IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 34930 of 2005(G) --------------------------------------- PETITIONER(S): ----------------------- 1. MR. P. UMMER, AGED 59, S/O. V.C. MUHAMMED, 4TH AVENUE, HARINGTON ROAD, CHENNAI-600 031. 2. K.K. LIRAR, AGED 58, S/O. KUNHIPACKY, L.G. SEA FOODS, 18/343 PALLURUTHY NADA, KOCHI-682 006. 3. P. BHASI, AGED 51 YEARS, S/O. PADIKKAL KUCHUNNI NAIR, PADIKKAL HOUSE, PERAMANGALAM P.O., THRISSUR-680 545. BY ADV. MR.B.JAYASANKAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY SPECIAL SECRETARY TO GOVERNMENT, TAXES (S) DEPARTMENT, SECRETARIAT BUILDINGS, THIRUVANANTHAPURAM. 2. TAHSILDAR, KANAYANNUR, ASSESSING AUTHORITY UNDER THE KERALA BUILDING TAX ACT. R1 & R2 BY SR. GOVERNMENT PLEADER MR.P.K.BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34930/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CONSTRUCTION AGREEMENT DTD. 15.1.93 ENTERED INTO BY AND BETWEEN THE M/S. AKARIA BUILDERS PVT. LTD. AND THE 2ND PETITIONER. P2:- COPY OF THE CONSTRUCTION AGREEMENT DTD. 10.4.94 ENTERED INTO BY AND BETWEEN THE M/S. AKARIA BUILDERS PVT. LTD. AND THE 3RD PETITIONER. P3:- COPY OF THE SALE DEED NO.2705/96 DTD. 18.6.96 EXECUTED BY M/S. AKARIA BUILDERS PVT. LTD. IN FAVOUR OF THE 2ND PETITIONER. P4:- COPY OF THE SALE DEED NO.2677/96 DTD. 17.6.96 EXECUTED BY M/S. AKARIA BUILDERS PVT. LTD. IN FAVOUR OF THE 3RD PETITIONER. P5:- COPY OF THE OCCUPANCY CERTIFICATE DTD. 23.8.96 ISSUED BY THE COCHIN CORPORATION IN THE NAME OF THE IST PETITIONER. P6:- COPY OF THE RETURN FILED BY THE 2ND PETITIONER UNDER SECTION 7 OF THE KERALA BUILDING TAX ACT IN FORM II OF RULE 5 OF THE KERALA BUILDING TAX (PLINTH AREA) RULES BEFORE THE 2ND RESPONDENT. P7:- COPY OF THE RETURN FILED BY THE 3RD PETITIONER UNDER SECTION 7 OF THE KERALA BUILDING TAX ACT IN FORM II OF RULE 5 OF THE KERALA BUILDING TAX (PLINTH AREA) RULES BEFORE THE 2ND RESPONDENT. P8:- COPY OF THE LETTER NO.9091/S3/89/TD DTD. 28.9.90 FROM THE SPECIAL SECRETARY TO GOVERNMENT, TAXES (S) DEPARTMENT TO THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. P9:- COPY OF THE PROCEEDINGS OF THE TAHSILDAR KANAYANNUR (ASSESSING AUTHORITY) DTD. 25.8.05 ASSESSING THE BUILDING AS A SINGLE UNIT IN THE NAMES OF PETITIONERS. TRUE COPY P.S. TO JUDGE tss P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 34930 OF 2005 ......................................................................... Dated this the 5th August, 2009 J U D G M E N T The petitioners are mainly aggrieved of Ext. P8 Circular issued by the Government, stipulating that, while effecting assessment under the Kerala Building Tax Act, particularly involving different apartments forming part of the building complex, unregistered agreements produced to show the nature of construction entered into between the parties cannot be looked into. The petitioners also challenge Ext. P9 assessment order passed by the second respondent, whereby the entire building complex which is actually stated as owned by 38 persons has been assessed at the hands of the petitioners, fixing huge liability upon them, which is stated as not correct or sustainable. 2. The second respondent has filed a counter affidavit challenging the maintainability of the Writ Petition, particularly in view of availability of the statutory remedy, which however W.P.(C) No. 34930 OF 2005 2 cannot be of any significance, in view of the law declared by this Court holding that the question of alternate remedy is relevant only at the time of admission, exercising the discretionary jurisdiction of this Court under Article 226 of the Constitution and that once the matter is admitted and was being entertained by this Court, the Writ Petition cannot be dismissed referring to the availability of alternate remedy, after years. 3. With regard to the reliance placed on the Circular (Ext. P8), the learned Counsel for the petitioners submits that the issue stands covered in view of law declared by this Court, as reported in Bavasons Construction (P) Ltd.vs. State of Kerala [2007 (3) KLT 101]. The documents which are compulsorily to be registered are clearly dealt with in Section 17 of the Registration Act and the scope of non registration of such documents, which are liable to be compulsorily registered, is provided under Section 49(c) of the very same enactment. Referring to the scope, nature and applicability of the provisions, it has been made clear by the Apex Court on many an occasion W.P.