IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 OP.No. 29735 of 2002(M) ----------------------- PETITIONER: ------------ M.D.ALOYSIUS, S/O.DOMINIC, AGED 73, MADAVANA HOUSE, K.B.JACOB ROAD, FORT KOCHI. BY ADV. SRI.M.R.SABU RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD. 2. THE TAHSILDAR, TALUK OFFICE, KOCHI. 3. THE VILLAGE OFFICER, FORT KOCHI. BY SHRI.K.P.PRADEEP, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO. 29735/2002 ORDER ON CMP NO. 50535/2002 IN O.P.NO. 29735/2002 DISMISSED. 08/01/2008 SD/- (C.N.RAMACHANDRAN NAIR, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ASSESSMENT ORDER BEARING NO.BT134/91/A6 DATED 11/02/92 PASSED BY 2ND RESPONDENT. P2 : COPY OF DEMANDNOTICE DATED 11/02/92 ISSUED BY R2. P3 : COPY OF MEMO DATED 14/06/94 ISSUED BY ASST. EXECUTIVE ENGINEER, CORPORATION OF KOCHI. P4 : COPY OF PROPERTY TAX RECEIPT DATED 22/07/02 ISSUED BY SECRETARY, KOCHI CORPORATION. P5 : COPY OF PROPERTY TAX RECEIPT DATED 22/07/2002. P6 : COPY OF ASSESSMENT ORDER DATED 28/09/2002 PASSED BY R2. P7 : COPY OF DEMAND NOTICE DATED 28/09/2002 ISSUED BY R2. // TRUE COPY // PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ----------------------------------- O.P. No. 29735 of 2002 ------------------------- Dated, this the 8th day of January, 2008 J U D G M E N T Petitioner is challenging Ext.P7 order of assessment issued under the Building Tax Act assessing the total plinth area of petitioner’s residential building as 312.75 sq.m. Petitioner’s case is that building was completed in stages and as and when construction of ground floor was completed, petitioner had filed return and paid tax under the Building Tax Act. First floor of the building was constructed later and was given separate building number by the Municipality and therefore, first floor should be assessed separately, is the case of the petitioner. The Tahsildar has, however, made a single assessment treating the first floor, later constructed, as part of the ground floor of the same building. If both the ground floor and first floor constitute one single residential unit, then the single assessment by the Tahsildar is perfectly justified under Section 5(4) of the Building Tax Act. The fact that petitioner obtained two door numbers from the local authority does not justify separate assessment under the Building Tax Act. Plinth area as defined under Definition clause 2(K) of the Act takes into account the ground floor, first floor and other floors of a multi storied building O.P.NO. 29735/2002 -2- for single assessment. However, separate assessment is called for when separate apartments are constructed by different owners by sharing the cost, which is provided under Explanation (2) to Section (2) (e) of the Building Tax Act. It is not known whether there is internal stair case in petitioner’s building connecting the ground floor and first floor. If the buildings are inter connected and constitute one single residential unit, then, it has to be assessed as a single unit. If construction is completed in stages, then as and when each portion is completed, the assessment has to be revised in terms of Section 5(4) of the Building Tax Act. However, if petitioner has constructed two floors, both constitute independent residential apartments, at different times, then petitioner is entitled to separate assessments. In any case, the controversy arose because assessment was completed and order issued without considering the issues raised by the petitioner. This original petition is, accordingly, disposed of directing 2nd respondent to re-consider the matter, after conducting inspection of the building and after verifying whether both the floors are intending to be used as a single residential unit, no matter, presently, the buildings are given separate numbers or even different persons are residing there. O.P.NO. 29735/2002 -3- Single facility like internal stair case is sufficient to justify single assessment as a single unit, which is a matter for adjudication by the Tahsildar. If petitioner is entitled to separate assessments based on the observations as above, petitioner is directed to file objections before the 2nd respondent within a period of two weeks from receipt of this judgment and in that event, 2nd respondent will make assessment after considering such objections and issue order to the petitioner. The 2nd respondent is directed to decide the matter afresh within a period of one month from the date of filing objections. Interim order of stay will continue for a period of four months from now. Recovery thereafter will be based on revised orders to be issued as directed above. (C.N.RAMACHANDRAN NAIR, JUDGE.) jg