IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 36139 of 2005(B) -------------------------- PETITIONER: ------------ M/S.PIONEER SHOPPING COMPLEX (P) LTD., NOW RE-NAMED AS PIONEER NIRMAN INDIA (P) LTD., PLOT NO.1, MARINE DRIVE, ERNAKULAM, KOCHI-31, REPRESENTED BY ITS MANAGING DIRECTOR SATISH K.MITTAL. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN SRI.BENOJ C AUGUSTIN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. TAHSILDAR, KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM. BY SHRI.TEKCHAND, GOVERNMENT PLEADER FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.36139/2005 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF TERMS AND CONDITIONS OF ALLOTMENT OF FLATS TO EACH ALLOTTEE. P2 : COPY OF JUDGMENT DATED 30/08/2000 OF THE DIVISION EBCNH IN THE WRIT APPEAL 1786/1998. P3 : COPY OF NOTICE OF ASSESSMENT DATED 06/07/2005 ISSUED BY RESPONDENT. P3(a) : COPY OF NOTICE OF DEMAND ISSUED BYR 2 TO PETITIONER DATED 07/11/2005. P4 : COPY OF LETTER DATED 06/12/2005 ISSUED BY R2 TO MANAGER, DHANALAKSHMI BANK. P5 : COPY OF ORDER DATED 05/12/2005 ISSUED BY R2. P6 : COPY OF ACKNOWLEDGEMENT DATED 08/10/97. P7 : COPY OF LETTER DATED 27/12/2005. P8 : COPY OF LETTER DATED 31/12/2005. P9 : COPY OF RECEIPT DATED 27/03/2006. ANNEXURE A1 & A2 : COPIES OF NOTICES ISSUED BY RESPONDENTS DATED 02/04/2007 TO TWO OF THE APARTMENT / SHOP OWNERS. ANNEXURE A3 : COPY OF NOTICE DATED 28/04/2007 SENT BY PETITIONER TO R2. RESPONDENT'S EXHIBITSs R2(a) : COPY OF THE LETTER DATED 12/05/05. R2(b) : COPY OF NOTICE DATED 19/06/06. R2(c) : COPY OF NOTICE DATED 17/11/2007. R2(d) : COPY OF COVERING LETTER DATED 04/02/2008. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ---------------------- WP(C) No.36139 of 2005 ------------------------------------ Dated, this the 18th day of July, 2008 J U D G M E N T Heard learned counsel for petitioner and learned Government Pleader. 2. Even though petitioner is challenging single assessment and demand of building tax in respect of shopping cum residential apartment complex, the owners’ association welfare trust represented by the Managing Director of the petitioner company himself informed the Tahsildar vide Ext.R2(a) dated 12/05/2005 that if the assessed building tax is apportioned among the respective commercial and residential units, the owners will remit the same. The Tahsildar has stated that in spite of his efforts, notices could not be served on all the owners of the commercial and residential apartments. However, it is conceded that some of the owners have remitted the tax in terms of the demand. According to the petitioner, petitioner has also remitted substantial amounts under interim orders of this Court. Since the owners welfare trust has agreed to remit the assessed tax on the basis of apportionment made by the Tahsildar and since the Tahsildar has in fact WP(C) No.36139/2005 -2- apportioned the same and raised separate demands on each and every owner of the residential and commercial apartments, the balance is only recovery. Section 19(2) of the Building Tax Act creates a charge on the building and the best way to recover the tax is to attach and sell the shop rooms and flats which are in arrears of tax. In fairness, the association of owners’ welfare trust should inform the owners of the flats and shop rooms about the authority of the Tahsildar to attach and sell the flats/shop rooms concerned for recovery of arrears of tax to avoid complications. In any case, since all the flats are not owned by locals and their full addresses are not made available even now to the Tahsildar, I direct the Tahsildar to send one copy each of the notices to the defaulters in the addresses given by the owners association and also to serve notice to the owners association in a representative capacity, so that none of the owners will have an authority to question the same for want of service. The Tahsildar will send a letter proposing to attach and sell the flats or the shop rooms involved for recovery of arrears of building tax, if it is not paid with the time frame stated by him. If payment is not made, he will notify the property for sale and sell the same and recover the WP(C) No.36139/2005 -3- arrears. As and when full arrears are recovered, refund to petitioner and others to the extent of the excess tax recovered from them should be made to them. Since recovery has to be made by sale of the flats/shop rooms under Section 19(2) of the Act, the order freezing petitioner’s bank account by the Tahsildar is vacated. The writ petition is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE.) jg