IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 OP.No. 36488 of 2000(R) ------------------------------------ PETITIONER(S): ----------------------- 1. ANCY THOMAS, VARACHERIL HOUSE, PALA. 2. LEELAMMA ANTONY, VARACHERIL HOUSE, PALA. 3. LISSY JOSE, VARACHERIL HOUSE, PALA. 4. LILLYKUTTY JOY, VARACHERIL HOUSE, PALA. BY ADV. MR.P.BABU KUMAR RESPONDENT(S): -------------------------- 1. STATE OF KERALA REP.BY ITS CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM. 2. TAHSILDAR, (ASSESSING AUTHORITY), KANJIRAPPALLY. 3. R.D.O., COLLECTORATE, KOTTAYAM. 4. DISTRICT COLLECTORATE, KOTTAYAM. GOVERNMENT PLEADER MR.V.K.SHAMSUDDIN FOR R1 TO R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.62098/2000 IN OP. NO.36488/2000 DISMISSED 21.05.2009 SD/- P.R.RAMACHANDRA MENON, JUDGE APPENDIX PETITIONER'S EXHIBITS P1(a):- COPY OF THE TAX RECEIPT DT. 20.11.94. P1(b):- COPY OF THE TAX RECEIPT DT. 20.11.1994. P1(c):- COPY OF THE TAX RECEIPT DT. 30.11.1994. P1(d):- COPY OF THE TAX RECEIPT DT. 30.11.1994. P2:- COPY OF THE DEMAND NOTICE ISSUED BY 2ND RESPONDENT DT. 25.11.1997. P3:- COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT. P4:- COPY OF THE REVISION MEMORANDUM DT. 24.4.2000. P5:- COPY OF THE ORDER PASSED BY 4TH RESPONDENT DT. 21.11.2000. P6:- COPY OF THE RECOVERY NOTICE ISSUED DT. 22.12.2000. P7:- COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE THAHASILDAR DT. 13.2.2001. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ O.P. No. 36488 of 2000 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of May, 2009 JUDGMENT The petitioners are aggrieved of the assessment order passed by the second respondent, fixing the building tax payable by them in respect of the building which consists of 5 different floors owned by the petitioners separately, treating building as a 'single unit', instead of assessing the same separately at the hands of each owner as specifically provided under the relevant provisions of Kerala Building Tax Act. 2. The petitioners submit that they are the wives of the four brothers, who own the property jointly; that the construction was done making use of common fund raised from disposing the family property; that on completion of the building, it was numbered separately and are enjoying the same by paying the requisite tax to the local authority as evident from Ext.P1(a), Ext.P1(b), Ext.P1(c) and Ext.P1(d). Petitioners contend that in respect of the above building owned by different petitioners as above; instead of completing the assessment separately, it was finalised by the second respondent as per Ext.P2 order treating the same as a 'single unit' and fixing the tax payable as Rs.72,000/-. Aggrieved by the said order, the petitioners had earlier approached this Court by filing O.P 2057 of 1998, which was disposed of, directing the OP No. 36488 of 2000 : 2 : petitioners to approach the statutory authority by filing the appeal. Accordingly, the petitioners filed appeal before the third respondent, which however was dismissed as borne by Ext.P3 order, stating that the petitioners failed to produce valid documents to prove the fact that the building was constructed jointly by using their separate funds. Even though the petitioner pursued the matter further, by filing Ext.P4 revision petition before the fourth respondent, it also happened to meet with the same fate, as borne by Ext.P5 order passed by the fourth respondent declining interference, which in turn has been challenged in the present Writ Petition. 3. The respondents have filed a counter affidavit seeking to sustain the impugned orders passed by them. The learned Government Pleader appearing for the respondents submits that, despite granting opportunity to the petitioners to substantiate their case, no reliable document was ever produced from their part to arrive at a conclusion that the concerned building was constructed jointly by utilising their separate funds contributed to the common pool. It is also pointed out by the learned Government Pleader that the stand taken by the concerned local authority numbering the building separately does not bind the respondents to have followed such a course. 4. The term 'building' is defined under Section 2 (e) of the Kerala OP No. 36488 of 2000 : 3 : Building Tax Act and 'explanation No. 2 ' reads as follows: “where a building consists of different apartments or flats owned by different persons and the cost of construction of such building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building”. It is no more in dispute that the land in which the concerned building having 5 floors has been constructed belongs to the co-owners of the property concerned. Similarly, there is also no dispute that the building after construction has been separately numbered by the concerned local authority, and that the petitioners are enjoying the same by remitting the prescribed tax separately. There is a positive assertion from the part of the petitioners that the construction was completed utilising the common funds provided by the petitioners separately. The petitioners cannot have exclusive rights to the land in question and so also to the building constructed therein, but to the extent as specifically agreed and provided with appropriate extent of the undivided share in the land concerned. As such, it is very much felt that the matter requires to be considered meticulously in view of the law declared by this Court to have separate assessments. 4. In the above facts and circumstances, the impugned orders cannot subsist any further and are hereby set aside. The second respondent is directed to reconsider the matter in the light of the Law OP No. 36488 of 2000 : 4 : declared by this Court on the point, after giving an opportunity to the petitioners to present their case. The petitioners are at liberty to substantiate the case before the second respondent by adducing further evidence. The proceedings as above shall finalized as expeditiously as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment. The Original Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd.