A. Mathew v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 28TH DAY OF NOVEMBER 2014/7TH AGRAHAYANA, 1936 WP(C).No. 24524 of 2009 (I) ----------------------- PETITIONER(S): ------------ A.V.MATHEW, VARAMBINAKATHU HOUSE, PLOT NO.6O, KUMARANASAN NAGAR, KADAVANTHRA ERNAKULAM - 682020. BY ADVS.SRI.BECHU KURIAN THOMAS SMT.INDU SUSAN JACOB SMT.NISHA JOHN RESPONDENT(S): ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, MINI CIVIL STATION FORT KOCHI. 4. THE TAHSILDAR, KANYANNUR, ERNAKULAM. BY GOVT. PLEADER SMT. LILLY K.T. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24524 of 2009 (I) ## APPENDIX ## PETITIONER'S EXTS: Ext.P1: True copy of the loan fixation order issued by the KHSB Ext.P1(a): True copy of the loan re-fixation order dated 28-11-1997 issued by the KHSB Ext.P2: True copy of the building permit dated 2-4-1996 Ext.P2(a): True copy of the occupancy certificate issued by the Corporation of Cochin dated 26-6-1997 Ext. P2(b): True copy of Property Tax receipt paid by Aleyamma Mathew Ext.P3: True copy of the consent dated 27-12-2005 Ext.P4: True copy of the building permit dated 19-1-2006 Ext.P4(a): True copy of the occupancy certificate dated29-52007 Ext.P4(b): True copy of the Property Tax Receipt dated 12-92007 Ext.P4(c): True copy of the general accounts as relating to the Petitioner loan Ext.P5: true copy of the electricity bill issued to the petitioner dated 2-2-2008 Ext.P5(a): True copy of the electricity bill issued to the petitioner's wife dated 22-12-2007 Ext. P6: True copy of the lease agreement dated 25-7-2007 Ext.P7: True copy of the assessment notice dated 15-12-2007 issued by the 3[rd] respondent WP(C).No. 24524 of 2009 (I) Ext.P8: true copy of the Sec. 5A proceedings before the 3[rd] respondent dated 15-12-2007 Ext.P9: true copy of the appellate order dated 25-08-2008 issued by the 2[nd] respondent. Ext.P10: True copy of the judgment dated 23-10-2008 in W.P. C. 31211/2008 Ext.P11: True copy of the bills produced as relating to the petitioner Ext.P11(a): True copy of the bills produced as relating to the petitioner's wife Ext.P12: True copy of the revisional order dated 18-5-2009 issued. ## **A.K.JAYASANKARAN NAMBIAR, J.** ## **--------------------------------W.P. C. NO. 24524 of 2009 - I ----------------------------------Dated this the 28[th] day of November, 2014** ## **JUDGMENT** The petitioner and his wife are co-owners of 9.200 cents of land in Sy. No. 49/1 and 481/2 of Elamkulam Village. In 1997, the petitioners wife had entered into an agreement with the Kerala State Housing Board to construct a single storied building on the property. Pursuant to a loan obtained by her from the Housing Board, she proceeded to construct the ground floor of the building. Ext.P2 is the building permit that was received by the petitioner's wife for constructing the said ground floor. Ext.P2 (a) is the occupancy certificate that was issued to her subsequent to the construction. Ext. P2 (b) is the property tax receipt evidencing the fact that she had remitted the property tax in respect of the ground floor. The plinth area of the ground floor is 153 Sq.metres. It is the case of the petitioner that in 2005, he had obtained consent from his wife to construct the first floor on the same building. On obtaining the said consent, he approached the Municipal Authorities for a building W.P. C. NO. 24524 of 2009 - I 2 permit to effect the construction, and Ext.P4 is the building permit that was issued to him. After constructing the first floor, which covered a plinth area of 170.60 Sq. mtrs, the petitioner obtained the occupancy certificate in respect of the first floor which is produced as Ext.P4 (a). Ext.P4 (b) is the property tax receipt evidencing payment of property tax by the petitioner in respect of the first floor of the building. It is also the case of the petitioner that the ground floor and the first floor have separate building numbers, separate electricity and water connections and they have been treated as separate building for all other purposes under the Kerala Municipalities Act. It is also submitted that the first floor of the building has since been let out to a tenant. By Ext.P7 order dated 15-12-2007, the building comprising of the ground floor and the first floor was assessed to building tax by the 3[rd] respondent. Ext.P7 (a) is the demand notice issued pursuant thereto. While completing the assessment to building tax, the 3[rd] respondent computed the total plinth area of the building as 367.70 Sq. mtr. which is the total plinth area covered by the ground floor and the first floor. Thereafter, on noticing that the plinth area exceeded the extent of 278.7 Sq.mtrs, the 3[rd] respondent proceeded to levy luxury tax in terms of Sec. 5A of the Kerala W.P. C. NO. 24524 of 2009 - I 3 Building Tax Act (hereinafter referred to as “the Act”). Ext.P8 is the order levying luxury tax. Aggrieved by Exts.P7 and P8 orders, the petitioner filed an appeal before the 3[rd] respondent Revenue Divisional Officer. By Ext.P9 order dated 30-09-2008, the appeals were rejected by the 3[rd] respondent on the ground that the law did not recognise separate ownership of a building between the husband and wife. It was also found that the petitioner had not produced any evidence to substantiate his contention with regard to a separate assessment of the building in terms of Explanation 2 to Sec. 2 (e) of the Act. Aggrieved by Ext.P9 order of the 3[rd] respondent, the petitioner filed a Revision Petition before the District Collector/the 2[nd] respondent. By Ext.P12 order dated 18-05-2009, however, the Revision Petition was also dismissed stating the same reason that was given by the 3[rd] respondent in the appellate order. In the Writ Petition, Exts.P7, P7(a), P8 and P12 are impugned. 