IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7443 of 2005(J)
1. GEEVARGHESE, AGED 48, S/O. VARKEY,
... Petitioner
2. JOHNY, S/O. MATHEW, AGED 45,
Vs
1. DISTRICT COLLECTOR, ERNAKULAM,
... Respondent
2. REVENUE DIVISIONAL OFFICER,
3. TAHSILDAR, KUNNATHUNADU TALUK,
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :28/07/2008
O R D E R
T.R.RAMACHANDRAN NAIR, J.
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W.P.(C). No.7443/2005-J
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Dated this the 28th day of July, 2008
J U D G M E N T
In this writ petition, the petitioners challenge the order of
assessment which stands confirmed by the Revenue Divisional Officer
as per Ext.P10. The short facts leading to the dispute are the following:-
2. The first petitioner is the owner of 33.20 ares of property in
Re-survey No.115/7 of Block No.13 of Vengoor Village. By Ext.P1 sale
deed dated 23/04/1997 he assigned one half right over the 10 cents of
property in Survey No.111/11 (old number) in favour of the second
petitioner, wherein the the first petitioner had already started
construction of the building together with the car porch in the ground
floor and staircase on the northern side. Thus, the second petitioner
obtained undivided one half right over the 10 cents of property and the
car porch in the ground floor and the northern stair case and the right
to construct the first floor of the building over the ground floor which
was under construction by the first petitioner. It is submitted that both
the floors were separately constructed and the first petitioner is in
occupation of the ground floor portion of the building except the car
porch and the staircase; and the car porch, staircase and the first floor
W.P.(C).NO.7443/2005-J
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belongs to the second petitioner. The portions of the building have been
separately numbered by the Panchayat, viz. the portion belonging to the
first petitioner is numbered as 8/74B and that of the second petitioner is
numbered as 8/74C. This is evidenced by Ext.P2 and P3. It is also
averred that the electricity connection is also separate with different
consumer numbers, namely, 6307 and 9223 respectively. It is also to be
noticed that the Panchayat has assessed building tax separately for
these two separate portions which is evidenced by Exts.P4 and P5.
3. They submitted separate returns in connection with the
assessment of the building tax but when the assessment was finalised,
the entire building was considered as a single unit. This is evidenced by
Exts.P6 and P7. They challenged the same in W.P.(C).No.7642/2004
wherein the petitioners were directed to file an appeal before the
Revenue Divisional Officer. Accordingly, an appeal was filed which was
disposed of by Ext.P10.
4. Learned counsel for the petitioners submitted that this
building cannot be assessed as a single unit in view of the independent
ownership, possession as well as other facts like assessment of property
tax separately by the Panchayat, separate electricity connection and the
like. It is submitted that the authority has not bestowed attention to the
principles laid down by this Court in similar cases. There is an earlier
decision in Anto v.Municipal Commissioner [1994 (1) KLT 790]
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followed by certain subsequent decisions and also the recent decision of
a learned Single Judge reported in Lisha Babu v. District Collector
[2007 (4) KLT 648].
5. At the time of admission of this writ petition, this Court had
directed the Tahsildar to make a special inspection and file a statement
and, accordingly, a statement has been field. A reading of the statement
shows that the building is a three storied concrete building and the
ground floor consists of 11 rooms, one kitchen and two car porches, two
sit outs, three latrines and two staircase rooms. The first floor consists
of eight rooms, one kitchen, one sit out, two latrines and one staircase
room. The second floor consists of one room and staircase room. It is
also stated that the second petitioner is residing in the first floor of the
building with his family. Further in paragraph ‘6’ it is noted that the
whole buildings has only one electric connection bearing Consumer
No.6307. The learned counsel for the petitioners disputes this fact and
it is submitted that there are two different consumer numbers viz. 6307
and 9223 respectively.
6. If two floors have been separately constructed by utilising
funds separately and if they are being owned, possessed, occupied and
enjoyed by the petitioners differently, it cannot be assessed as a single
unit going by the principles stated by this Court in the decisions noticed
above. While dealing with a similar question, this Court in Lisha Babu’s
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case cited above observed in paragraph ‘8’ that the right to build over
the first floor is essentially the right to title to the roof top of the existing
building which is “immovable property” for the purpose of the Transfer
of Property Act, 1882, and the third petitioner has thereby obtained the
exclusive title to the immovable property as described in that document.
Similar is the question raised herein also. Since the entire aspects have
not been considered in the proper legal perspective, I quash Ext.P10.
The Revenue Divisional Officer will re-consider the appeal after
affording a reasonable opportunity to the petitioners for hearing and
allowing them an opportunity to produce all materials that they are
relying upon in support of the appeal. Proceedings for recovery will be
kept in abeyance till fresh orders are passed as directed above.
The writ petition is disposed of as above. No costs.
T.R.RAMACHANDRAN NAIR,
Judge
ms