLLECTORATE BUILDINGS PARK AVENUE, KOCHI. 2. REVENUE DIVISIONAL OFFICER (APPELLATE AUTHORITY UNDER THE KERALA BUILDING TAX ACT), OFFICE OF THE RDO, FORTKOCHI. 3. DISTRICT COLLECTOR (REVISIONAL AUTHORITY UNDER THE KERALA BUILDING TAX ACT), CIVIL STATION BUILDINGS, KAKKANAD. 4. VILLAGE OFFICER, ERNAKULAM VILLAGE, OLD COLLECTORATE BUILDINGS, PARK AVENUE, KOCHI. GOVERNMENT PLEADER SRI. BEJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC. 30633/2007. APPENDIX PETITIONER'S EXTS: EXT. P1 : A TRUE COPY OF THE DOC. NO.1189/03 DATED 10.3.2003 IN ERNAKULAM, SRO EXECUTED BY THE PETITIONERS AND THEIR MOTHER. EXT. P2 : A TRUE COPY OF THE BUILDING PERMIT NO.MOP 2-82-03 DATED 11.4.03 ISSUED BY THE CORPORATION OF COCHIN IN THE JOINT NAMES OF THE PETITIONERS. EXT. P3 : A TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 01.02.05 ISSUED BY THE CORPORIATION OF COCHIN IN THE JOINT NAMES OF THE PETITIONERS. EXT. P4 : A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE 1ST PETITIONER IN ANSWER TO THE SECTION 9 NOTICE. EXT. P5 : A TRUE COPY OF THE PROCEEDING NO.B3-10836/05 DATED 1.12.2006 PASSED BY THE 1ST RESPONDENT. EXT. P6 : A TRUE COPYOF THE NOTICE OF DEMAND NO. B3-10836/05 DATED 1.12.06 SERVED ON THE PETITIONERS. EXT. P7 : A TRUE COPY OF THE MEMORANDUM OF APPEAL BEARING NO.G- 80 OF 2007 FILED BY THE PETITIONERS UNDER SECTION 11 OF THE KERALA BUILDING TAX ACT BEFORE THE 2ND RESPONDENT. EXT. P8 : A TRUE COPY OF THE RECEIPT NO.4431591 DATED 29.12.06 ISSUED BY THE 4TH RESPONDENT. EXT. P9 : A TRUE COPY OF THE PROCEEDINGS NO.G-80/07-K-DIS 02.03.2007 PASSED BY THE 2ND RESPONDENT. EXT. P10 : A TRUE COPY OF THE MEMORANDUM OF REVISION FILED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT. EXT. P11 : A TRUE COPY OF THE RECEIPT NO.3392575 20/4/2007 ISSUED BY THE 4TH RESPONDENT. EXT. P12 : A TRUE COPY OF THE PROCEEDINGS NO.B10-26417/07/KDIS DATED 2/8/2007 OF THE 3RD RESPONDENT. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 30633 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2008 JUDGMENT Petitioners are the daughters of one one Smt. V. Radha. The case of the petitioners is as follows: Smt.Radha was the owner of nearly eight cents of land. By Ext.P1she entered into an agreement with the petitioners. As per Ext.P1 the petitioners would put up a three storied building on the land. Each floor was to be constructed by the petitioners separately with their own funds. According to the petitioners, they are entitled to have separate assessment under the Building Tax Act treating each floor as a separate building. Accordingly they filed separate returns for the assessment of the building separately. However, by Ext.P5, the Tahsildar proceeded to reject the contention and assessed to tax treating the entire building as one unit. Aggrieved by the same, petitioners filed an appeal, which came to be rejected. Revision filed before the District Collector also proved unsuccessful. Accordingly, the petitioners challenge the orders passed by the authorities. 2. I heard learned counsel for the petitioners and the learned Government Pleader. WPC.30633/2007. 2 3. Learned counsel for the petitioners points out that the assessment of the building as a single unit is patently illegal and the ingredients of explanation 2 to Section 2(e) have been satisfied by the petitioners. He further points out that the only reason stated in the orders is that the petitioners did not have a salable interest in the land. He submits that the possession or interest in the land is irrelevant when the question is whether the buildings are to be separately assessed under the Building Tax Act. What is required is separate ownership, he contends. He would contend that petitioners have produced documents to show that the funds for the construction came separately from the petitioners and all the other ingredients were also satisfied and the only reason stated as evident from the order passed by the final authority, namely, the Collector, is totally unsustainable. 4. I heard learned Government Pleader also. 5. In Ext.P12 order the revisional authority stated inter alia as follows: “On verification of the assessment file, it is seen that the building permit and occupancy certificate are issued in the name of the petitioners, and their mother together. The petitioners/assessees have not produced any document showing their independent undivided right in the WPC.30633/2007. 3 land in which the building is constructed. Therefore, it may be observed that the petitioners failed to produce any concrete evidence to prove their claim for separate assessment as per sec.2(e) explanation 2 of KBT Act '75.” According to the learned counsel for the petitioners, it is only because the petitioners' mother is the owner of the land and in the building permit and in the occupancy certificate the petitioners' mother's name is also shown. The further reason is that they are not having independent undivided right in the land. As far as the said contention is concerned, it is totally without merit. The fact that the petitioners are not having independent undivided right in the land cannot conclude the question whether the petitioners are entitled to be assessed separately. The law permits one person being the owner of the land and another person being the owner of the building, which may be put up on it. The building may be put up on the basis of the permission or licence, which the owner, either as written document or orally, grants to the licencee. I should also remind myself that Ext.P1 appears to be in the nature of a family arrangement between members of the family and any technicality in the matter of stamp duty etc., also should not be permitted to stand in the way of giving full effect to the terms of Ext.P1. I would think that the Collector should consider the question with reference WPC.30633/2007. 4 to the issue about the figuring of the name of the mother in the permit and occupancy certificate in the context of Ext.P1. There are recitals in Ext.P1 which tend to show that the petitioners were permitted to put up the construction and to enjoy them virtually as owners. Accordingly Ext.P12 is quashed. The third respondent will consider the question after considering the terms of Ext.P1 and take a final decision in accordance with law with notice to the petitioners within a period of two months from the date of receipt of a copy of this judgment. If after re-doing the matter the Collector finds favour with the contention of the petitioners, any amount collected by the respondents in excess of what the petitioners are liable to pay shall be refunded within a maximum period of two months from the date of the decision. The third respondent will consider whether the ingredients of explanation 2 to Section 2(e) have been satisfied. (K.M. JOSEPH, JUDGE) sb