Bobby George Thaliath and others v. Tahsildar, Aluva and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 WP(C).No. 15637 of 2008(J) ----------------------------------------------- PETITIONERS: -------------------- 1. BOBBY GEORGE THALIATH, S/O.LATE T.L.VARKEY, THALIATH HOUSE, ANTHRAPER GARDEN, TEMPLE ROAD, ALUVA-683 101. 2. JOEMON THALIATH, S/O.LATE T.L.VARKEY, THALIATH HOUSE, PALACE ROAD, ALUVA-683 101. 3. T.L.JACOB THALIATH, - 23, K.K.P.NAGAR, U.C.COLLEGE P.O., ALUVA. 4. IMAM SALIH, S/O.LATE ABOOBACKER, A1, 2C, GARDEN COURT APARTMENTS, ALINCHODU, EDAPPALLY P.O., KOCHI-682 024. BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.S.AMINA RESPONDENTS: ----------------------- 1. TAHSILDAR, ALUVA. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. DEPUTY TAHSILDAR (RR), ALUVA. 4. K.J.UBALD JOSEPH, SERENE VILLA, HOUSE NO.IV/27, THOTTAKKATTUKARA, ALUVA. 5. RAJI K.KARTHA, KRISHNA KRIPA, - 3/209, GCDA ROAD, ALUVA-683 101. ## **WP(C). NO.15637/08 J** 6. K.J.MONY, W/O.K.JOSEPH, SERENE VILLA, HOUSE NO.IV/27, THOTTAKKATTUKARA. 7. ROJEN ANTONY, VAZHALIL HOUSE, CHELAMATTAM KARA, KUNATHUNAD TALUK. 8. BALAGOPALA MENON, C-2 APARTMENT, ST.VINCENT STREET, KURIYACHIRA, CHIYARAM VILLAGE, TRICHUR-680 006. 9. PRAMEELA MENON, W/O.BALAGOPALA MENON, C-2 APARTMENT, ST.VINCENT STREET, KURIYACHIRA, CHIYARAM VILLAGE, TRICHUR-680 006. 10. P.RAJASHEKHARAN, SAROJINI, KALLAPADAM DESOM, PAZHUYANNOR VILLA, TRICHUR. 11. V.K.SAGEER, MAKKAR MANZIL, HOUSE NO.10/174, WEST KADUNGALORE P.O., ALUVA-683 102. 12. SHALIK YOOSUF SULTHAN, PUTHENPURAYIL, WARD NO.X/391, THURUTH, ALUVA. 13. MUTUAL TRADING ENTERPRISES (P) LTD., ROYAL SPORT COMPLEX, KODUNGALORE. 14. AJI FAIZY, VALAMKOTTIL (H), EKM ROAD-ALUVA. 15. ABDUL FAIZY, VALAMKOTTIL (H), EKM ROAD, ALUVA. 16. LATHA UNNIKRISHNAN, W/O.V.K.UNNIKRISHNAN, WARD NO.14, CHANGAMPUZHA NAGAR, THAIKKATTUKARA. 17. K.M.ABOOBACKER, 5/C SHARON NEST, RESIDENTIAL APARTMENT, KAKKANAD-682 030. 18. SASINATH BABU.K.K., KALAPURACKAL (H), NO.XII/398, CANAL ROAD, UC COLLGE P.O., ALUVA-2. 19. ALTHAF JAHANGIR, S/O.JAHANGIR, MACKAR MANZIL, THYNOTHIL LANE, ALUVA. ## **W.P.(C). NO.15637/08 J** 20. NISHI JAHANGIR, W/O.JAHANGIR, MACKAR MANZIL, THYNOTHIL LANE, ALUVA, KADUNGALORE, ALUVA. 21. N.JAHANGIR, MACKAR MANZIL, THYNOTHIL LANE, ALUVA-683 101. 22. JAVED K. .HASSAN, MACKAR MANZIL, THYNOTHIL LANE, ALUVA-683 101. 23. M/S.NET WORKS SYSTEMS, TECHNO LOGICS (P) LTD., R.P., A-3, PERIYAR, TECHNOPARK CAMPUS, TRIVANDRUM. 24. ROSEMOL JOSEPH, VILAKKUNNEL (H), ASSARIKADAVU ROAD, PULINCHODU, ALUVA-683 101. 25. POSITIVE COMBINES, ROYALE PLAZA, BANK JN, ALUVA. 26. V.M.HARIS, VALIYAVEETTIL, NJALAKAM KARA, THRIKKAKARA. 27. DEPHANE BIJU, HOUSE NO.VII/315, KOZHYPILLY LANE, KOTHAMANGALAM. 28. T.MOHANACHANDRAN, NO.VI/446, MANJALIPARAMBIL, CHOWARA P.O. 29. DENNIS BENNY, THOOMKUZHY (H), NAZARETH, ALUVA-683 101. 30. BAIJU MOHAMMED, KORAMANGALATH, XV/380, KEEZHUMAD. 31. MOHAMMED MAKKAR, AMBAKUDY, NEES VITLE, KUDUPLORE, ALUVA. 32. K.V.ANIL KUMAR, KODATHHAM, MEDIVANNOR, CHOWARA. 33. BADUSHA UMMER, SHAKKELA MANZIL, SARITH ADUVASSERRY. 34. MOHAMMED KUNJIMAKKAR, AMBAKUDY HOUSE, KADUNGALORE, ALUVA. 35. MOHAMMED SAJID, MANAPPAT, DOOR NO. 21139, ERIYAD, KODUNGALORE. ## **W.P.(C). NO.15637/08** 36. M.NAZEERA, W/O.DR.P.K.NAZIRUDEEN, NO.K.P.111/16, UC COLLEGE P.O., ALUVA. 37. CHECHAMMA BOBY, W/O.BOBY GEORGE THALIATH, THALIATH HOUSE, TEMPLE ROAD, ALUVA. 38. N.M.ABDUL SHUKKOOR, NADUVILAKATHU HOUSE, EDAVANAKAD. 39. LAIJU JOHN, THALAKALIL HOUSE, CHALAKAL, ALUVA. 40. SAIJU JOHN, THALAKALIL HOUSE, CHALAKAL, ALUVA. 