(C) No. 34930 OF 2005 3 that the agreements of this nature including agreements for sale need not be registered at all. Anyhow, in view of the decision rendered by this Court, as referred to above, the challenge raised against Ext. P8 Circular stands upheld and the respondents are not justified in placing reliance on the said Circular any more . 4. With regard to Ext.P9 assessment order, the specific case of the petitioners is that the building complex was constructed for and on behalf of the prospective purchasers, with whom separate construction agreements were executed between the 'builder' and such 'purchasers'. It was also agreed that the requisite undivided extent of land would be sold to such prospective purchasers and it was on behalf of them, that the construction was being effected by the 'builder'. The learned Counsel for the petitioners submits that the construction has been completed utilising the funds provided by the actual owners as above and the buildings have been separately numbered, owned, possessed and enjoyed by such persons, with separate electric/water connection. The learned Counsel further W.P.(C) No. 34930 OF 2005 4 submits that the petitioners are ready and willing to furnish all the particulars of the separate ownership of the building complex, though the same had already been submitted before the assessing authority much earlier , i.e. before passing Ext. P9. Obviously, Ext. P9 order has been passed ignoring the separate construction agreements stated as executed between the 'builder' and the prospective purchasers, holding that the said agreements were not registered and hence not acceptable in view of Ext. P8 Circular. Since the reliance placed on the Circular is held as wrong and misconceived, the matter requires to be reconsidered by the respondents in the light of the law declared by this Court vide decision in 2003(7) KLT 101 and also with specific reference to the actual facts and figures. 5. The learned Counsel for the petitioners also points out with reference to Ground 'D', that after assessing the Building Complex as a single unit, the common area has been dealt with and assessed separately, thus giving rise to duplication of the 'plinth area', which also is an aspect to be looked into and rectified by the assessing authority; if there is any duplication. W.P.(C) No. 34930 OF 2005 5 The apartment owners of the building complex are of course, liable to be assessed and accountable in respect of the common area, to the proportionate extent; but such extent is normally included in the 'plinth area' earmarked and allotted to each of the apartment owners . 6. This being the position, the actual facts and figures shall be worked out by the assessing authority with reference to the total 'plinth area' available and also taking note of the extent as conveyed to each of the apartment owners, to the exclusion of all others and also reckoning the proportionate extent of common area, which shall be part of the area owned by the particular apartment owner. The petitioners shall furnish the full particulars of the apartment owners, as above, before the second respondent within two weeks from the date of receipt of a copy of the judgment . On receipt of the same, the second respondent shall issue separate notice to all such apartment owners and finalise the assessment proceedings, after giving an opportunity of hearing, with liberty to adduce evidence. The proceedings as above shall be finalised as expeditiously as W.P.(C) No. 34930 OF 2005 6 possible and at any rate, within three months from the date of production of the particulars by the petitioners . 7. It is made clear that the amount of Rs. Two lakhs deposited by the petitioners pursuant to the interim order dated 12.06.2006 in the Writ Petition ( which was affirmed as per the judgment dated 17.07.2006 in W.A.No. 1222 of 2006) will be given credit to/set off/ refunded, subject to the outcome of the fresh assessment orders to be passed by the second respondent herein. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk