IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 15657 of 2008(L) ---------------------------------------- PETITIONER(S): ------------------------ SMT.M.A.AISHA BEEVI,W/O. T.O.ABDULLA THARAKKANDATHIL, ASOKAPURAM, ALUVA (E) VILLAGE ALUVA. BY ADV. SRI.S.B.PREMACHANDRA PRABHU RESPONDENT(S): ------------------------- 1. THE TAHSILDAR, TALUK OFFICE, ALUVA. 2. THE REVENUE DIVISIONAL OFFICER FORT COCHIN, COCHIN-1 3. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, COLLECTORATE, KAKKANAD, KOCHI-30 R1 TO R3 BY GOVERNMENT PLEADER SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.15657/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PARTITION DEED NO.1578/1993 OF ALUVA S.R.O. IN FAVOUR OF PETITIONER NO.1. P2:- COPY OF THE SALE DEED NO.613/2005 OF ALUVA S.R.O. IN FAVOUR OF PETITINER'S HUSBAND. P3:- COPY OF THE OWNERSHIP CERTIFICATRE ISSUED TO THE PETITIONER BE THE KEEZHMAD GRAMA PANCHAYATH. P4:- COPY OF THE OWNER SHIP CERTIFICATE ISSUED TO THE PETITIONER'S HUSBAND BY THE KEEZHMAD GRAMA PANCHAYATH. P5:- COPY OF THE LAND TAX RECEIPT ISSUED FOR PETITIONER'S PROPERTY. P6:- COPY OF THE LAND TAX RECEIPT ISSUED FO PETITINER'S HUSBAND'S PROPERTY. P7:- COPY OF THE LETTER DTD. 12.9.06 SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT. P8:- COPY OF THE RETURN FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P9:- COPY OF THE RETURN FILED BY THE PETITIONER'S HUSBAND BEFORE THE IST RESPONDENT. P10:- COPY OF THE LETTER DTD. 19.9.06 SUBMITTED BY THE PETITIONER'S HUSBAND TO THE IST RESPONDENT. P11:- COPY OF THE ORDER OF ASSESSMENT DTD. 1.1.07 PASSED BY THE IST RESPONDENT. P12:- COPY OF THE DEMAND NOTICE ISSUED BY THE IST RESPONDENT. P13:- COPY OF THE APPEAL MEMO BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P14:- COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT. P15:- COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P16:- COPY OF THE CERTIFICATE ISSUED BY THE ASST. ENGINEER, KSEB DTD. 24/3/2008 REGARDING BUILDING OF THE PETITIONER. P17:- COPY OF THE CERTIFICATE ISSUED BY THE ASST. ENGINEER, KSEB DTD. 24.3.2008 REGARDING THE BUILDING OF THE PETITIONER'S HUSBAND. P18:- COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT. TRUE COPY P.A. TO JDUGE tss P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 15657 of 2008 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 28th day of September, 2010 JUDGMENT The issue involved in this Writ Petition is, whether two separate godowns stated as constructed by the petitioner and her husband, admittedly situated on the opposite sides of a common pathway are liable to be treated and assessed as a 'single unit' with tax liability under Section 5 of the Kerala Buildings Tax Act. 2. With regard to the facts, it is revealed from the pleadings and proceedings on record that the petitioner obtained some landed property by virtue of Ext. P1 partition deed and she constructed a godown in a portion of the same, with an extent of 578.4 sq. m., which according to the petitioner, was completed in the year,1998. It is also stated in the Writ Petition that another extent of property was conveyed to her husband, by the petitioner, for valid consideration under Ext.P2 Sale Deed on 03.02.2005 and after the said conveyance, the husband constructed a godown having an area of 1117.95 sq.m therein, which is stated as completed in the year 2005. Both these godowns are situated as 'two separate buildings' on the two sides of the common access and are not inter-connected in any manner. In spite of this , the first respondent/assessing authority issued a notice to the petitioner W.P. (C) No. 15657 of 2008 : 2 : instructing to file a return in respect of both the buildings, that too treating the two buildings as a 'single unit'. The petitioner submitted Ext. P7 reply pointing out the actual facts and figures, while the husband submitted another representation as borne by Ext.P10 with regard to the nature of the building, ownership and such other details . The petitioner and her husband filed two separate returns as Exts. P8 and P9. However, without any regard to the same, the assessment was finalised by the first respondent as per Ext. P11 assessment order reckoning the 'plinth area' of both the buildings together as 1797.42 sq.m., treating the same as a 'single unit' and fixing the tax liability at Rs.2,95,200/-, which was ordered to be satisfied by way of 'four' equal monthly installments. 