IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 OP.No. 9374 of 1997(N) ---------------------- PETITIONER: ------------ 1. N.NIRMAL KUMAR, KANNAMKERI ESTATE, SHANMUGHAM ROAD, ERNAKULAM. 2. V.MAHESH KUMAR, KANNAMKERI ESTATE, SHANMUGHAM ROAD, ERNAKULAM. 3. V.SANTHOSH KUMAR, KANNAMKERI ESTATE, SHANMUGHAM ROAD, ERNAKULAM. BY ADV. SRI.A.RAMAPRABHU SMT.R.RANJINI RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, KANAYANNUR TALUK, TALUK OFFICE, KANAYANNUR, ERNAKULAM, KOCHI. 3. THE VILLAGE OFFICER, ERNAKULAM. BY GOVERNMENT PLEADER, SRI K.P.PRADEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.16342/1997 IN O.P NO.9374/1997 CLOSED SD/-C.N.RAMACHANDRAN NAIR, JUDGE 07/01/2008 APPENDIX PETITIONERS' EXTS: EXT.P1 PHOTOCOPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONES AND CO-OWNERS. EXT.P2 PHOTO COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT TO SRI.R.VENKITESWARA SHENOY DATED 27/6/1986 EXT.P3 PHOTO COPY OF THE DEMAND NOTICE BY THE 2ND RESPONDENT TO SRI.N.VENUGOPALA SHENOY DT.27.6.86 EXT.P4 -DO - -DO- TO SRI.N.SARATHKUMAR. EXT.P5 -DO - -DO- TO SRI.N.SUNDARESH KUMAR. EXT.P6 PHOTO COPY OF THE ORDER OF ASSESSMENT AND NOTICE OF DEMAND ISSUED TO THE 1ST PETITIONER BY THE 2ND RESPONDENT DT.24.1.95 EXT.P7 -DO - -DO- TO THE 2ND PETITIONER. EXT.P8 -DO - -DO- TO TO THE 3RD PETITIONER. EXT.P9 PHOTO COPY OF REPRESENTATION SUBMITTED BY SRI.N.VENUGOPALA SHENOY BEFORE THE 2ND RESPONDENT DATED 25/4/89 EXT.P10 PHOTO COPY OF THE NOTICE DATED 3/7/96 BY THE 2ND RESPONDENT TO THE PETITIONERS. EXT.P11 PHOTO COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 6.2.97 OP.No. 9374 of 1997(N) EXT.P12 PHOTO COPY OF THE DEMAND NOTICE ISSUED TO THE PETITIONERS BY THE 2ND RESPONDENT DATED 6/2/97. EXT.P13 PHOTO COPY OF THE POST CARD ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER, REQUIRING HIM TO REMIT THE BUILDING TAX, DEMANDED AS PER P-12 NOTICE. EXT.P14 PHOTOCOPY OF THE AGREEMENT DATED 20/3/1981 EXECUTED BY THE PETITIONERS AND OTHER CO-OWNERS. \\TRUE COPY// C.N.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No. 9374 of 1997 (N) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 7th day of January, 2008 J U D G M E N T The petitioners are challenging combined assessment of 3rd 4th and 5th floors of a multi-storeyed building under the Kerala Building Tax Act, 1975. The land on which the building is constructed belongs to 7 persons. Out of 7, 4 persons constructed one floor each by 1986, and all these floors namely basement, ground, first and second floors were separately assessed in the names of each of the four persons. Thereafter, the other owners, namely, petitioners constructed 3rd, 4th and 5th floors by pooling their resources. This construction was completed in 1989, each of three petitioners owning one floor each. It is submitted that the buildings are separately let out to separate tenants. Initially, proposal made was to revise the assessment for first four floors namely basement, ground, first and second by adding to it the plinth area of the three floors later constructed. However, this was given up, but a combined assessment was made for all the three O.P.No.9374/1997-N -: 2 :- floors in the names of the petitioners, jointly. Counsel for the petitioners rightly pointed out that the separate commercial apartment owned by each of the petitioners has to be assessed as a separate unit in terms of explanation to Section 2(e) of the Kerala Building Tax Act. Counsel for the petitioner has also relied on the reported decision of this Court in Lissy v.Tahsildar [2000 (3) KLT 497], wherein this Court held that the explanation above referred applies to commercial buildings also. If the 3rd, 4th and 5th floors are independent units and constructed with the funds of the petitioners, by sharing the costs, then each floor has to be separately assessed in the names of each of the petitioners. Tahsildar is directed to verify the physical condition of the building and if it is found that each of the floors is a separate unit, he will recall the revised assessment and retain the original assessments separately made. However, if each of the floors are not separate and mutually independent, then combined assessment can be made. C.N.RAMACHANDRAN NAIR, Judge ms O.P.No.9374/1997-N -: 3 :- C.N.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No. 9374 of 1997 (N) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 7th day of January, 2008