IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 WP(C).No. 36440 of 2007(K) ------------------------------------- PETITIONERS: ---------------------- 1. P.K.RAHMATHUNEEZA, W/O.A.B.ABDULKAREEM, ADAMBAYIL HOUSE, MULEPADAM ROAD, KALAMASSERY. 2. P.K.SHAHARUBANNU, W/O.ISHAQUE, PAMBEZHATHU HOUSE, MATHILAKAM, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR) RESPONDENTS : ------------------------- 1. DISTRICT COLLECTOR, ERNAKULAM DISTRICT. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. 3. THE TAHSILDAR, KANAYANNUR TALUK. SRI. BIJOY CHANDRAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36440 /2007 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1: A TRUE COPY OF AGREEMENT DATED 24/12/2002 ENTERED INTO BETWEEN THE PETITIONERS. EXHIBIT P2: A TRUE PHOTOCOPY OF THE APPROVED PLAN OBTAINED FROM CORPORATION OF COCHIN. EXHIBIT P3: A TRUE PHOTOCOPY OF THE STATMENT OF EXPENSES INCURRED BY THE PETITIONERS EXHIBIT P4 SERIES : TRUE PHOTO COPY OF THE PROPERTY TAX RECEIPTS ISSUED BY CORPORATION OF COCHIN FOR 2007-2008. EXHIBIT P5: A TRUE PHOTOCOPY OF LEASE AGREEMENT EXECUTED BY PETITIONER 1. EXHIBIT P6: A TRUE PHOTOCOPY OF LEASE AGREEMENT EXECUTED BY PETITIONER 1. EXHIBIT P7: A TRUE PHOTOCOPY OF LEASE AGREEMENT EXECUTED BY PETITIONER 2. EXHIBIT P8: A TRUE PHOTOCOPY OF LEASE AGREEMENT EXECUTED BY PETITIONER NO.2. EXHIBIT P9: A TRUE PHOTOCOPY OF THE ORDER DATED 11/7/2005 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10: A TRUE PHOTOCOPY OF THE ORDER DATED 22/11/2005 OF THE 1ST RESPONDENT. EXHIBIT P11 SERIES: TRUE PHOTOCOPY OF RECEIPTS ISSUED BY ELAMKULAM VILLAGE OFFICE. EXHIBIT P12: A TRUE PHOTOCOPY OF THE ORDERS PASSED ON 6/9/2007 BY THE 1ST RESPONDENT. EXHIBIT P13: TRUE PHOTOSTAT COPY OF THE ORDER OF ASSESSMENT UNDER THE KERALA BUILDING TAX ORDINANCE, 1974 PASSED BY THE 3RD RESPONDENT. EXHIBIT P14: TRUE PHOTOSTAT COPY OF THE PROCEEDINGS OF THE TAHSILDAR (3RD RESPONDENT) DATED 20/08/2004 IN RESPECT OF LUXURY TAX . EXHIBIT P15: TRUE PHOTOSTAT COPY OF THE BUILDING TAX RECEIPT NO.43 (181/05) DATED 22/08/2005. RESPONDENTS' EXHIBITS: EXHIBIT R3(a): TRUE COPY OF THE RETURN FILED BY THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE RAV P.R.RAMACHANDRA MENON, J ----------------------------------------------- W.P.(CIVIL)NO.36440 OF 2007 ----------------------------------------------- Dated this 26th day of May 2009 JUDGMENT Placing reliance on the explanation 2 to section 2 (e) of Kerala Building Tax Act ('Act' in short) providing for separate assessment of the building constructed, utilizing the funds provided by different persons and accordingly owned by them separately, the petitioners have come before this Court challenging Ext.P13 assessment order, Ext.P9 appellate order and Ext.P10 revisional order passed by the authorities under the 'Act' 2. The case of the petitioners is that they are joint owners of the 7 cents in Survey No.28/6 of Elamkulam Village in Kanayannur Taluk obtained by Partition, being enjoyed exclusively by virtue of the Release Deed executed before SRO, Ernakulam. The petitioners constructed the building utilizing the funds provided by them separately as evident from Ext.P1 Agreement. Ext.P3 is the statement of accounts as to the funds pumped in to the common pool, from either side. After W.P.(CIVIL)NO.36440 OF 2007 2 completion of the construction, the building was numbered separately by the Local Authority, whereby the two different portions on the first floor and similar extents in the ground floor were numbered, collecting the tax as evident from Ext.P4 receipts. The above four different units of the building complex have been leased out by the petitioners to different persons as evident from Ext.P5 to Ext.P8 lease agreements. 3. It is the case of the petitioners that the third respondent chose to assess the building as a 'single unit' instead of assessing it separately as provided under the relevant provisions of law, whereby huge liability has been cast upon the petitioners. This was challenged by filing appeal before the second respondent which led to Ext.P9 order, declining interference. The said finding was confirmed by the first respondent as per Ext.P10 order passed in the revision petition; which in turn is under challenge in the present writ petition. 4. The stand of the respondents as revealed from the counter affidavit filed before this Court is that, but for the W.P.(CIVIL)NO.36440 OF 2007 3 agreement produced as Ext.P1, no corroborative evidence was adduced by the petitioners to have had the benefit of “Explanation 2” to Section 2 (e) of the Act. It is also stated that since the total plinth area of the entire unit is above the prescribed limit of 278.7 sq.ft, it would attract 'Luxury tax' as well. The position of law is no more open to challenge, in view of the rulings reported in 2000(3) KLT 497, 2007(3)KLT 101 and other binding decisions on the point. 5. The materials produced before this Court would show that the land jointly owned by the petitioners was decided to be used for constructing the building, utilizing the funds provided by both the petitioners. Besides Ext.P1 Agreement and Ext.P2 accounts, supporting materials such as Ext.P4 and P5 to P8 also throw some light as to the actual intention to effect the construction utilizing the funds provided by both of them to an equal proportion. The reasoning given by the third respondent in Ext.P13 assessment order to have it assessed as a 'single unit' does not appear to be correct or proper. For the very same W.P.(CIVIL)NO.36440 OF 2007 4 reason, the appellate order (Ext.P9) as well as the order passed by the revisional authority (Ext.P10) do not stand the test. This Court finds that the matter requires to be reconsidered by the third respondent, taking into account of all the facts and circumstances more elaborately. In the above circumstances Ext.P13, Ext.P9, and P10 orders are hereby set aside. The third respondent is directed to reconsider the matter, as expeditiously as possible with liberty to the petitioners to adduce further evidence, oral or documentary, to substantiate their contentions to have separate assessment for availing the benefit under 'explanation 2' to section 2 (e) of the Act. The writ petition is disposed of accordingly. P.R.RAMACHANDRA MENON, JUDGE RAV