2. A counter affidavit has been filed on behalf of the 4[th] respondent wherein the sequence of events leading to the passing of the impugned orders, is narrated. It is, in particular, pointed out that the petitioner had failed to prove that he and his wife had W.P. C. NO. 24524 of 2009 - I 4 absolute title over the portion of the building independently claimed by them and that they have independent rights over the said portion to the exclusion of the other. It is also pointed out that the petitioner and his wife have no saleable rights over such portions claimed by them, as the building and land is in co-ownership of the petitioner and his wife. It is, therefore, contended that it was only on account of the lack of any document to substantiate their case that the 2[nd] and 3[rd] respondents were constrained to pass orders assessing the building as a single unit for the purpose of tax. 3. I heard Sri. Paul Jacob the learned counsel appearing for the petitioner and Smt. Lilly, learned Government Pleader appearing on behalf respondents. 4. On a consideration of the facts and circumstances of the case and the submissions across the Bar, I find that Exts.P7, P9 and P12 orders suffer from a patent non-application of mind and that, the authorities while passing the said orders did not advert to the aspects that were relevant for a consideration of the issue. As per the Scheme of the Act, the levy of tax is on a building that is W.P. C. NO. 24524 of 2009 - I 5 constructed after the cut-off date specified in the Act. While under normal circumstances, the building as a whole would have to be treated as a single unit for the purposes of tax, an exception is carved out in cases covered by Explanation 2 to Section 2 (e) of the Act. As per the said explanation where the building consists of different apartments or flats, owned by different persons and cost of construction of the building was met by all such persons jointly, each such apartments or flats shall be deemed to be a separate building. It is apparent from a reading of the Explanation, therefore, that for the building to be assessed as separate units, it must be shown that: - 1) The building consists of different apartments or flats - 2) The said apartments or flats are owned by different persons - 3) That the cost of construction of the building was met by all such persons jointly. 5. On the facts of the case at hand, it has to be seen whether the ground floor and first floor of the building could be seen as separate apartments or flats owned by separate persons. In my view, it is incumbent upon the 2[nd] respondent/revisional authority W.P. C. NO. 24524 of 2009 - I 6 to go into these matters and understand the Scheme of the Kerala Building Tax Act, 1975 as noted above, while taking a decision with regard to the manner in which the assessment of the building has to be done. In that process, he would have to consider the documents produced by the petitioners to establish their ownership over the land and the building, and also such documents as would indicate that the buildings are under separate ownership, and other documents which would show that the cost of construction of the building was also met by them jointly. The 2[nd] respondent must also necessarily take note of the decisions of this Court in **Nelson Rozario v. State of Kerala - 2013 (1) KLT 573, Varghese v. State of Kerala - 2013 (2) KLT 831, Natarajan v. State of Kerala - 2013 (4)KLT 364, Pavan Kumar v. State of Kerala - 2012 (2) KLT 889** and **Tahsildar and Another v. Soman Peter - ILR 2014 (4) Kerala 327** . 6. In order to enable the 2[nd] respondent to take a fresh decision in the matter, I quash Exts. P7, P7 (a) ,P8, P9 and P12 and direct the 2[nd] respondent to consider the matter afresh after affording the petitioner an opportunity of being heard and pass orders in the matter within three months from the date of receipt of a copy of this W.P. C. NO. 24524 of 2009 - I 7 judgment. The 2[nd] respondent shall, while passing orders in the matter, adhere specifically to the documents produced by the petitioners in support of their contentions and also give reasons for the decision taken in the matter. Considering the nature of the claim put forward by the petitioner it would be desirable that the 2[nd] respondent considers the documents produced by the petitioner and his wife in support of the contention that the ground floor and the first floor of the building are under separate ownership of the petitioner and his wife. This Writ Petition is disposed of as above. ## Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** ## **ani/1/12/** ## **/true copy/** ## **P.S. to Judge**