High Court of KeralaSingle Judge2012-12-12Writ petition allowed; matter remanded for fres...

Biju Markose and Liji Soosan Biju and Thomas Kulanjipurakkal v. Tahsildar, Kothamangalam; Revenue Divisional Officer, Moovattupuzha; District Collector, Ernakulam; State of Kerala

Case / Petition Number:WP(C).No. 32906 of 2010 (K)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. K. Abdul Rehim
Judgment Date: 2012-12-12
Court Decision / Holding: Writ petition allowed. Ext.P1 assessment, confirmed through Ext.P3 and P5, are quashed. The matter is remanded back to the 3rd respondent for fresh disposal of the revision petition, with opportunity of personal hearing to the petitioners and after considering all records and materials produced. A decision shall be taken on the basis of settled legal principles enumerated through various decisions of this court, including M/s.Bavasons Constructions (P) Ltd. v. State of Kerala (2007(3) KLT 101). The revision petition shall be disposed of at the earliest, within three months from the date of receipt of a copy of this judgment; remitted tax, if any, will be appropriated based on the fresh decision.
Final Disposition: Writ petition allowed; matter remanded for fresh disposal by the revisional authority

Parties to the Case

Appellants / Petitioners

Biju Markose
Dr. Liji Soosan Biju
Thomas Kulanjipurakkal

Respondents

The Tahsildar, Kothamangalam, Building Tax Assessing Authority
The Revenue Divisional Officer, Moovattupuzha
The District Collector, Ernakulam District
State of Kerala, represented by Additional Chief Secretary to Government

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.K. Ramkumar

Counsels for Respondents

• Sri S Sudheesh Kumar, Sr. Government Pleader

Case Synopsis & Summary

The petitioners challenge Ext.P1 assessment of Building Tax finalised against the 1st petitioner, which was confirmed in appeal (Ext.P3) and in revision (Ext.P5). The case concerns a jointly owned building by the 1st and 2nd petitioners with construction of a first floor by the 3rd petitioner under registered assignment (Ext.P9). The petitioners contend that the first floor constitutes a distinct unit with its own electrical and water connections and that construction costs were met separately, resulting in two units; hence separate assessment should be permissible. The appellate authority had held that the internal staircase and an external iron staircase did not bring the building within the category under section 2(e) of the Building Tax Act. The revisional authority had required a construction agreement before the commencement of construction and evidence of separate costs, and the Government’s revision was dismissed on the ground that the State Government is not the revisional authority. On evaluating the materials, the learned Judge held that the two floors stand in distinct ownership and that the missing construction agreement is not a bar in the presence of a registered assignment; the matter warrants remand for fresh consideration. The court quashed Ext.P1 and remanded to the 3rd respondent, directing a personal hearing and disposal within three months, applying settled legal principles including Bavasons Constructions (P) Ltd. v. State of Kerala.

Provisions of Law Cited

Section 2(e) of the Building Tax ActSection 5A of the Building Tax Act

Legal Doctrines & Maxims

Ends of justice
Remand for fresh disposal in the interests of justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the property jointly owned by the 1st and 2nd petitioners comprises two floors, with the 1st floor assigned to the 3rd petitioner and constructed under an assignment. They argue that the 1st floor has separate electric and water connections, and construction costs were met separately, implying two distinct units for building tax purposes. They challenge the necessity of a prior construction agreement given the registered assignment (Ext.P9) and documentary records, and seek remand for fresh consideration with opportunity of hearing and application of settled legal principles, including Bavasons Constructions (P) Ltd. v. State of Kerala (2007(3) KLT 101).

