IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 OP.No. 21752 of 2001(M) ---------------------------------- PETITIONER: ------------------- MANI CHACKO, MANIMALA HOUSE, ELAMKULAM, KOORALI.P.O., KOTTAYAM. BY ADV. SRI.MATHEW JOHN, ADV. SRI.BABY THOMAS. RESPONDENTS: ------------------------ 1. THE TAHSILDAR, KOTTAYAM, (ASSESSING AUTHORITY UNDER THE KERALA BUILDING TAX ACT, 1975). 2. VILLAGE OFFICER, VIJAYAPURAM VILLAGE OFFICE, KOTTAYAM DT. *ADDL. RESPONDENTS 3 TO 20 IMPLEADED: 3. P.K. JOSE, VIKAS, H.P.CO., KOTTAYAM. 4. MINNIE.T.U., NO.20, SATHYA NAGAR, “BELL MOUNT”, PONDICHERRY EAST. 5. DR. GEORGE PANACKAL, PANACKAL HOUSE, PALA. 6. MRS. LEELAMMA MATHEW, THUNDIYIL HOUSE, KOTTAYAM. 7. BENNY JOSEPH, NERIYAMPARAMBIL HOUSE, THURUTHY.P.O., KOTTAYAM. O.P. NO. 21752-2001-M: 8. ASHA MANI, MANIMALA HOUSE, ELAMKULAM, KOORALI.P.O., KOTTAYAM. 9. K.U. CHERIYAN, VALANJAR HOUSE, KOTTAYAM. 10. BIJU VARGHESE, KUNNAMPUZHA HOUSE, KANGAZHA.P.O., KOTTAYAM. 11. K.T. NINAN, KARUKAPPADIYIL HOUSE, PUTHUPPALLY.P.O., KOTTAYAM. 12. ANILA VARGHESE, KARUKAPADIYIL HOUSE, KOTTAYAM. 13. NISHA MANI, MANIMALA HOUSE, ELAMKULAM.P.O., KOTTAYAM. 14. DR. SONY JACOB, ARAPPURAYIL HOUSE, PUTHANANGADI.P.O., KOTTAYAM. 15. BENNY JOSEPH, NERIYAMPARAMBIL HOUSE, THURUTHY.P.O., KOTTAYAM. 16. A. JACOB.JOHN, AMBAKKUZHI, KILIROOR.P.O., KOTTAYAM. 17. ALEYAMMA SAMUEL, SARC VILLA, CHENGANNUR. 18. ELIZABETH IDICULLA MATHEW, THUNDATHILETHU HOUSE, ANGADIKKAL SOUTH.P.O., CHENGANNUR. 19. ALEYAMMA ABRAHAM, PREMJYOTHY NO.2/28, KALYAN, BOMBAY. 20. JACOB ABRAHAM, NAMBOOLIL HOUSE, KOLLAD.P.O., KOTTAYAM. *ADDL.RESPONDENTS 3 TO 20 ARE IMPLEADED AS PER ORDER DATED 26/07/2001 IN C.M.P. NO. 35981/2001. BY GOVERNMENT PLEADER SMT. T.B. REMANI, ADV. SRI.R.RAMADAS. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 21752/2001-M: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE LIST OF NAMES OF THE APARTMENT OWNERS. EXT.P.2: COPY OF THE AGREEMENT DTD. 06/06/1996. EXT.P.3: COPY OF THE SALE DEED DTD. 24/12/1997. EXT.P.4: COPY OF THE NOTICE DTD. 09/02/2001. EXT.P.5: COPY OF THE REPLY DTD. 16/02/2001. EXT.P.6: COPY OF THE ASSESSMENT ORDER DTD. 14/02/2001. EXT.P.7: COPY OF THE DEMAND NOTICE DTD. 14/02/2001. EXT.P.8: COPY OF THE NOTICE DTD. 13/06/2001. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.21752 of 2001-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of March, 2008. JUDGMENT The petitioner seeks to challenge the assessment orders passed by the Tahsildar under the Kerala Building Tax Act, viz. Exts.P4, P6, P7 and P8. The same is challenged on various grounds. The petitioner is a builder who undertook construction for 18 persons whose names are referred to in Ext.P1. It is submitted that there were separate agreements with all the individual allottees and the cost of construction was met by them. Ext.P2 is one such agreement relied on by the petitioner. 2. Some of the additional respondents have entered appearance here and some of them are yet to be served also. But, in the light of the order I propose to pass, the Original Petition need not be kept pending for service of notice to the other respondents. The issue has to be considered in the light of Explanation 2 to Section 2 (e) of the Kerala Building Tax Act, 1975. The said explanation is extracted below: “Where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building.” OP 21752/2001 -2- Interpreting the same, this court in Bavasons Constructions (P) Ltd. v. State of Kerala (2007 (3) KLT 101) has laid down various guidelines as to how the assessing authority has to approach the question before finalising the assessment. The relevant findings in the said judgment are extracted below: “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 builder as the owner of the apartment. While making separate assessments of the flats, the common areas 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 30.7.2007. They shall, as stated earlier, deal with the assessment relating to every flat/apartment separately, with reference to the documents produced.” None of the above aspects are seen examined here. Further, the respective allottees have not been issued notices also in the matter. 3. Therefore, I quash Exts. P6, P7 and P8. The first respondent will pass fresh orders after hearing all the allottees of respective flats. All the OP 21752/2001 -3- persons concerned have to be given appropriate opportunity to file objections and to produce evidence in support of their objections. The petitioner also will be allowed to adduce further evidence, if any, in the matter. The original petition is allowed as above. (T.R. Ramachandran Nair, Judge.) kav/ OP 21752/2001 -4- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.21752 of 2001-M - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 6th March, 2008.