IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 13339 of 2010(N) -------------------------- PETITIONER(S): --------------- 1. E.V.SUNNY,S/O.VARKEY,AGED 53 YEARS, EDAKKATTUKUDIYIL HOUSE,KARUKIDAM,KOTHAMANGALAM. 2. RANI SUNNY,W/O.SUNNY,AGED 47 YEARS, EDAKKATTUKUDIYIL HOUSE,KARUKIDAM,KOTHAMANGALAM. BY ADV. SRI.R.MURALEEDHARAN PILLAI SRI.P.V.LONACHAN RESPONDENT(S): --------------- 1. THE TAHSILDAR,TALUK OFFICE, KOTHAMANGALAM. 2. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE,MUVATTUPUZHA. 3. THE DISTRICT COLLECTOR,COLLECTORATE, KAKKANAD,ERNAKULAM. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.13339 of 2010-N ---------------------------------------- Dated this the 22nd day of November, 2010. J U D G M E N T The petitioners along with deceased father of the first petitioner, were the owners of a property, having an extent of 9.550 cents. After obtaining a building permit for construction of a four storied commercial complex, the petitioners along with deceased co-owner had executed Ext.P2 agreement, in which they have decided among themselves to construct individual floors of the building by meeting the expenses individually. As per terms of Ext.P2 agreement, the basement floor has to be constructed by the deceased father and the cellar floor as well as ground floor has to be constructed by the first petitioner, and the first floor has to be constructed by the second petitioner. Specific recitals in Ext.P2 is to the effect that, each such area will be constructed individually by meeting the cost of the construction by each of them. According to the petitioners the construction was completed on the basis of W.P(C) No.13339 of 2010-N 2 Ext.P2 agreement and distinct area of the building owned separately by each of them was constructed by meeting the cost individually. 2. However, disregarding the separate returns filed by the petitioners and the deceased co-owner, assessment was completed by virtue of Exts.P3 and P3(a), treating the entire building as single unit and calculating the entire plinth area. The petitioners along with the deceased co- owner have challenged the assessment in a writ petition filed before this Court. In Ext.P4 judgment this Court observed that, by virtue of the agreement the petitioners along with the deceased co-owner had decided to take separate possession of each one's share by dividing the building on floor basis and to construct the share of each of them at the cost to be met by each of them separately. The petitioners were relegated to appellate remedy granting permission to file statutory appeal, within a period of one month from the date of receipt of a copy of the judgment. It was directed that, if such appeal is filed, the appellate W.P(C) No.13339 of 2010-N 3 authority should consider and dispose of the same on merits. Since the co-owner died in the meanwhile, the petitioners have filed appeal in compliance with the direction, before the second respondent appellate authority. The share of the father was devolved upon the first petitioner by virtue of Ext.P5 partition deed. The appeal was considered and disposed of by the second respondent as per Ext.P7 order. Grievance of the petitioner is that the appellate authority had failed to consider the matter in a proper manner, after affording any reasonable opportunity of hearing to the petitioners or without any opportunity to adduce evidence regarding separate ownership. Consequent to dismissal of the appeal, recovery steps has now been initiated against the petitioners on issuing Ext.P8 notice claiming the balance amount of tax. 3. On a perusal of Ext.P7, it is evident that the appellate authority had rejected the claim of the petitioners for separate assessment on the basis of the finding that the petitioners were not able to prove separate ownership. It is W.P(C) No.13339 of 2010-N 4 also observed by the appellate authority that the portion of the building upon which separate ownership is claimed is overlapping to the property owned by others and therefore the claim for separate assessment could not be sustained. 4. In a counter affidavit filed by the first respondent, it is submitted that on perusal of the documents produced by the petitioners and on the basis of inspection conducted at the site, it was found that each floor of the building is situated in the land owned by the three individuals. Therefore, it is stated that Ext.P2 agreement is of no legal value with regard to assessment of the building tax. It is further stated that, since no person can construct a building in his name on another's land, Ext.P2 agreement could not be considered as a valid document. It is also observed that by virtue of Ext.P2, the executants have the 'right of way' through stair case and therefore there is no clear cut separate ownership, possession as well as separation between the portions which were set apart for each of them. It is also stated that the petitioners have failed to produce W.P(C) No.13339 of 2010-N 5 any proof to substantiate their claims with respect expenditure of the cost of the construction separately by each of them. Hence the first respondent is of the opinion that the claim for separate assessment could not be considered. 5. The crucial question which need be considered for allowing separate assessment is, as to whether distinct portion of the building are separately owned by each of the parties. Whether the separate portions are lying independently and whether the cost of construction of each portion have been met separately by each of them. It seems that the appellate authority is under a misconception that the petitioners could not own distinct portion of the building constructed upon the land owned by each of them separately. Going by terms of Ext.P2 agreement, it is evident that all the three persons have decided to construct a building in the land owned by all of them, with distinct ownership with respect to different floors. The observations contained in the counter affidavit is to the effect that, no W.P(C) No.13339 of 2010-N 6 person can construct the building in his name on another's land, is not a correct proposition of law. For the purpose of assessment of building tax, ownership of the building is the relevant factum, no matter whether the building is constructed on the basis of consent by any other person. Under such circumstances, I am of the view that the appellate authority has not considered the matter in its real perspective. Of course, it is the burden of the petitioners to prove that ownership of distinct floors is vested on each of them separately. They are also bound to prove that cost of construction of each portion has been met by them separately. It is evident that the petitioners have not adduced any proper documentary or other evidence in this regard. However, since the matter was not considered in its real perspective, I am of the view that reconsideration by the appellate authority, after affording proper opportunity to the petitioners to produce sufficient evidence, will serve the ends of justice. 6. In the result, Ext.P7 order of the appellate W.P(C) No.13339 of 2010-N 7 authority is hereby quashed. The second respondent is directed to reconsider the matter, after affording a reasonable opportunity to the petitioner to adduce evidence and also an opportunity of personal hearing. Fresh decision in this regard shall be taken bearing in mind the observations contained herein above. 7. The second respondent shall decide the matter afresh at the earliest possible, at any rate within two months from the date of receipt of a copy of this judgment. 8. Recovery steps initiated for realisation of the balance amount of tax shall be kept in abeyance till a fresh decision is taken by the second respondent, subject to condition of the petitioner remitting the second instalment as per Ext.P3 demand (a sum of Rs.28,350/-) within a period of one month from today. C.K.ABDUL REHIM JUDGE ab W.P(C) No.13339 of 2010-N 8