IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 OP.No. 9708 of 2000(E) ---------------------- PETITIONER: --------------- REENA ABRAHAM, AGED 38 YEARS, W/o. ABRAHAM K.JOHN, AREENA APARTMENT, FATHIMA CHURCH ROAD, ERNAKULAM, COCHIN-20. BY ADV. SRI.V.O.JOHN SRI.JIMMY JOHN VELLANIKARAN RESPONDENTS: ------------------ 1. THAHSILDAR, KANAYANNOOR TALUK, TALUK OFFICE, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO STATE, SECRETARIAT, TRIVANDRUM. 3. VILLAGE OFFICER, ELAMKULAM VILLAGE OFFICE, GANDHI NAGAR, ERNAKULAM. BY GOVERNMENT PLEADER SMT.SMITHA BABU SRI.T.K.SHAJAHAN SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.9708/2000 2 ORDER ON C.M.P.No.16141/2000 IN O.P.No.9708/2000 DISMISSED. 03/04/2008 Sd/- T.R.RAMACHANDRAN NAIR,JUDGE APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF AGREEMENT EXECUTED WITH JESSY THOMAS. EXT.P2: COPY OF SALE DEED IN FAVOUR OF MRS.JESSY THOMAS. EXT.P3: COPY OF ORDER DATED 6.11.96 ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF DEMAND NOTICE DATED 5.11.96 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF JUDGMENT DATED 18.12.96 IN O.P.1942/96 BY THIS HON'BLE COURT. EXT.P6: COPY OF ORDER DATED 26.4.97 ISSUED BY THE 1ST RESPONDENT. EXT.P7: COPY OF ORDER DATED 26.4.97 ISSUED BY THE 1ST RESPONDENT. EXT.P8: COPY OF DEMAND NOTICE DATED 26.4.97 ISSUED BY THE 1ST RESPONDENT. EXT.P9: COPY OF ORDER DATED 6.7.1998 BY THE ASSISTANT COLLECTOR, FOR KOCHI IN THE APPEAL FILED BY THE PETITIONER. EXT.P10: COPY OF ORDER DATED 25.10.99 ISSUED BY THE DISTRICT COLLECTOR. EXT.P11: COPY OF ORDER DATED 20.3.2000 ISSUED BY THE 2ND RESPONDENT. TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR,J ==================== O.P.No.9708 of 2000 ======================== Dated this the 3rd day of April, 2008 JUDGMENT The challenge is against the proceedings issued under the Kerala Building Tax Act. The petitioner obtained 15.254 cents of land in Elamkulam Village as per Document No.1744/1989. Under the name and style, A.R. Constructions, the petitioner and her husband who were partners decided to construct a multi- storied apartment with 12 flats in that property. Separate agreements have been executed with 11 individuals and Ext.P1 is one of the said agreements. The names of parties with whom the petitioner had executed agreements are given in the first paragraph of the writ petition. Earlier, the petitioner had approached this Court challenging the assessment proceedings which culminated in Ext.P5 judgment. Thereafter, the matter was again considered by the Assessing Authority as per Ext.P6. After remand, the petitioner through her counsel produced agreements, sale deeds and cash receipts in support of the contention that the flats have been constructed separately and cost of construction has been met by the individuals separately. O.P.No.9708/2000 2 But, the Assessing Officer found against the petitioner on the main reason that the sale deeds have been executed long after completion of building. It is therefore concluded that the case of the petitioner cannot be accepted. This view has been confirmed in appeal by the District Collector and in revision by the Government. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner pointed out that the basic approach made by the Assessing Officer by taking the agreements as sale deeds, is faulty. As far as the sale deeds are concerned, they only represent the transfer of the undivided share of land in favour of the respective owners. But the scope of the terms of the agreements are different. It is therefore submitted that the terms of the agreement ought to have been verified by the Assessing Authority. The learned counsel for the petitioner has filed a detailed statement showing the payments made by the respective flat owners from the year 1993 onwards. It is therefore contended that as the Authority having failed to assess the evidence available with reference to the dates of such payments, the assessment cannot be sustained. O.P.No.9708/2000 3 3. The learned Government Pleader submits that it is a case where the petitioner has not produced sufficient materials before the Assessing Authority for enabling the Authority to consider the matter in the light of the specific provisions of the Kerala Building Tax Act. 4. Explanation 2 to Section 2 (e) of the Act is important, which is the same extracted below: “Explanation 2:- where a building consists of different apartments or flats owned by different persons and cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building.” 5. One aspect which went against the petitioner is that the agreements are not registered. Learned Counsel pointed out that the agreements are not for effecting transfer of undivided interest in land which alone requires registration. It is only made for effecting the construction, and hence are valid even without registration. I am of the view that this aspect has not been properly considered by the authorities. 6. Interpreting the above provisions, this Court in a recent decision in Bavason Constructions (P) Ltd. v. State of Kerala (2007 (3) KLT 101), has elaborated the procedure and principles to be followed in such matters in the following words:- O.P.No.9708/2000 4 “The assessing authorities shall consider the claim relating to each flat and render a separate speaking decision with reference to each flat. A common order can be passed for each residential complex. But, in that order, there should be separate finding regarding each flat/apartment. In case any flat is remaining unallotted, the assessment in respect of such flat shall be made, treating the builder as the owner. In case, in relation to a particular flat, sufficient materials are not produced to support the claim for the benefit of Explanation 2 to S.2 (e), then also, the assessment shall be made, treating the builder as the owner of the apartment. While making separate assessments of the flats, the common area shall also be divided on pro rata basis, so that the entire built up area of the building is assessed to building tax. The petitioners shall also furnish the correct addresses, as far as possible, of the allottees of the flats, to the assessing authorities. The assessing authorities shall afford an opportunity of being heard to the petitioners-builders and the individual flat owners and pass final orders in the matter, as far as possible, before 30/07/2007. They shall, as stated earlier, deal with the assessment relating to every flat/apartment separately, with reference to the documents produced.” 7. As such a detailed exercise has not been done here, the matter will have to be reassessed by the Authority after issuing notice to the 11 flat owners, whose names have been mentioned in the writ petition. The petitioner is directed to furnish the addresses of those persons to the Assessing Authority within a period of one month from the date of receipt of a copy of this judgment. The petitioner is also free to file a detailed statement showing the details of payment made by the O.P.No.9708/2000 5 respective flat owners and any other relevant data. Appropriate orders shall be passed by the assessing officer within a period of five months from the date of receipt of a copy of this judgment. To enable the Assessing Officer to do so, Exts.P6, P7, P10 and P11 are quashed. The original petition is disposed of as above. T.R.RAMACHANDRAN NAIR,JUDGE dvs