IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 6476 of 2011(H) ------------------------- PETITIONER(S): ---------------------- 1. M/S.HEERA CONSTRUCTION COMPANY P.LTD. A PRIVATE LIMITED COMPANY REGISTERED UNDER THE COMPANIES ACT 1956, HAVING ITS OFFICE AT HEERA PARK, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM, REP. BY ITS MANAGING DIRECTOR, MR.ABDUL RASHEED BABU ALIAS DR.A.R. BABU, AGED 57 YEARS, S/O.LATE ALIYARU KUNJU, RESIDING AT CITADEL, GOLF LINKS ROAD, KOWDIAR, THIRUVANANTHAPURAM. 2. M.CHACKO JOSEPH, S/O.LATE M.K.CHACKO, AGED 75 YEARS, RESIDING AT MANIMALA HOUSE, NEZHOOR P.O., KOTTAYAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.ABDUL RASHEED BABU ALIAS DR.A.R.BABU, RESIDING AT -DO- BY ADVS. SRI.V.AJAKUMAR SRI.T.M.CHANDRAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECETARY, REVENUE DEPARTMENT, SECRETARIATE,THIRUVANANTHAPURAM 2. THE TAHSILDAR, TALUK OFFICE, KOTTAYAM PIN 686001 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 6476 of 2011 ------------------------------- Dated this the 27th day of May, 2011. J U D G M E N T Challenge in this writ petition is against assessment completed under the Kerala Building Tax Act, 1975. Averments in the writ petition is that, the petitioner is a construction company entered into an agreement for development of a land extending to 76 cents situated in Perumbayikkad Village in Kottayam Taluk, for the purpose of constructing a multistoried residential apartment complex. Construction of the apartments were done for and on behalf of various individuals who were intending purchasers of each apartments, by entering upon specific agreements with each of them. The cost of construction of each apartments was met by such individual owners. On completion of construction, sale deeds were also executed in favour of each of them transferring the undivided share in the land as well as transferring title of the apartments in question. Since the construction in question was made jointly by 2 W.P.(C).No. 6476 of 2011 expending cost of the construction by each individual owners, the assessment ought to have been completed treating each such apartment as separate building, coming within the purview of Explanation 2 to Section 2(e) of the Act, is the contention. 2. According to the petitioner, the details regarding all the owners of individual apartments were submitted to the 2nd respondent. But a unilateral decision was taken without issuing notice to any of them while completing the assessment, treating the entire complex as a single unit and making the petitioner liable for payment of the entire tax amount. Contention of the petitioner is that inspite of such details furnished, the assessment was finalised without taking note of the request for separate assessment. It is further contended that Ext.P6 order of assessment was issued in a cryptic manner in a printed form, without considering any such objections. 3. While considering the dispute regarding assessment of Building Tax with respect to multi-storied complexes 3 W.P.(C).No. 6476 of 2011 containing different apartment units, this Court in Bavasons Constructions (P) Ltd. Vs. State of Kerala (2007(3) KLT 101) observed that, the process of assessment is a quasi judicial function and the assessing authority is guided only by the provisions of the Act and such function should be discharged uninfluenced by any executive orders issued by the Government. It was observed therein that, the authority should consider the claims relating to each of the flats and shall consider whether there is sufficient materials available to support the claim for separate assessments as contemplated under explanation 2 to Section 2(e). The parameters upon which such assessment need be completed were elaborated in the said decision. Learned counsel also brought to my notice about a circular issued by the State Government directing the Commissioner, Land Revenue to instruct all the assessing authorities to make assessment of the apartments (flats) owned by different persons contained in multistoried complex, separately by treating each such apartment as 4 W.P.(C).No. 6476 of 2011 individual building, coming within the purview of the Explanation 2 to Section 2(e). 4. Learned Government Pleader submitted that the petitioner had got an effective remedy by way of appeal and hence this writ petition is not maintainable. From the facts and circumstances as narrated above, it is evident that the 2nd respondent had failed in complying with the procedure contemplated and also failed in considering claim raised for separate assessment. No attempt was seen made to issue notice to the individual owners or to take note of any of the documents regarding title of the apartments or records pertaining to assessment by local authority or proof regarding meeting of the cost of construction. Hence, I am of the view that the matter needs reconsideration by the assessing authority. 5. In the result, the writ petition is allowed and Ext.P6 assessment and Ext.P7 consequential demand are hereby quashed. The 2nd respondent is directed to issue notices to all the individual owners of apartments and to the 5 W.P.(C).No. 6476 of 2011 petitioner, and to pass fresh assessment, after examining the question regarding the claim under Explanation 2 to Section 2(e), based on documents and materials to be produced by such persons. Needless to say that the parameters prescribed by this Court in the decisions cited above shall be considered while finalising the assessment. 6. Fresh orders of assessment in this regard shall be issued, as early as possible, at any rate within a period of 3 months from the date of receipt of a copy of this judgment. 7. Amount of tax if any paid, shall be appropriated in accordance with outcome of the fresh assessment to be made. C.K.ABDUL REHIM, Judge ami/