Contentions of Respondents

The respondents contend that the building should be treated as a single unit due to internal and external stair arrangements and deny that separate assessment is warranted without a prior construction agreement. They maintain the appellate and revisional conclusions were correct and rely on Section 2(e) and related provisions for classification. They argue that the State Government is not the revisional authority, and that Ext.P1, Ext.P3, and Ext.P5 should stand.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
M/s Bavasons Constructions (P) Ltd. v. State of Kerala	2007(3) KLT 101	Positive	Cited as a source of settled legal principles guiding the remand and assessment framework; used to justify remand and application of principles by the revisional authority.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934** ## **WP(C).No. 32906 of 2010 (K)** **---------------------------** **PETITIONER(S) :** **---------------------** **1. BIJU MARKOSE, S/O.MARKOSE, AGED 42 YEARS, RESIDING AT KALLUNGAL HOUSE, A.K.G.BHAVAN ROAD, KOTHAMANGALAM PO.** **2. DR.LIJI SOOSAN BIJU, W/O.BIJU MARKOSE, AGED 40 YEARS, RESIDING AT KALLUNGAL HOUSE, A.K.G.BHAVAN ROAD, KOTHAMANGALAM PO.** **3. THOMAS KULANJIPURAKKAL, S/O.MATHAI, AGED 73 YEARS, RESIDING AT KULANJIPURAKKAL PO.THIRUVALLA.** **BY ADV. SRI.P.K.RAMKUMAR** **RESPONDENT(S) :** **------------------------** **1. THE TAHSILDAR, KOTHAMANGALAM, BUILDING TAX ASSESSING AUTHORITY, P.O.KOTHAMANGALAM - 686 691.** **2. THE REVENUE DIVISIONAL OFFICER, MOOVATTUPUZHA, RDO'S OFFICE, PO.MOOVATTUPUZHA - 686 661.** **3. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT,CIVIL STATION,PO.KAKKANAD ERNAKULAM-682 030.** **4. STATE OF KERALA, REP.BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001.** - **R1-R4 BY SRI.S SUDHEESH KUMAR, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Contd...2/-** **AMV** ## **: 2 :** ## **WP(C).No. 32906 of 2010 (K)** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** - **P1. : COPY OF THE ASSESSMENT ORDER DATED 17.02.2009 PASSED BY THE 1ST RESPONDENT.** - **P2. : COPY OF THE FORM X APPEAL FILED BEFORE RDO, MOOVATTUPUZHA. P3. : COPY OF THE ORDER PASSED IN P2 APPEAL DATED 16.10.2009 BY THE RDO.** - **P4. : COPY OF THE REVISION PETITION FILED BEFORE THE DISTRICT COLLECTOR DATED 17.10.2010.** - **P5. : COPY OF THE ORDER PASSED IN P4 BY DISTRICT COLLECTOR DATED 20.03.2010.** - **P6. : COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 28.05.2010.** - **P7. : COPY OF THE ORDER PASSED ON P6 BY ADDITIONAL CHIEF SECRETARY DATED 18.08.2010.** - **P8. : COPY OF THE FORM II FILED BY 1ST PETITIONER BEFORE 1ST RESPONDENT.** - **P9. : COPY OF THE REGISTERED ASSIGNMENT DEED NO.4297/07 OF KOTHAMANGALAM SUB REGISTRY.** - **P10. : COPY OF FORM II FILED BY 3RD PETITIONER BEFORE 1ST RESPONDENT.** - **P11. : COPY OF BUILDING PERMIT ISSUED TO 1ST PETITIONER. P12. : COPY OF BUILDING PERMIT ISSUED TO 3RD PETITIONER.** **Contd...3/-** **AMV** ## **: 3 :** |**P13.**|**:**|**COPY OF THE ELECTRICITY BILL FOR GROUND FLOOR ISSUED TO**| |---|---|---| |||**1ST PETITIONER.**| |**P14.**|**:**|**COPY OF THE ELECTRICITY BILL FOR GROUND FLOOR ISSUED TO**| |||**3RD PETITIONER.**| |**P15.**|**:**|**COPY OF THE RECEIPT OF WATER CHARGES ISSUED BY THE KERALA**| |||**WATER AUTHORITY TO THE 1ST PETITIONER.**| |**P16.**|**:**|**COPY OF THE SANCTION FOR WATER CONNECTION ISSUED BY THE**| |||**KERALA WATER AUTHORITY TO THE 3RD PETITIONER.**| |**P17.**|**:**|**COPY OF THE BILL ISSUED BY THE BUILDING CONTRACTOR TO THE**| |||**1ST PETITIONER DATED 01.08.2008.**| |**P18.**|**:**|**COPY OF THE BILL ISSUED BY THE BUILDING CONTRACTOR TO THE**| |||**3RD PETITIONER DATED 31.12.2008.**| |**P19.**|**:**|**COPY OF THE THREE PHOTOGRAPHS SHOWING THE STEEL STAIR**| |||**CASE FIXED AS ENTRANCE FROM GROUND FLOOR TO 1ST FLOOR.**| ## **RESPONDENTS EXHIBITS : NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **AMV** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 32906 of 2010 --------------------------------Dated this the 12th day of December, 2012 ## JUDGMENT The petitioners are challenging Ext.P1 assessment of Building Tax finalised against the 1[st] petitioner, which is confirmed in appeal and further in revision by virtue of Ext.P3 and P5 orders, respectively. 