IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 27727 of 2007(A) -------------------------- PETITIONER: ------------ M.D.JAYANTHAN NAMBOODIRIPAD, D1-SREE HARI APARTMENTS, TRIPUNITHURA. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO MINISTRY OF REVENUE, TRIVANDRUM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. 4. DEPUTY TAHSILDAR(BUILDING TAX), TALUK OFFICE, KANAYANNUR, KOCHI-11. 5. VILLAGE OFFICER, NADAMA VILLAGE, TRIPUNITHURA. ADDL. RESPONDENTS: 6. POORNASREE RESIDENCY FLAT OWNERS ASSOCIATION REP. BY SECRETARY, SULEKHA RAJACHANDRAN, FLAT NO.D-1, POORNASREE RESIDENCY, TRIPUNITHURA. 7. RAJADHANI APARTMENTS FLAT OWNERS ASSOCIATION REP. BY SECRETARY, JAYARAJ, FLAT NO.S-2, RAJADHANI APARTMENTS, TRIPUNITHURA. 8. VEEDAPUREE GARDENS FLAT OWNERS ASSOCIATION REP. BY SECRETARY NANDAKUMAR.R.V., FLAT NO.B-2, VEEDAPUREE GARDENTS, TRIPUNITHURA. 9. POORNASREE GARDENS FLAT OWNERS ASSOCIATION REP. BY SECRETARY MANIKANTAN, FLAT NO.A-2, POORNASREE GARDENS, TRIPUNITHURA. (ADDL. RESPONDENTS 6 TO 9 ARE IMPLEADED AS PER ORDER DT.3.10.2007 IN I.A. NO.12692/2007.) R1 TO 5 BY G.P. SRI.MATHEW VADAKKEL R9 BY ADV. SRI.SERGI JOSEPH THOMAS SMT.SOUMINI JAMES R6, R7 & R8 BY ADV. SRI.P.R.RAMACHANDRA MENON SMT.M.N.UMARANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF REGISTERED SALE DEED CONVEYING FRACTIONAL RIGHTS IN FAVOUR OF JAYAPRAKASH N. PILLAI IN POORNASREE RESIDENCY. P1(a) TO P1(g): TRUE COPIES OF OCCUPANCY CERTIFICATES IN RESPECT OF 7 FLATS IN POORNASREE RESIDENCY ISSUED IN FAVOUR OF OWNERS OF FLATS. P1(h): TRUE COPY OF CONSTRUCTION AGREEMENT EXECUTED BETWEEN JAYAPRAKASH N.PILLAI AND PETITIONER. P2: TRUE COPY OF REGISTERED SALE DEED CONVEYING FRACTIONAL RIGHTS IN FAVOUR OF SRI.MANOJ AND SRI.NIRMALA RAVEENDRAN OF RAJADHANI APARTMENTS. P2(a): TRUE COPY OF CONSTRUCTION AGREEMENT EXECUTED BETWEEN SRI.MANOJ AND ANOTHER WITH PETITIONER. P3: TRUE COPY OF REGISTERED SALE DEED OF FRACTIONAL RIGHTS IN FAVOUR OF SRI.SUNOJ OF VEDAPUREE GARDENS. P3(a): TRUE COPY OF CONSTRUCTION AGREEMENT EXECUTED BETWEEN SRI.SUNOJ AND PETITIONER. P4: TRUE COPY OF REGISTERED SALE DEED CONVEYING FRACTIONAL RIGHTS IN FAVOUR OF SMT.LAKSHMIKUTTY AMMA OF POORNASREE APARTMENTS. P4(a): TRUE COPY OF CONSTRUCTION AGREEMENT EXECUTED BETWEEN LAKSHMIKUTTY AMMA AND PETITIONER. P5(a) TO P5(d): TRUE COPIES OF PRE-ASSESSMENT NOTICES ISSUED BY R3. P6(a) TO P6(d): TRUE COPIES OF EXPLANATIONS GIVEN BY PETITIONER. P7(a): TRUE COPY OF ASSESSMENT ORDER ISSUED BY R3 IN RESPECT OF FLATS IN POORNASREE RESIDENCY. P7(b): .DO. RAJADHANI APARTMENT. P7(c): .DO. VEDAPUREE GARDENTS. P7(d): .DO. POORNASREE APARTMENTS. P8(a) & P8(b): TRUE COPIES OF COMMUNICATIONS ISSUED BY R3 TO SBT FOR CREDITING THE PART PAYMENTS MADE BY THE PETITIONER IN RESPECT OF FLATS IN POORNASREE RESIDENCY AND RAJADHANI APARTMENTS. P9: TRUE COPY OF REPRESENTATION DT.30.3.07 SUBMITTED BY PETITIONER FOR REFUND OF PAYMENTS CREDITED UNDER EXT.P8 SERIES. P10(a) TO P10(d): TRUE COPIES OF DEMAND NOTICES ISSUED BY R4 ON THE PETITIONER. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.27727 of 2007 .................................................................... Dated this the 4th day of April, 2008. JUDGMENT The petitioner is the builder of four building complex comprising of residential apartments. Four separate assessments are completed for each building which are under challenge in this W.P. If the flats are constructed under agreement with the buyers and with their money, then of course each and every flat has to be separately assessed. It is so held by this court in the decision in BAVASONS CONSTRUCTIONS(P) LTD. V. STATE OF KERALA (2007(3) KLT 101). Even though flat owners' Association of the four residential apartments are parties in this court, the Associations or the flat owners have not filed any return or remitted the tax. Obviously tax is liable to be paid by each flat owner and if tax is not paid, such flat should be attached and sold under Section 19(2) of the Kerala Building Tax Act. However, I feel an opportunity should be given to the Associations to arrange for filing of returns and payment of tax within a reasonable time, failing which the flat involved will be attached and sold by the Tahsildar. There will be direction to respondents 6 to 9 to collect and remit tax provisionally at the rate of rupees two thousand per flat from each flat 2 owner towards building tax before the third respondent within a period of one month from the date of receipt of copy of this judgment, failing which he will attach the flat or the flats in respect of which tax is not paid at above rate. The office bearers of the Association will communicate the judgment to the members of the Association for remittance through the Association. It will be open to the Association to furnish details of owners and the plinth area of the flats involved for assessment of all flats simultaneously and for recovery and if there is no co-ordination, it is for individual flat owners to file return and face assessment. The payment made will be adjusted towards tax assessed and balance, if any, will be recovered from the respective flat owner or the Association concerned. Since petitioner is not liable, petitioner will be exonerated from liability. If provisional payment ordered is not paid as above, the Tahsildar will be free to effect attachment and proceed with recovery. Whatever is the payment made by the petitioner, should be refunded to him after full tax is recovered from the owners. W.P. is disposed of as above. C.N.RAMACHANDRAN NAIR Judge pms