IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 WP(C).No. 3723 of 2005(R) --------------------------------------- PETITIONER: -------------------- K.P.NABEESA, AGED 48 YEARS, W/O.(LATE) HAMZA, KOTTOPPADATHU PILANAYIL, NETHIRIMANGALAM, PATTAMBI, OTTAPALAM, PALAKKAD DISTRICT. BY ADV. SRI.U.MUHAMMED MUSTHAFA SRI.K.ABDUL JAWAD RESPONDENTS: --------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, PALAKKAD. 3. REVENUE DIVISIONAL OFFICER, OTTAPALAM, PALAKKAD DISTRICT. 4. THAHASILDAR, OTTAPALAM TALUK OFFICE, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER SRI. K.P.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.3723/2005 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.1156/99 DTD. 12/05/1999. EXT.P2: COPY OF THE SALE DEED NO.1157/1999 DTD. 12/05/1999. EXT.P3: COPY OF THE PARTITION DEED BEARING NO.432/1/02 OF S.R.O. PATTAMBI DTD. 22/03/2002. EXT.P4: COPY OF THE ORDER NO.K.DIS.845/02/F.DTD. 5/12/2002 PASSED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C). No.3723/2005-R ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 25th day of July, 2008 J U D G M E N T The challenge in this writ petition is against Exts.P4 and P5 orders passed by the appellate authority and the revisional authority in exercise of the powers conferred under the Kerala Building Tax Act. The short facts necessary for the disposal of the case are the following:- 2. The petitioner's husband died leaving three children, and 93 cents of property in various survey numbers in Ottappalam Taluk. After his death, the property devolved on the petitioner, their children and his mother. Subsequently, the mother of the deceased released her share in favour of the petitioner and her children. A commercial building was constructed in the property after selling 9 cents out of the entire 93 cents. Ext.P3 is a partition deed whereby various portions of the building have been allotted for each of the parties. The entire building has been partitioned among them. 3. For the purpose of the building tax, the building was assessed as a single unit. It is submitted that even though appeal was filed and a further revision was also resorted to, none of the authorities have considered the crucial aspects i.e., as to whether each portion W.P.(C).NO.3723/2005-R -:2:- owned by each owners can be held as separate building for assessment of building tax under the Building Tax Act. The learned counsel for the petitioner relied upon the decisions of this Court namely, Balu v. State of Kerala [1994 (2) KLT 42] and Lissy v.Tahsildar [2000 (3) KLT 497] to contend for the position that in respect of part of the building independently owned and used as such, a separate assessment is possible. In Balu's case cited above, even though the question was considered in relation to the effect of Explanation 2 to Section 2(e) of the Act, it was held that “the land belongs to the various flat owners in co-ownership, after the personal transfer effected to them of the undivided interest in the land, the transfer being effected after the construction of the flats was complete.” It was also held that “the fact that the undivided interest in the land is transferred only subsequent to the construction of the flats is in my opinion, irrelevant in deciding on the applicability”. Therefore, the question was examined whether if a building consists of different apartments or flats owned by different persons, each apartment or flat shall be deemed to be a separate building. Therefore, even in a case where at the time of construction the land belonged initially to the parties but the transfer was effected after the construction of the flats, then the assessing authority will have to consider whether each apartment of the flat has to be assessed separately. The same principle may be applied in a case like here, in W.P.(C).NO.3723/2005-R -:3:- which a commercial building was constructed in a common floor but subsequently the parties have apportioned it and are enjoying each part separately. This issue is further clear, going by the decision in Lissy's case cited above. The following dictum laid down in paragraph '15' of the above said judgment will show that in certain cases separate assessments could be made. “Section 2(e) makes no difference between commercial or residential building. It specifically mentions part of the building also and the assessment is on the owner of the building. Act has to be interpreted as a whole. Part of the building if independently, can be used with separate door and with the aid of explanation especially considering the definition of 'owner' and assessment is in respect of the owner of the building. Flats and multi-storeyed buildings are jointly made by co-owners considering the exorbitant cost and reducing the expenses. However, if the building is no coming under the explanation of S.2(e), such buildings or independent self-sufficient portion of the building cannot claim assessment as a separate building unless the owner has got ownership in separate definite portion of the building which has got independent W.P.(C).NO.3723/2005-R -:4:- access. In other words, if it is jointly owned by several persons, it cannot be stated that it is a separate building and each part should be owned by separate persons for claiming separate assessment unless one will come under the Explanation.” 4. The argument raised is that even though the property devolved on the mother (petitioner) and the children consequent on the death of the petitioner's husband, going by the partition deed, they have been allotted shares and they are independently holding separate shares and the enjoyment is separate. In the revisional order what is stated is that there is no evidence to prove that the cost of construction was met jointly by the petitioner and her children. It is also observed that there was no absolute title over the building before issuance of the assessment order. Therefore, the crucial aspect whether they are independent owners of the portions of the building has not been considered. A reading of the order of the appellate authority also shows that these aspects were not considered. What is stated by the appellate authority is only that the partition deed which came into being subsequently cannot be taken into consideration while assessing building tax. 5. In the light of the above, the matter will have to be considered by the assessing authority itself. So, to enable the assessing W.P.(C).NO.3723/2005-R -:5:- authority to consider the matter afresh, Exts.P4 and P5 orders are quashed. The assessment order also stands set aside. The petitioner will be allowed to produce all the necessary materials. The assessing authority shall consider the matter in the light of the decisions referred to above and pass a speaking order after considering the matter on merits on the objections raised by the petitioner within a period of five months from the date of receipt of a copy of the judgment. The writ petition is allowed as above. Depending upon the outcome of the final order, if any excess amount has been recovered, the same shall be refunded also. T.R.RAMACHANDRAN NAIR, Judge ms