41. DR.REYMY RAHIMAN, W/O.A.V.FAIZEL, DOOR NO. 7/329, THIRURANGADI, MALAPPURAM DISTRICT. 42. V.A.ALI SAHEER, VALEMKOLLIL HOUSE, EKM ROAD, ALUVA. 43. HAMJITH ALI, VALEMKOLLIL HOUSE, EKM ROAD, ALUVA. 44. AJITH KUMAR.S., 42/143, SREEVALSAN, MANNARKAD, TRIVANDRUM. 45. N.M.NADERSHA, NADUVILU PARAMBIL HOUSE, VELIYATHUNADU KARA, ALUVA. 46. V.A.ALISHAGEER, VALEMKOLLIL HOUSE, EKM ROAD, ALUVA. 47. SAID MOHAMED ALI, SHIBB THANGAL, KODAPPANGAL, PALAKKAD. 48. P.RAJASEKHARAN, SAROJINI, PAZHYYANNOR VILLAGE, KALLEPADAM DESOM, TRICHUR. 49. V.K.ABDUL SALAM, VADAKKEPARAMBIL HOUSE, UC COLLEGE, ALUVA. 50. ABDULLA KUTTY, CHARAVUPARAMBIL, KADUNGALLORE, ALUVA. 51. MURLI THIRUMANI, KOZHIKKATTIL ILLATH HOUSE, KAPPRASSERRY, NEDUMBASSERY P.O. ## **W.P.(C). NO.15637/08 J** 52. MOHAMMED MAKKAR, AMBAKUDDY HOUSE, ELOOR KARA, ALUVA. ## 53. STALION INTERNATIONAL, ALUVA CHAPTER, REPRESENTED BY ITS SECRETARY, DOOR NO.19/115, ROYAL PLAZA, BANK JUNCTION, ALUVA. 54. SHOBA KRISHNAN, AMBADY HOUSE, ELOORKARA, ALUVA. 55. K.E.IBRAHIMKUTTY, KARIMATTATH HOUSE, MADRASSA LANE, ALUVA. 56. SAHEERSHA.K.A., PAZHAYAPARAMBIL HOUSE, THOTTUMUGHAM, ALUVA. 57. SHAJI.K.M, KORAMAKATTIL HOUSE, ASHOKAPURAM, ALUVA. 58. K.SHIVASHANKARAN, LAKSHMI NIVAS, KAPPRASSERY. 59. K.P.MURALIDHARAN, THERIAL VEEDU, KAPPRASSERY, NEDUMBASSERY. 60. REGHUNATH, NETTUKATTU HOUSE, THOTTAKATTUKARA, ALUVA. 61. RAJEEV SREEKUMAR.V.P., PUNNELIL (H), MANJAPRA. 62. JESSY IBRAHIMKUTTY, KARIKUTTATH (H), MADRASSA LANE, ALUVA. 63. V.V.GEORGE, VALIYAVEETTIL (H), NO.SII/83, PRIYA LANE, ALUVA. 64. VARGHESE PALATTY, PALATTY (H), DOOR NO. VII/438, PUTHENVELIKKARA. 65. ABDUL AZEESE, PUNNALATH (H), ERIAD P.O., KODUNGALLUR. ## 66. SREE NARAYANA SAMITHY ASRAM, ALUVA. ## **W.P.(C). NO.15637/08 J** 67. MERCY ROY, THALIATH HOUSE, VALIATHUNADU ROAD, UC COLLGE, ALUVA. 68. K.E.IBRAHIMKUTTY, KARIMATTATH (H), MADRASSA LANE, ALUVA. 69. MOHAN GEORGE, KOTTAKKAL KIZHEKKETHIL, DOOR NO.XXXIII/477, CARBORANDUM ROAD, KALAMASSERY. 70. ANTHONY THOMAS, JEERAKATH (H), V.P.M.ROAD, EDAPPALLY. 71. V.D.RAJAN, RAJ BHAVAN, 49/XIV SUB JAIL, ALUVA. 72. ARJUN MENON, KARTHIKA N.3, ARCHANA APARTMENTS, CHALAPURAM P.O., KOZHIKODE. 73. V.K.IBRAHIMKUTTY, VALIYAKATHKAIPILLY, KOOLIMUTTOM P.O., CHAVAKKAD. 74. T.K.ABDULLA, CHARLIKARA LANE, ANZAR MANZIL, ALUVA. 75. V.G.DOMINIC, VADAEKAL (H), MUTHIRAPADAM, THAIKKATTUKARA, ALUVA. 76. RAMA DEVI, W/O.UNNIKRISHNAN, PUTHENPURAKKAL (H), THIRUVALLORE, ALANGAD. 77. ABDUL RAHIMAN, PERINGHAT (H), THOTTUMUGHAM, ALUVA. 78. P.A.MOHAMMED NASSER, PUNNALATH (H), ERUMATHALA. 79. ABDUL SHUKKOOR, CHULLIPARAMBIL HOUSE, EDAVANAKKAD-682 502. 80. RIJU PAPPACHAN, PATHIKULENGARA HOUSE, NEAR POWER HOUSE, ALUVA. 81. SHAM MUHEYUDDIN, W/O.M.A.MUHEYUDDIN, S.S.IMPEX, HASIL JUMA MASJID ROAD, PANAYIKULAM, N.PARUR. ## **W.P.(C). NO.15637/08 J** 82. ZEENATH, W/O.AMEER ALI, CHENAKKARA HOUSE, KODUKUTHUMALA, NAD, ALUVA. 83. T.P.VARGHESE, THAKANATH HOUSE, THOTTAKKATTUKARA, ALUVA. 84. RAMLA RAHIMAN, DOOR NO.7/329, CHIRAKUZHI TIRURANGADI P.O., MALAPPURAM. 85. MARY KUTTY JACOB, NASEEM MANZIL, MARTHOMA CHURCH ROAD, U.C.COLLEGE P.O., ALUVA-683 102. 86. JASMIN HARIS, PUNNILATH, MERRA 96, COCHIN-24. 87. FOUZIA MOHAMMED, PUNNILATH, MERRA 96, COCHIN-24. 88. ROY THALIATH, THALIATH HOUSE, VALIYATHUNADU ROAD, U.C.COLLEGE ROAD, ALUVA-683 102. R1 TO R3 BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. M. JOSEPH, J.** **-------------------------------------W.P.C. NO. 15637 OF 2008 J -------------------------------------Dated this the 17th June, 2008** ## **JUDGMENT** Petitioners challenge Exts.P11, P11(a) and P11(b) and seek a declaration that the building in question "Royal Plaza" is assessable to building tax only in the names of the distinct owners of the built up area. A mandamus is also sought forbearing the respondents from levying building tax from the petitioners in respect of the building in question. 