IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26070 of 2009(C)
1. SRI. K.M. MOHANDAS,
... Petitioner
2. JAYASREE MOHANDAS,
Vs
1. THE VILLAGE OFFICER, VILLAGE
... Respondent
2. THE TAHSILDAR,
3. THE REVENUE DIVISIONAL OFFICER,
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :24/09/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.26070 OF 2009
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Dated this the 24th day of September, 2009
J U D G M E N T
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1. Challenge in this writ petition is against Ext.P7 order
of assessment of Building Tax, which is confirmed in appeal
through Ext.P9 order. According to the petitioners they are the
owners of a property having an extent of 85 cents wherein two
distinct buildings are situated; one is a five-storied building
wherein a hotel is housed and another is an apartment complex
having car parking facility in the basement and ground plus
other 5 floors. Contention of the petitioner is that the apartment
complex is owned by 18 different persons to whom undivided
fractional share in the property has already been sold by the
petitioners and the complex is built through a builder
M/s.Associate Builders, by funds expended by the above said 18
persons. For the purpose of assessment under the provisions of
the Kerala Building Tax Act the petitioners have submitted
various documents pursuant to notice issued by the 2nd
respondent assessing authority. The originals of the sale deeds
and agreements were produced before the 2nd respondent. The
petitioners contended before the 2nd respondent that the building
W.P.(C).26070/09 2
in question is not liable to be assessed as a single unit. It was
further contended that the commercial portion and residential
portion of the building has to be assessed distinctly under
different rates. Yet another contention is that two floors of one
of the buildings is used for running an approved educational
institution and that portion need to have been exempted from
assessment. But the 2nd respondent assessed the entire building
as a single unit observing that in a conference held in the office
of the District Collector in the presence of the Land Revenue
Commissioner and Hon’ble Minister for Revenue, direction was
issued to the effect that assessment need be made separately
with respect to the distinct flats only if there are registered
agreements executed at the time of applying for building permit
itself and in other cases the building has to be assessed as a
single unit. Further finding is that the two blocks are part of the
same building and the assessing authority has treated the two
buildings claimed to be separate, as a single unit. It is also
stated that since certain parts of the building is used for
purposes other than residential, the entire plinth area of the
building except residential parts is to be assessed in the category
of other buildings. Accordingly a total amount of Rs.15,82,200/-
was assessed against the petitioners which was directed to be
paid in 4 equal quarterly installments.
W.P.(C).26070/09 3
2. Aggrieved by Ext.P7 order of assessment and Ext.P7(a)
Demand the petitioner filed statutory appeal before the 3rd
respondent. But the appeal was dismissed as per Ext.P9 order.
According to the petitioners none of the contentions raised in the
appeal memorandum has neither been adverted to nor
considered in its proper perspective. The appellate authority
had dismissed the appeal in a mechanical manner without
looking into the various contentions supported by documentary
evidence and materials. Hence it is contended that Ext.P9 is
totally unsustainable and is liable to be quashed.
3. Heard senior counsel Sri:K.P. Dandapani appearing on
behalf of the petitioners and Government Pleader on behalf of
the respondents. It is contended on behalf of the respondents
that the writ petition is not maintainable in view of the effective
alternate remedy of revision provided under the Act. In the
normal course, this Court would not have entertained a writ
petition challenging the order passed by the appellate authority,
unless the assessee had exhausted all statutory remedies,
including remedy by way of revision. But in this case on a
scanning of the impugned appellate order it is prima facie clear
and evident that the appellate authority has not fully adverted to
the contentions raised in the appeal and the reasoning for
rejecting the contentions are not at all legal and those
W.P.(C).26070/09 4
reasonings are patently opposed to the settled legal precedents.
Hence I am inclined to consider and evaluate merits of the
impugned order.
4. The main grounds of challenge against the order of
assessment can be summarised as follows:
(i). The two buildings situated in the property are
distinct and are liable to be assessed separately.
With respect to one of the buildings in which
residential apartments are situated each such
apartment belongs to separate persons and those
apartments are liable to be treated as separate
units, and each such assessment has to be made
against the individual owners. The plinth area of
the car park is included in the total plinth area
taken for assessment, which is to be exempted.
(ii). The 4th and 5th floors in the building are occupied
exclusively by educational institutions and
therefore the said area is liable to be exempted
from assessment. The plinth area calculated is
not correct because temporary sheds are also
reckoned.
5. But while disposing the appeal the 3rd respondent
observed that the car parking area cannot be exempted because
W.P.(C).26070/09 5
it does not belong to any single residential unit nor it is owned
by the residents of the flat. Separate assessment with respect to
distinct residential flats was denied on the ground that there is
no registered contract between the builder and the residents of
the flat with respect to the construction. Further it is observed
that the building is constructed as a commercial building. Hence
the subsequent use of the building cannot be taken into
consideration for the purpose of levying a Building Tax.
6. One of the main grounds for rejecting separate
assessment with respect to residential flat is that there is no
registered agreement executed between the owners of the flat
with the builder. The above stand is taken in view of the
guidelines prescribed by the Government through a circular.
This Court in the decision of Bavasons Constructions (P) Ltd.
Vs. State of Kerala (2007(3) KLT 101) has specifically held
that the assessment of Building Tax is a quasi-judicial function
and the assessing authority shall not be guided by instructions
issued by superior officers or by the Government. It is held that
circular issued by the Government that unregistered agreement
entered into between the builder and the allottee of the flat shall
be ignored, is illegal. In the said decision this Court prescribed
parameters as to how building containing residential apartments
has to be assessed and what are the materials to be ascertained
W.P.(C).26070/09 6
in order to permit assessment in the name of distinct allottees.
7. With respect to plinth area of garage a Division Bench
of this Court in Subhashchandrababu Vs. State of Kerala
(2006 (2) KLT 189) held that the plinth area of a garage of a
residential building shall not be taken into account for
determining the plinth area for the purpose of assessment. It is
also held that plinth area of any other erection or structure
appurtenant to a residential building used for storage of
firewood or any non-residential purpose shall not be taken into
account for determining plinth area of residential building.
8. So also in the decision in Jameela Vs. Tahsildar
(2003 (3) KLT 979) this Court held that if part of a building is
used for residential purpose and part as a commercial building
the separate parts has to be assessed under different tariffs in
accordance with the usage.
9. In the case at hand it is evident from the impugned
order that none of the above contentions has been properly
adverted to nor considered on the basis of the settled legal
position. Therefore it is to be held that the appellate authority
had failed in exercising its jurisdiction in a proper manner by
applying its mind to all the contentions raised in its proper
perspective.
10. Under the above circumstances I am of the opinion
W.P.(C).26070/09 7
that the matter need re-consideration at the hands of the
appellate authority. Hence Ext.P9 order of the appellate
authority is hereby set aside. The matter is remanded to the 3rd
respondent for fresh consideration and disposal. The 3rd
respondent shall pass fresh orders after affording opportunity to
the petitioners for personal hearing and for production of any
additional materials. Such order is to be issued as early as
possible, at any rate within a period of two months from the date
of receipt of a copy of this Judgment.
11. It is brought to my notice that the petitioners had
already remitted 1/4th of the total amount of tax covered under
the assessment in dispute. Therefore the respondents are
restrained from taking any steps for realisation of the balance
amount till fresh orders are passed by the appellate authority as
per the above directions.
Sd/-
C.K.ABDUL REHIM, JUDGE.
okb
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P.A. To Judge