IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 WP(C).No. 7443 of 2005(J) -------------------------------------- PETITIONERS: ---------------------- 1. GEEVARGHESE, AGED 48, S/O. VARKEY, PUTHUSSERRY HOUSE, PUTHUKKAD KARA, VENGOOR VILLAGE. 2. JOHNY, S/O. MATHEW, AGED 45, PUTHUSSERRY HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: ------------------------- 1. DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD. 2. REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. 3. TAHSILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR. BY GOVERNMENT PLEADER SRI. K.P. PRADEEP- R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7443/2005 J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.1350 DTD. 23/04/1997. EXT.P2: COPY OF THE OWNERSHIP CERTIFICATE OF BUILDING NO.8/74 C OF VENGOOR GRAMA PANCHAYAT, BEARING NO.A2-4/00 DTD. 22/12/2000. EXT.P3: COPY OF THE OWNERSHIP CERTIFICATE OF BUILDING NO.8.74 C BEARING NO.A2-4/00 DTD. 13/12/00. EXT.P4: COPY OF BUILDING TAX RECEIPT NO.61 OF BOOK NO. 14345 ISSUED FROM VENGOOR GRAMA PANCHAYAT DTD. 27/05/03. EXT.P5: COPY OF BUILDING TAX RECEIPT NO.62 OF BOOK NO. 14345 ISSUED FROM VENGOOR GRAMA PANCHAYAT DTD. 27/05/03. EXT.P6: COPY OF PROCEEDINGS OF 2ND RESPONDENT BEARING NO.G1-15177/03 DTD. 17/01/2004. EXT.P7: COPY OF DEMAND NOTICE ISSUED BY 2ND RESPONDENT BEARING NO.G1,.15177/03 DTD. 17/10/2004. EXT.P8: COPY OF WRIT PETITION © NO.7642/04 DTD. 22/03/04. EXT.P9: COPY OF THE APPEAL DTD. 12/04/04. EXT.P10; COPY OF ORDER NO.A7-2478/04 C.DIS. DTD. 1/1/05. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C). No.7443/2005-J ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 28th day of July, 2008 J U D G M E N T In this writ petition, the petitioners challenge the order of assessment which stands confirmed by the Revenue Divisional Officer as per Ext.P10. The short facts leading to the dispute are the following:- 2. The first petitioner is the owner of 33.20 ares of property in Re-survey No.115/7 of Block No.13 of Vengoor Village. By Ext.P1 sale deed dated 23/04/1997 he assigned one half right over the 10 cents of property in Survey No.111/11 (old number) in favour of the second petitioner, wherein the the first petitioner had already started construction of the building together with the car porch in the ground floor and staircase on the northern side. Thus, the second petitioner obtained undivided one half right over the 10 cents of property and the car porch in the ground floor and the northern stair case and the right to construct the first floor of the building over the ground floor which was under construction by the first petitioner. It is submitted that both the floors were separately constructed and the first petitioner is in occupation of the ground floor portion of the building except the car porch and the staircase; and the car porch, staircase and the first floor W.P.(C).NO.7443/2005-J -:2:- belongs to the second petitioner. The portions of the building have been separately numbered by the Panchayat, viz. the portion belonging to the first petitioner is numbered as 8/74B and that of the second petitioner is numbered as 8/74C. This is evidenced by Ext.P2 and P3. It is also averred that the electricity connection is also separate with different consumer numbers, namely, 6307 and 9223 respectively. It is also to be noticed that the Panchayat has assessed building tax separately for these two separate portions which is evidenced by Exts.P4 and P5. 3. They submitted separate returns in connection with the assessment of the building tax but when the assessment was finalised, the entire building was considered as a single unit. This is evidenced by Exts.P6 and P7. They challenged the same in W.P.(C).No.7642/2004 wherein the petitioners were directed to file an appeal before the Revenue Divisional Officer. Accordingly, an appeal was filed which was disposed of by Ext.P10. 4. Learned counsel for the petitioners submitted that this building cannot be assessed as a single unit in view of the independent ownership, possession as well as other facts like assessment of property tax separately by the Panchayat, separate electricity connection and the like. It is submitted that the authority has not bestowed attention to the principles laid down by this Court in similar cases. There is an earlier decision in Anto v.Municipal Commissioner [1994 (1) KLT 790] W.P.(C).NO.7443/2005-J -:3:- followed by certain subsequent decisions and also the recent decision of a learned Single Judge reported in Lisha Babu v. District Collector [2007 (4) KLT 648]. 5. At the time of admission of this writ petition, this Court had directed the Tahsildar to make a special inspection and file a statement and, accordingly, a statement has been field. A reading of the statement shows that the building is a three storied concrete building and the ground floor consists of 11 rooms, one kitchen and two car porches, two sit outs, three latrines and two staircase rooms. The first floor consists of eight rooms, one kitchen, one sit out, two latrines and one staircase room. The second floor consists of one room and staircase room. It is also stated that the second petitioner is residing in the first floor of the building with his family. Further in paragraph '6' it is noted that the whole buildings has only one electric connection bearing Consumer No.6307. The learned counsel for the petitioners disputes this fact and it is submitted that there are two different consumer numbers viz. 6307 and 9223 respectively. 6. If two floors have been separately constructed by utilising funds separately and if they are being owned, possessed, occupied and enjoyed by the petitioners differently, it cannot be assessed as a single unit going by the principles stated by this Court in the decisions noticed above. While dealing with a similar question, this Court in Lisha Babu's W.P.(C).NO.7443/2005-J -:4:- case cited above observed in paragraph '8' that the right to build over the first floor is essentially the right to title to the roof top of the existing building which is “immovable property” for the purpose of the Transfer of Property Act, 1882, and the third petitioner has thereby obtained the exclusive title to the immovable property as described in that document. Similar is the question raised herein also. Since the entire aspects have not been considered in the proper legal perspective, I quash Ext.P10. The Revenue Divisional Officer will re-consider the appeal after affording a reasonable opportunity to the petitioners for hearing and allowing them an opportunity to produce all materials that they are relying upon in support of the appeal. Proceedings for recovery will be kept in abeyance till fresh orders are passed as directed above. The writ petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, Judge ms