2. Briefly put, the case of the petitioners is as follows: Petitioners' property measuring 48.75 cents of land originally belonged to United Wood and Metal Industries, initially constituted by Partners - since deceased T.l. Varkey and T.L. Jacob. At present, petitioners are the Partners of the said Firm. Ext.P1 is a permit obtained by late T.L. Varkey and T.L. Jacob. Thereafter, the land owners entered into agreement with a Company by name "Build N Style Projects Pvt. Ltd." as per Ext.P2. It is the further case that respondents 4 to 88 _**WPC.15637/08**_ _**2**_ approached the land owners for assignment of the undivided shares and the builders for construction of their required built up area in the proposed building complex. Ext.P3 is produced as one of the construction agreement. Ext.P4 is the occupancy certificate issued by the Aluva Municipality. Ext.P5 is the notice issued by the first respondent Tahsildar to the petitioners. Ext.P6 is the reply given by deceased T.L. Varkey stating that the construction has been made as required by the intending buyers on contract basis with the fund being provided by them and further stating that they alone are the owners of the respective portions of the building. Exts.P7 and P7(a) are the notice and covering letter of the builder producing the approved plans and the occupancy certificate. The first respondent Tahsildar was apprised, showing copies of all the documents to establish the ingredients contained in Explanation 2 to Section 2 (e) of the Kerala Building Tax Act. Exts.P8 and P8(a) are the assessment order and consequential demand notice issued to T.L. Varkey and T.L. Jacob requiring them to pay the building _**WPC.15637/08**_ _**3**_ tax assessed in four instalments. Deceased T.L. Varkey and T.L. Jacob filed OP no.10590/01 before this Court challenging Exts.P8 and P8(a) which culminated in Ext.P10 Judgment. It is thereafter that Exts.P11 assessment order and P11(a) and P11(b) have been issued. 3. I heard the learned counsel for the petitioners and the learned Government Pleader. In the Order Ext.P11(a), which is a reasoned order, in support of the assessment, it is stated that on the basis of the directions contained in the Judgment of the Honourable High Court, the party has furnished a list of 92 persons said to be the respective owners of the building on 1.2.2008. Notices were issued to all the peresons to be present before the Tahsildar and produce relevant records. Out of the 92, only 30 persons appeared. It is thereafter stated as follows: _"The parties who appeared before the Tahsildar argued that they have purchased the undivided share of the property only after the construction of the building and that no cost of construction was met by them. Tjhey further stated that the building owner alone constructed the_ _**WPC.15637/08**_ _**4**_ _building within his own contribution and that they have purchased the built-up area of the building and therefore they are not liable to pay any tax under the Kerala Building Tax Act. Moreover, the plinth area of the shops owned by the majority of the said respective owners is below 50 M.Sq. Therefore, they will have to be exempted from charging building tax._ _According to Explanation 2 to Section 2(e) of the Act, where a building consists of different apartments or