IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19874 of 2005(N)
1. V.K.SREEKUMARI KUNJAMMA,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. THE REVENUE DIVISIONAL OFFICER,
3. THE TAHSILDAR,
For Petitioner :SRI.P.M.MOHAMMED SHIRAZ
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
Dated :28/05/2008
O R D E R
P.R.RAMAN, J.
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W.P.(C) No.19874 OF 2005
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Dated this the 28th day of May, 2008
J U D G M E N T
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Petitioner constructed a twin house. He submitted a
return as per the provisions of the Kerala Building Tax Act
treating the two buildings as separate and independent. Both
the building were numbered by the local authority separately.
According to him, each building has got an independent
existence and to be enjoyed independently. Access to the two
buildings are separate. Exit and entry to the buildings are
separate. Both have got separate electricity connection and
water connection. Thus the enjoyment of one does not depend
upon the other. But the authority treated both the building as a
single unit for the purpose of computing the tax under the
Kerala Building Tax Act, 1975. In other words, the area
occupied by both the buildings together were taken as a single
unit for the purpose of assessment. There was an appeal
against the assessment order which is earlier allowed by way of
a remand to the assessing authority. Thereafter, the same view
is taken by the assessing officer by Ext.P1 order. Exts.P2, P3
W.P.(C)19874/2005 2
and P4 are demand notices by the 3rd respondent. Though the
petitioner preferred an appeal on the question of clubbing of two
buildings for the purpose of assessment, the same was decided
against the petitioner confirming the order of the assessing
officer. The revisional authority has also confirmed the same.
Hence this writ petition.
2. Ext.P5 order is the final order passed by the authority
rejected the contention of the petitioner. The only reason for
treating the two buildings together as per Ext.P6 is that both the
buildings have got a common septic tank with one soakpit and no
other distinct features were shown for treating the two buildings
as one unit. Petitioner contends that this approach by the
authority is totally against the accepted principle as to how the
two buildings has to be treated whether as a single unit or a
different unit. According to him, the mere fact that the two
buildings are owned by the same person by itself is no reason to
hold that the area occupied by two buildings could be clubbed
together for the purpose of assessment and treat the same as a
single unit. The mere fact that two buildings are situated
adjacent with the common wall in between also does not make
W.P.(C)19874/2005 3
any difference so long as such constructions are permissible
under the Kerala Building Rules. If, two neighboring owners
agreed for construction of a building that there could be a
common wall in between and if there is no such prohibition
under the Kerala Building Rules for the purpose of construction
of such type of buildings as agreed to by them, then there is no
reason to hold that the two buildings are to be treated as one
building, especially, since the Apartment Ownership Act has
already come into force in the State of Kerala, different
apartments one above the other would still be owned and
possessed by different persons. Therefore, the criteria to be
adopted in the matter of treating two buildings as one unit is to
see whether both the buildings could separately be enjoyed;
whether there were different electricity connection; whether one
building could be enjoyed without entering through the other
building, in other words whether two buildings could
independently exist in the matter of enjoyment of same is a
relevant factor. As per the decision of this Court in Lalitha v.
State of Kerala [1994(2) KLT 66], the learned Judge held after
considering the relevant portion of Kerala Building Tax Act that
there is no provision in the Act for clubbing together various
W.P.(C)19874/2005 4
buildings constructed by the same owner which are otherwise
separate either in the same financial year or otherwise. Two
separate units may constitute one building, if they are built for
the purpose of one or the other, and are functionally integrated.
For example, a house with a garage, out-house for servants,
latrines, cow-shed and so on forms an integral unit and has to be
assessed as such. A hotel complex which may consist of
numerous buildings like, cottages, kitchen complex, shopping
arcade and so on or a factory complex with its appendages may
constitute one unit for the purpose of assessment. But when
there is no such inherent connection between the buildings,
when they do not exist for each other and are otherwise
separate, there is no provision anywhere in the Act which
requires such separate entities clubbed together into one or
which deems them to be one building. Therefore, it was held
that merely because two buildings are owned by the same person
there is no criterion to treat the two buildings as one unit. The
question as to whether the two buildings in question could be
clubbed together therefore depends upon the facts and
circumstances of each case. In the present case, the only
distinction drawn by the revisional authority is that there is no
W.P.(C)19874/2005 5
separate septic tank. No other distinct feature has been shown.
Learned Government Pleader however pointed out that there is
only one approved building plan for the two buildings. But this
argument does not appeal to me. A huge building with several
apartments, the builder gives only one plan for approval
consisting of all the independent flats and they are constructed
based on the agreement between the intending buyer and the
builder. It has since been held by the Division Bench of this
Court that if the construction is made by the builder using the
funds with separate funds provided by the intending buyer then
such flats are to be treated as separate units. Therefore the fact
that a combined plan is given is also not a decessive test by itself
to treat the buildings as one unit. In the circumstances, Ext.P6
is quashed and the matter is remanded to the revisional
authority for fresh consideration in accordance with law after
hearing the petitioner. The interim stay granted by this Court
will continue till fresh orders are passed by the revisional
authority
(P.R.RAMAN, JUDGE)
ps