IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 OP.No. 15456 of 1999(M) ----------------------- PETITIONER: ------------------ SAKUNTHALA BAI. A., 42/2050D, TATAPURAM SUKUMARAN ROAD, KOCHI 682 018. BY ADV. SRI.E.K.NANDAKUMAR RESPONDENTS: ---------------------- 1. TAHSILDAR, KANAYANNUR TALUK OFFICE, ERNAKULAM. 2. DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU. 3. STATE OF KERALA, REPRESENTED BYL ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.25083/99 IN OP.NO.15456/1999 ------------ DISMISSED 29/8/2008 Sd/- P.R.RAMAN, JUDGE. APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE RETURNS FILED BEFORE THE IST RESPONDENT DTD. NIL (FOR THE DATE OF COMPLETION OF THE BUILDING 20/4/94.) EXT.P2 TRUE COPY OF THE RETURNS FILED BE3FORE THE IST RESPONDENT DTD.NIL (FOR THE COMPLETION OF BUILDING 3/10/96) EXT.P3 TRUE COPY OF THE PETITIONER'S LETTER DTD. 9/2/98KL FILED BEFORE THE IST RESPONDENT. EXT.P4 TRUE COPY OF HE ASSESSMENT ORDER ISSUED BY THE IST RESPONDENT DATED 25/3/98 AND ENGLISH TRANSLATION. EXT.P5 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE IST RESPONDENT DTD. 25/3/98 AND ENGLISH TRANSLATION. EXT.P6 TRUE COPY OIF THE APPEAL FILED BEFORE THE REVENUE DIVISIONAL OFFICER BY THE PETITONER DTD. 19/5/98. EXT.P7 TRUE COPY OF THE APPELLATE ORDER ISSUED BY THE REVENUE DIVISIOAL OFFICER DTD. 28/9/98. EXT.P8 TRUE COPY OF THE GOVT.ORDER REFERRED TO BY THE APPELLATE AUTHORITY ISSUED TO THE PETITIONER DTD.3/1/96. EXT.P9 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 26/10/98. EXT.P10TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT ON EXT.P8 TO THE PETITIONER DTD. 29/5/99. EXT.P11 TRUE COPY OF THE COMPLETION CERTIFICATE OBTAINED BY THE PETITONER FOR COMPLETION OF THE GROUND FLOOR DTD. 2/5/94. EXT.P12TRUE COPY OF THE COMPLETION CERTIFICATE OBTAINED BY THE PETITIONER FOR COMPLETION OF THE FIRST FLOOR DTD. 11/10/96. P.R.RAMAN, J. --------------------------- O.P.NO.15456 OF 1999 ---------------------------- DATED THIS THE 29TH DAY OF AUGUST,2008 JUDGMENT Petitioner is the owner of a building consisting of ground floor and first floor. The construction of the ground floor was completed on 20/4/1994 as evidenced by Ext.P11 occupancy certificate and the first floor was completed only on 3/10/1996 as evidenced by Ext.P12 occupancy certificate issued by the local authority. It is the contention of the petitioner that first floor was used exclusively for residential purposes and the ground floor for non-residential purposes. Both floors were constructed in different time. There are two apartments of which one is occupied by the petitioner and the other is let out. She filed Exts.P1 and P2 returns though belatedly showing the details, the Assessing Authority assessed both the ground and first floor treating the same as non- residential purposes. On the basis of the circular issued by the Government directing to treat the entire building as non-residential -2- O.P.No.15456/1999 purposes as a portion of the building is used for such non- residential purposes. Such circular has no force of law. Though she filed an appeal or revision, she did not succeed and hence this original petition. No doubt the petitioner had constructed both the ground floor and first floor. The completion of the ground floor as evidenced by Ext.P11 was in 1994 whereas the first floor was in 1996. Therefore, what is pertinent to note is as to whether the construction of the ground floor was used for residential or non-residential purposes. Admittedly, it was treated as non-residential, as there was no dispute. But the completion was in 1994 and therefore it has to be assessed at the rate as on the date of completion of the construction. The first floor is also treated as non-residential building merely for the reason that the ground floor is let out for use as godown or office purpose. This view taken by the authority does not appear to be supported by the specific provisions contained therein. It was held by this court that when a building consists of different floors -3- O.P.No.15456/1999 or different apartments; but such apartments could have an independent existence as a separate building and may be owned by different persons also, it may be residential or non-residential. The fact that subsequent to the construction it uses in different purposes cannot by itself be conclusive. What is to be noticed is whether the building was constructed with the intention to use as a residential purpose or even as a godown. Nothing prevents the owner from constructing first floor for his own residential purposes. Therefore, if a ground floor is constructed and is intended to be used for other purposes, that by itself does not mean that the first floor is also to be assessed in the same manner. The first floor is intended to be used as a residential purpose. If so, that may be assessed only at the rate as is prescribed for residential purpose. In the circumstances, the orders impugned are set aside. The Assessing Authority, may after conducting an inspection, verify whether the first floor is intended to be used as residential purpose and if so, it should be assessed only at the rate -4- O.P.No.15456/1999 as is applicable to the residential building. If on such assessment it is found that the amount remitted is in excess, such excess be refunded. Original Petition is allowed. P.R.RAMAN, Judge. kcv. P.R.RAMAN, J. -------------------------- -5- O.P.No.15456/1999 O.P.NO.15456 OF 1999 -------------------------- JUDGMENT 29th August, 2008