3. After satisfying the first installment, as prescribed, the petitioner preferred Ext.P13 appeal challenging Ext.P11 order on factual and legal grounds. It is the case of the petitioner that, all the relevant documents were produced before the appellate authority including Exts. P1 and P2; the supporting documents such as two different ownership certificates issued by the concerned Grama Panchayat in the name of the petitioner and the husband of the petitioner, as borne by Exts.P3 and P4 and also the land tax receipts produced as Exts. P5 and P6. The second respondent/appellate W.P. (C) No. 15657 of 2008 : 3 : authority simply chose to ignore such materials and dismissed the appeal as per Ext. P14, stating that, the petitioner failed to produce the requisite plan/permit with regard to the construction and that the building was actually constructed by the petitioner herself before the property was transferred to the husband and hence both the buildings were liable to be treated as a 'single unit. Being aggrieved of Ext. P14, the petitioner preferred Ext. P15 revision petition before the third respondent, after satisfying the balance liability to top up the figure to make the same as 50% of the disputed liability, as contemplated under Section 13 of the Act. 4. It is also the case of the petitioner that, the petitioner had produced all the documents before the appellate authority, including Exts.P16 and P17 certificates showing the date of electric connection effected to the two separate go-downs; the first one in the name of the petitioner having been effected on 27.11.1998 and the second one in the name of the husband of the petitioner on 23.09.2005. However, the third respondent only chose to reiterate the stand taken by the appellate authority and the revision petition was dismissed as per Ext. P18. The petitioner is challenging Exts. P11, P14 and P18 in this Writ Petition. 5. Heard the learned Government Pleader as well. 6. The learned Counsel for the petitioner submits that, there is W.P. (C) No. 15657 of 2008 : 4 : absolutely no rhyme or reason for rejecting the claims raised before the concerned authorities for assessing buildings as two separate units.. The learned Counsel also refers to the admitted fact in Ext.P14 order passed by the appellate authority, holding that the properties belonging to the petitioner and her husband are situated on either side of the common pathway and that the said buildings are not connected with each other in any manner. The only reason showing for declining interference is that the petitioner failed to produce the requisite plan and permit, whereas it has been observed by the very same appellate authority in Ext.P14 that the Kerala Municipal Building Rules has not been made applicable to the said Grama Panchayat at the relevant time, i.e. in the year 2005 and as such, there was no requirement for obtaining any plan or permit approved or issued by the local authority before effecting the construction. The learned Counsel refers to the description of the boundaries of the properties as given in Exts. P1 and P2; to show that the two properties are independent from each other and are not connected in any manner and that the respective titles are also different. Further reference is made to the contents of the schedule in Ext.P2, which shows that the property conveyed by the petitioner to the husband was only a 'vacant land' and that no building was included therein. This being the position, the learned Counsel submits that the W.P. (C) No. 15657 of 2008 : 5 : finding and reasoning given by the concerned respondents fixing the liability upon the petitioner in an arbitrary manner is liable to be interfered. 7. The learned Government Pleader appearing for the respondents submits that the factual adjudication made by the assessing authority as well as the appellate/revisional authority is not liable to be interfered by this Court; that the building in question stated as owned by the husband of the petitioner was actually constructed by none other than the petitioner and that the petitioner transferred the property only thereafter in the year 2005. Reliance is also placed on sub section 5 of Section 5, which stipulates that, where there are out- houses, garages or other structures appurtenant to the main building for the convenience of enjoyment of the building, the plinth area of such structure shall be added to the plinth area of the building and the building tax assessed accordingly. Referring to the mandate under the said provision, the learned Government Pleader submits that, the second godown stated as situated in the property owned by the husband of the petitioner is used for convenience of enjoyment of the petitioner's building and as such, both the buildings are liable to be treated as a 'single unit' and are to be assessed accordingly. 