2. Case of the petitioners is that, in the property jointly owned by the 1[st] and 2[nd] petitioners, they have constructed a residential building having one floor. Thereafter, right to construct the first floor over the said building was assigned in favour of the 3[rd] petitioner through Ext.P9 registered assignment deed. On the basis of Ext.P9 the 3[rd] respondent took permit from the Municipality concerned for construction of the 1[st] floor and he had constructed the 1[st] floor by expending his own fund. It is further stated that the two floors of the building are being used as separate residences and separate electric connection and water connection is provided for the first floor in the name of the 3[rd] petitioner. But, inspite of objections raised against treating WP(C).32906 /2010 2 the building as a single unit, the 1[st] respondent assessed total plinth area at 364.52 square meters and imposed a tax liability of Rs.18,600/-, along with liability for payment of luxury tax under section 5A of the Act. 3. Appeal filed by the 1[st] petitioner was disposed of through Ext.P3 order issued by the 2[nd] respondent. The appellate authority found that since a stair case is provided inside the building, from the ground floor to the first floor and since the independent stair case provided to the first floor from outside is made out of iron and is temporary, the building will not fall within the category described under section 2(e) of the Act. The revision petition filed before the 3[rd] respondent was also disposed of holding that for availing the benefit of separate assessment there should have a construction agreement executed before commencement of the construction. It is further observed that the petitioner failed in producing necessary evidence to show that the cost of construction was met by both the persons separately. Eventhough the petitioner attempted further revision before the Government, the same was rejected through Ext.P7 WP(C).32906 /2010 3 observing that the State Government is not the revisional authority. 4. Heard; Government Pleader appearing on behalf of respondents. Documents produced in this writ petition will indicate that permission for construction of the first floor was obtained in the name of the 3[rd] petitioner, after execution of the assignment deed in favour of the 3[rd] petitioner. The petitioners have produced documents to show that the 1[st] floor of the building has got separate electric connection and water connection. They have also produced contract bills which will indicate that the cost of construction was met separately. On evaluation of these materials I am inclined to hold that separate floors of the building stands in distinct ownership and the construction was made by separate persons. Findings of the appellate authority that the building cannot be considered as separate because of the stair proved inside, cannot be sustained. So also the findings of the revisional authority that there should have a previous construction agreement is also unsustainable in view of the registered assignment deed executed. Therefore I WP(C).32906 /2010 4 am of the view that the matter has not been dealt with by the authorities concerned in its proper perspective. A remand of the matter to the revisional authority for a fresh consideration on the basis of the materials available, which will be produced by the petitioners, will be sufficient to meet the ends of justice. 5. Therefore the writ petition is allowed. Ext.P1 assessment, confirmed through Ext.P3 and P5 orders, are hereby quashed. The matter is remanded back to the 3[rd] respondent for a fresh disposal of the revision petition. The 3[rd] respondent will consider the matter afresh and will dispose of the revision petition after affording an opportunity of personal hearing to the petitioners and after taking note of all the records and materials which will be produced before him by the petitioners. A decision shall be taken on the basis of settled legal principles enumerated through various decisions of this court, including **M/s.Bavasons** ## **Constructions (P)Ltd. vs. State of Kerala (2007(3) KLT** **101).** The revision petition shall be disposed by the 3[rd] respondent at the earliest possible, at any rate within three months from the date of receipt of a copy of this judgment. WP(C).32906 /2010 5 6. Needless to say that the amount of tax, if any already remitted, will be appropriated in accordance with the decision which will be taken by the 3[rd] respondent in the matter. C.K.ABDUL REHIM, JUDGE pmn/ WP(C).32906 /2010 6