IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 30280 of 2010(H) -------------------------- PETITIONER(S): --------------- 1. PRADEEP KUMAR @ PRADEEP MENON, X/19A, ASOK APARTMENTS, KAKKANAD-682030. 2. MADHU MENON, X/19A, ASOK APARTMENTS, KAKKANAD-682030. BY ADV. SRI.ASOK M.CHERIAN SRI.SANTHOSH G. PRABHU SRI.S.KANNAN SMT.S.RAKHEE RESPONDENT(S): --------------- 1. THE TAHSILDAR, KANAYANNOOR TALUK, TALUK OFFICE, KANAYANNOOR, KOCHI-682011. 2. THE DEPUTY TAHSILDAR (BUILDING TAX) TALUK OFFICE, KANAYANNOOR, KOCHI-682011. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 30280 OF 2010 ------------------------------------- Dated this the 1st day of November, 2010 JUDGMENT Petitioners were owners of 12 cents of property situated in Kakkanad village. They entered into agreements with 9 persons, for sale of undivided share in the said property and also for construction of distinct residential apartments for each one of them. It is stated that after completion of the construction of 10 distinct apartments, the petitioners have executed separate sale deeds transferring undivided share in favour of each one of the purchasers. According to the petitioner, assessments were made by the local authority assigning separate number for individual flats in the name of each of such purchasers. 2. Issue involved in this Writ Petition is regarding assessment completed under the Kerala Building Tax Act, 1975. The first respondent had issued Ext.P3 order of assessment and Ext.P4 notice of demand on the 2 WP(C) No. 30280/2010 petitioners assessing a total amount of Rs.1,98,000/- treating the entire building as a single unit, having plinth area of 1254.70 square meter. According to the petitioners, on receipt of Exts.P3 and P4, they have submitted Ext.P5 request to the first respondent to recall the assessment and to assess the individual apartments separately. Grievance of the petitioner is that without considering Ext.P5, recovery steps has now been initiated on issuing Ext.P6 notice under Section 7 of the Kerala Revenue Recovery Act. 3. Under normal circumstances, this Court may not be inclined to interfere with Exts.P3 and P4, because of the effective remedy available by way of appeal provided under the statute. But on a perusal of Exts.P3 and P4, it is noticed that the assessment was finalised against (1) Sri.Pradeep Kumar @ Pradeep Menon, (2) Madhu Menon & flat owners. Another discrepancy is that in Ext.P3, the building is categorised as residential, whereas Ext.P4 demand it is mentioned that the building is coming within the category of 'other building'. Ext.P3 order of assessment is issued 3 WP(C) No. 30280/2010 only in a printed form and it does not reveal as to whether any notice was issued by the first respondent before finalising the assessment either to the petitioners or to any one among the flat owners. It is not also discernible as to whether such persons have raised any objections. Going through Exts.P3 and P4 it can only be presumed that the assessment was initiated against all the flat owners. But nothing is discernible to the effect that the first respondent had considered eligibility of the petitioners or others to have separate assessment of individual flats as contemplated under explanation 2 to Section 2 (e) of the Kerala Building Tax Act. 4. Under the above circumstances, I am of the considered opinion that the matter needs reconsideration at the hands of the first respondent. It is necessary in the interest of justice to finalise the assessment afresh after issuing notice to the petitioners as well as owners of other flats, details of whom are furnished by the petitioner through Ext.P5. 4 WP(C) No. 30280/2010 5. The first respondent is directed to finalise the assessment afresh after issuing notice to the petitioners as well as nine other owners of the apartments whose details are given in Ext.P5. Specific decision will be taken by the first respondent regarding the claim for separate assessment under explanation 2 to Section 2 (e) of the Act. A decision in this regard shall be taken as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment, after affording an opportunity of personal hearing to all the parties mentioned. 6. Till such time fresh assessment is finalised by the first respondent, recovery of amounts pursuant to Ext.P6 shall be kept in abeyance. Needless to say that the liability of the petitioner will depend upon the outcome of fresh assessment be completed as directed. C.K. ABDUL REHIM JUDGE dnc