8. Going by the materials on record, particularly the report W.P. (C) No. 15657 of 2008 : 6 : submitted by the Village officer and the Tahasildar, as referred to in Ext. P14 passed by the second respondent/appellate authority, the buildings concerned which stands in the name of the petitioner and the husband respectively are two separate godowns having separate building numbers and admittedly situated on the two opposite sides of the pathway in between. There is no case for any of the respondents that these two buildings are interconnected at some or other point, so as to have assessed the same as a single unit. But the question, is whether the property transferred by the petitioner to the husband in the year 2005, by way of Ext. P2 is a result of clandestine deal to avoid the actual liability of tax, seeking to have separate assessment. The fact that the buildings are having different numbers, separate electricity connection situated in two different plots and on the opposite sides of the common pathway, without any interconnection and with separate access from the pathway is not disputed anywhere. The various documents produced from the part of the petitioner are in support of the above factual position. It is also a fact, that there was no need, necessity or occasion for the petitioner to have applied for and obtained the building permits or to have any 'plan' approved from the concerned local authority; for the plain reason that the Kerala Municipal Building Rules were made applicable to all the Panchayaths only recently, by W.P. (C) No. 15657 of 2008 : 7 : virtue of amendment of the Rules. This being the position, the only remaining question is whether the godown having separate number and standing in the name of the husband of the petitioner could be classified as an 'appurtenant structure' (as contemplated under sub Section 5 of Section 5) for more convenient enjoyment of the other godown standing in the name of the petitioner. 9. The word 'appurtenant' used in the above provision is of much importance and this Court had an occasion to consider the scope and meaning of the said word in Subashchandrababu Vs. State of Kerala [2006 (2) KLT 189]. Going by the dictum therein and also the circumstances envisaged under the above provision clearly reveal that the so called 'appurtenant' construction is under the main building or in other words, it is not as an independent building, but to sub serve the purpose with regard to the user of the main building. There is no case for the respondents that the godown standing in the name of the husband of the petitioner cannot be put to independent use. The very fact that the building concerned is a godown and is having separate electric connection with separate building number and separate access, situated on the opposite side of the pathway shows that the said building is independent of the other and that the pathway can be used separately without subserving the main user of the other building. In W.P. (C) No. 15657 of 2008 : 8 : the said circumstances, both the godowns are liable to be treated as separately, irrespective of the fact that, whether the concerned property was conveyed by the petitioner to the husband after constructing the above godown or not. Since the grievance of the petitioner is with regard to the assessment treating the two godowns as a 'single unit' at the hands of the petitioner, the factum of conveyance of the property or as to the alleged applicability of the 'explanation 2' to Section 2 (e) of the Kerala Building Tax Act as referred to by the concerned authority in the impugned order is of no consequence or significance. This Court declares that the course pursued by the assessing authority/ appellate authority / revisional authority in finalizing the proceedings as borne by Exts. P11, P14 and P18 are not correct or sustainable. 10. In the above circumstances, Exts. P11, P14 and P18 are set aside. The first respondent is directed to consider the matter afresh and finalize the proceedings as above, after giving an opportunity of hearing and to produce all the relevant records in this regard, which exercise shall be finalized within two months form the date of receipt of a copy of this judgment. The Writ Petition is allowed. No cost. P. R. RAMACHANDRA MENON, JUDGE kmd