flats owned by different persons and the 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. In the instant case, the building owner was not able to produce any book of accounts or bank statement showing that the cost of construction of the building was met by all the respective owners with their individual contribution. Since the event of taxation of the building is the date of completion of construction of the building, the petitioner in the O.P. alone was the owner at the taxable event in this case and no other person become the owner of the building for the purpose of assessment._ _**WPC.15637/08**_ _**5**_ _Since the petitioner in the O.P. failed to satisfy the requirements in Explanation 2 to Section 2(e), he is not entitled to the benefits embodied in this above provisions. The claim for separate assessment does not have any merits._ _In view of the above facts, the whole building shall be considered as a single unit for the purpose of assessment and the petitioner in the O.P. is liable to pay the tax already assessed. The Assessment Order in Form V and Notice of Demand in Form VI are appended herewith."_ It is further found that the petitioners in the Writ petition failed to satisfy the requirements of Explanation 2 to Section 2(e) of the Kerala Building Tax Act. 4. Counsel for petitioners would submit that the order based on the alleged statements of thirty persons should not have been passed. It is complained of by the petitioners that the directions in Ext.P10 Judgment have not been complied with. In Ext.P10 Judgment, this Court has held that the earlier orders Exts.P8 and P9 had not been passed in compliance with the _**WPC.15637/08**_ _**6**_ Judgment in Bavasons Constructions (P) Ltd. v. State of Kerala (2007 (3) KLT 101). 5. A Counter Affidavit has been filed wherein, it is, inter alia, stated that the petitioners have not produced any concrete evidence to establish their claim, even though they were given more chances in this regard. It is reiterated that only thirty persons had appeared. It is further stated that the parties who appeared before the first respondent argued that they have purchased the undivided share of the property only after the construction of the building, and that no cost of construction was met by them. They further stated that the building owner alone constructed the building utilising his own funds and that they have purchased the built up area of the building and, therefor2e, they are not liable to pay any tax under the Kerala Building Tax Act. Thereafter, a Statement has been filed by the Government Pleader showing the list of thirty persons who appeared and made such statements as aforesaid. No Reply Affidavit is filed rebutting the allegation in the Counter _**WPC.15637/08**_ _**7**_ Affidavit that the petitioners were not able to produce any evidence to establish their claim. 6. I would think that, in the circumstances of this case, it is not necessary for this Court under Article 226 of the Constitution of India, to consider the complaint. If the petitioners are aggrieved by the order, it is for them to approach the Appellate Authority in the facts of this case. Accordingly, the Writ Petition is disposed of without prejudice to the right of the petitioners to prefer Appeal. If the petitioners prefer Appeal within two weeks from today, the Appellate Authority will consider the same on merits and in accordance with law, provided the petitioners remit the first instalment. **Sd/= K. M. JOSEPH, JUDGE** ## **kbk.** ## **// True Copy//** **PS to Judge**