IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24242 of 2009(A)
1. MR.ABDUL AZEEZ, AGED 51 YEARS,
... Petitioner
Vs
1. TAHSILDAR AND ASSESSING AUTHORITY
... Respondent
2. VILLAGE OFFICER, KANNUR-II VILLAGE,
For Petitioner :SRI.SREELAL N.WARRIER
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :23/09/2009
O R D E R
C.K.ABDUL REHIM, J
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W.P(C) No.24242 of 2009
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Dated this the 23rd day of September, 2009
J U D G M E N T
1. Petitioner is aggrieved by Ext.P9 order of
assessment issued under the provisions of the Kerala
Building Tax Act, 1975. Petitioner is the builder and
promoter of a multi storied residential apartment complex.
Contention of the petitioner is that the apartment complex
contain 80 independent residential flats which are owned by
distinct allottees who had been transferred with undivided
share in the land and the cost of construction was met by
each such allottees pursuant to specific agreement executed
with the builder. It is the contention of the petitioner that in
view of the settled legal precedents of this court in
M/s.Bawasons Construction Company Vs. Thahsildar
[2007(2) KHC 409] and in Provincial Superior,
Franciscan Clarist congregation of nuns Vs. State of
Kerala [2009(1) KHC 611], if distinct apartment contain in
residential complex is owned by difference persons and if
W.P(C) No.24242 of 2009
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the cost of construction of such apartment was met by each
such owners, then the building will fall within the definition
of Section 2(e) Explanation – II of the Act, and the same
need be assessed separately against each such individuals
owners. It is the complaint of the petitioner that the
assessment order is issued without taking note of any such
contention.
2. It is noticed that, before finalising the
assessment, the first respondent had issued Ext.P8 notice to
the petitioner calling for production of documents if any,
available. It is submitted by the petitioner that all relevant
documents pertaining to transfer of undivided share in the
land, agreements executed between individual allottees and
the builder, evidence regarding expenses of construction
met by each such allottees etc; were produced before the
first respondent. It is contended that the first respondent
without accepting those documents and without adverting
to the contentions had unilaterally issued Ext.P9 order of
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assessment, treating the entire plinth area of the building
as a single unit. But at the same time the assessment order
is issued to the petitioner and 79 others, whose names are
not mentioned therein.
3. On a perusal of Ext.P9, it is noticed that it is a
cryptic order passed in a printed form. Ext.P9 will not
reflect any application of mind of the assessing authority. It
is not evident as to whether any of the contentions raised
by the petitioner has been adverted to by the assessing
authority vested with powers for assessment under a
physical statute is exercising a quasi-judicial function, and
such authorities are expected to pass speaking orders which
will reflect application of mind and advertence to the
objections of the assessee. Ext.P9 cannot be characterized
as an order which is passed after application of mind on
adverting to the contentions raised by the assessee, or after
perusing any of the documents proceeds in support of such
contentions. Hence Ext.P9 is prima facie unsustainable in
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the eye of law.
4. Accordingly writ petition is disposed of quashing
Ext.P9. The first respondent is directed to pass fresh
orders after affording an opportunity to the petitioner and
the owners of the individual apartments, to produce
necessary documents and also an opportunity or personal
hearing. The fresh assessment may be finalised as early as
possible at any rate within a period of two months from the
date of receipt of a copy of this judgment.
C.K.ABDUL REHIM
JUDGE
app/-