IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 WP(C).No. 2593 of 2008(H) ------------------------- PETITIONER(S): --------------- PAVLON BLOCK ASSOCIATION, MAROTTICHUVADU, EDAPPALLY P.O., COCHIN-682 024, REP. BY ITS SECRETARY, K.P.ARAVINDAKSHA MENON, 8A, PAVLON APARTMENTS, MAROTTICHUVADU,EDAPPALLY. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. 2. TAHSILDAR (ASSESSING AUTHORITY), KANAYANNUR TALUK, ERNAKULAM. 3. THE DEPUTY TAHSILDAR (R.R), KANAYANNUR TALUK, ERNAKULAM. 4. THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 2593 OF 2008 H ```````````````````````````````````````````````````` Dated this the 6th day of October, 2008 J U D G M E N T Petitioner claims to be one of the block associations of Palladium Enclave Owners' Association. There are two block associations of Palladium Enclave Owners' Association. There are 59 apartments. Ext.P1 is produced as the list of owners of flats under the petitioner. By Ext.P2, taking the building as one unit, the 2nd respondent issued order dated 12.2.2007 assessing the apartments at Rs.11,40,600/-. Ext.P2 shows that though certain documents were directed to be produced, they were not produced. It is stated that no notice was issued to the petitioner but it was addressed to one Anil Babu, Pavlon Palladium. Ext.P2 is passed without hearing the petitioner, it is stated. It is served on the petitioner on 27.2.2007. The petitioner submitted Ext.P3 representation dated 7.3.2007 requesting for revising the assessment, along with documents to prove the claim. WPC.2593/08 : 2 : Without considering the same, Ext.P4 RR notice is issued. It is stated that the construction of 59 apartments was undertaken by the builders on the basis of the sale agreements with each of the apartment owners. Ext.P5 is produced as true copy of one such sale deed. Ext.P6 is produced as true copy of the tax receipt of one of the owners. Petitioner challenges Exts.P2 and P4. He seeks a direction to the 2nd respondent to re-assess the building. A statement on behalf of the 2nd respondent is filed in which it is, inter alia, stated as follows: “ 1. It is submitted that on receipt of the report of the Village Officer, a hearing notice under section 9(2) 9(4) of Kerala Building Tax Act was issued on 2.12.2006 for conducting the hearing on 13.12.2006. Sri.L.P.Varghese representing the Pavlon Apartment Owners Association appeared for hearing and requested that the building consisted of 59 apartments which is owned by 59 persons and therefore separate assessment of building tax has to be made for the apartment owned by each owner. WPC.2593/08 : 3 : 2. It is submitted that according to section 2(e) of Kerala Building Tax Act, a building can be assessed separately only if the party produced sufficient documents to prove that the cost of construction of the building was met by apartment owners jointly. But, in this case, the petitioner has not produced any documents to substantiate the claim for separate assessment. 3. It is submitted that a notice was issued on 22.12.2006, and this notice was accepted by flat owners on 10.1.2007. A copy of the above notice dated 22.12.2006 is produced herewith and marked as Ext.R2(a). Even after getting the above notice, the petitioner did not produce any evidence to substantiate the claims. The building was assessed to building tax of Rs.11,40,600/- treating the entire building as one unit. Assessment order and proceedings were issued on 11.2.2007 directing to remit the amount in 4 quarterly instalments. But, the petitioner has not remitted any amount. Then, a demand notice under section 7 of RR Act was issued on 16.1.2008 to recover the arrears as public WPC.2593/08 : 4 : revenue due on land.” 2. Petitioner has filed reply affidavit in which it is stated that the statement that L.P.Varghese was heard on behalf of Pavlon Apartment Owners Association is not correct. It is stated that Ext.P2 was addressed to one Anil Babu and there is no such owner. The averment that the petitioner has not produced documents to substantiate the claim for separate assessment is not correct, it is stated. It is also stated that the petitioner had produced all the documents to make separate assessment. 3. I heard learned counsel for petitioner and learned Government Pleader. Learned counsel for petitioner would contend that notice should have been issued to individual flat owners as mandated in the decision of this court in Bavasons Constructions (P) Ltd. Vs. State of Kerala [2007 (3) KLT 101]. According to him, notice was not issued to the petitioner before passing Ext.P2 and instead, notice was issued to one Anil Babu. I find from the reply affidavit filed by WPC.2593/08 : 5 : the petitioner that the averments of petitioner is that he has produced all the documents to make separate assessment for the building. Eventhough the file is produced, there is nothing in the file to warrant a separate assessment of the flats as contended by the petitioner. At the time of hearing in this matter also, this court granted time to the learned counsel for the petitioner to produce whatever documents he want to produce to warrant a separate assessment. Despite the same, no document at all has been produced as it is necessary to make a separate assessment. Ext.P2 is dated 12.2.2007. The petitioner has submitted Ext.P3 on 7.3.2007. In Ext.P3, the documents enclosed are as follows: (i) copies of tax paid receipts; (ii) electricity bills and individual cable TV bills of the owners; and (iii) possession certificates issued by the Grama Panchayat. 4. The aforesaid documents are hardly sufficient to establish the ingredients of Explanation 2 to section 2(e) of the Kerala Building Tax Act. In the light of the materials on WPC.2593/08 : 6 : record, I feel that the petitioner has not made out a case to grant the relief prayed for. Hence, the writ petition fails and it is dismissed. (K.M.JOSEPH, JUDGE) aks