Faseela Sulaiman v. Tahsildar, Taluk Office, Chittur; Revenue Divisional Officer, Palakkad; State of Kerala (and Addl. R4 & R5 impleaded)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938** ## **WP(C).No. 29894 of 2007 (H)** **----------------------------** ## **PETITIONER :** **----------------------** **FASEELA SULAIMAN, W/O.K.M.SULAIMAN, K.M.S.MANZIL, KADAMPIDI, CHITTILAMCHERRY, VIA ALATHUR, PALAKKAD DISTRICT.** **BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON** **RESPONDENT(S):** **-----------------------------** **1. TAHSILDAR, TALUK OFFICE, CHITTUR.** ## **2. REVENUE DIVISIONAL OFFICER, PALAKKAD.** ## **3. STATE OF KERALA,** **REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, KERALA GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM.** ## ***ADDL.R4 & R5 IMPLEADED** ***ADDL.R4: MOHAMMED SHEREEF, S/O.MUHAMMED SALI, SHASIYA COTTAGE, ERATTAKKULAM, ANJUMOORTHY POST, ALATHUR.** - ***ADDL.R5: MOIDEENKUTTY, S/O.ALIYARKUTTY RAWTHER,** **S.M.MANZIL, CHIRA, MANJAPRA POST, ALATHUR.** ***ARE IMPLEADED AS ADDITIONAL R4 AND R5 AS PER ORDER DATED 26/10/07 IN IA.NO.14293/2007.** **R1 TO R3 BY GOVERNMENT PLEADER SMT.M.M.JASMIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.29894/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE LEASE DEED WITH MUHAMMED SHAREEF, DATED 22/07/2005** - **P2 COPY OF THE LEASE DEED WITH MOIDEENKUTTY, DATED 29/08/2005** - **P3 COPY OF THE OWNERSHIP CERTIFICATE ISSUED TO MUHAMMED SHERIF, DATED 08/09/2005** - **P4 COPY OF THE OWNERSHIP CERTIFICATE ISSUED TO MUHAMMED SHERIF, DATED 08/09/2005** - **P5 COPY OF THE OWNERSHIP CERTIFICATE ISSUED TO MUHAMMED SHERIF, DATED 08/09/2005** - **P6 COPY OF THE OWNERSHIP CERTIFICATE ISSUED TO MUHAMMED SHERIF, DATED 08/09/2005** - **P7 COPY OF THE OWNERSHIP CERTIFICATE ISSUED TO MOINDEENKUTTY, DATED 08/09/2005** - **P8 COPY OF THE OWNERSHIP CERTIFICATE ISSUED TO MOINDEENKUTTY, DATED 08/09/2005** - **P9 COPY OF THE OWNERSHIP CERTIFICATE ISSUED TO MOINDEENKUTTY, DATED 08/09/2005** - **P10 COPY OF THE OWNERSHIP CERTIFICATE ISSUED TO MOINDEENKUTTY, DATED 08/09/2005** - **P11 COPY OF THE ORDER IN FORM NO ISSUED BY THE FIRST RESPONDENT DATED 06/02/2007** - **P12 COPY OF THE APPEAL FILED BEFORE THE SECOND RESPONDENT, DATED 02/03/2007** - **P13 COPY OF THE ORDER IN C.1108/07 OF THE SECOND RESPONDENT, DATED 30/07/2007** ## **RESPONDENT'S EXHIBITS:** **NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **A.M.SHAFFIQUE, J.** **------------------------------------** W.P.(C).No.29894 of 2007 **-----------------------------------** Dated this the 7[th] day of November, 2016 ## **J U D G M E N T** The petitioner challenges Exts.P11 and P13 by which the building belonging to the petitioner had been assessed for tax by computing the total area as 1014.34 sq.metres and the petitioner is called upon to pay an amount of 1,54,800/-. ₹ 2. According to the petitioner, she constructed only ground floor of the building. The 1[st] floor and 2[nd] floor were constructed by the lessee who were granted lease hold interest in respect of the 1[st] floor as well as the 2[nd] floor by virtue of two separate registered lease deeds dated 22.07.2005 and 29.08.2005. The schedule to Ext.P1 would show that the terrace of the ground floor with right to construct building thereon at the expense of lessee and to pay rent for the said portion has been given to the lessee for a period of 50 years. It is also indicated that the lessee was put in possession on 01.01.2004 following an oral lease. By Ext.P2 similar rights had been transfered with the right to construct a floor (2[nd] floor) for a period of 50 years on an yearly rent of 1,500/-.₹ 3. The main contention urged by the petitioner is that when construction had been made by the petitioner along with the additional respondents 4 and 5, all of them separately are to be assessed for the purpose of levying building tax under the Building W.P.(C).No.29894 of 2007 2 Tax Act, 1975. However, the assessing authority as well as the appellate authority did not consider the said claim and had proceeded on the basis that the lessee will have no right over the land and will not get full ownership right over the building. Further it is observed that the lease deed had been registered only to evade payment of building tax. 4. Learned counsel for the petitioner while impugning the aforesaid orders passed by the assessing authority as well as the appellate authority placed reliance on judgment in _**Lisha Babu v. District Collector [2007 (4) KLT 648]**_ and _**Jessy Mathew v. District Collector [2013 (3) KLT 246]**_ . 5. Heard the learned counsel for the petitioner and the learned Government Pleader. 6. Counter affidavit has been filed by the 2[nd] respondent supporting the stand in the matter. 7. The definition of building under Section 2(e) and explanation 2 reads as under : _“(e) “building” means a house, out-house, garage or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure;_ _xxxx_ _Explanation 2.- Where a building consists of different_ W.P.(C).No.29894 of 2007 3 _apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building.”_ 8. In the present case petitioner's contention is that there are three floors for the building which are separately constructed by three separate persons. The first question to be considered is whether Explanation 2 will apply to the facts of the case. Explanation 2 refers to different apartments or flats owned by different persons and the cost of construction of the building was met by such persons jointly. The question to be considered is whether all these floors can be utilised separately in order to get the benefit of Explanation 2. If so, the building has to be assessed separately treating the same as different apartments or areas owned by different persons. Apparently, going by the terms of the lease deed, it has created an interest on the property by virtue of the document whereby right to construct the first floor and second floor had been given to respondents 4 and 5. The owner has been defined under Section 2(i) as under : _“(i) “owner” includes a person who for the time being is receiving, or is entitled to receive, the rent of any building, whether on his own account or on account of himself and others or as an agent, trustee, guardian or receiver or any other person or who should so receive the rent or be entitle to receive it if the building or part thereof were let to a tenant;”_ W.P.(C).No.29894 of 2007 4 ## The plinth area is defined under Section 2(k) as under: _“(k) “plinth area” means the area included in the floor of a building and where a building has more than one floor the aggregate area included in all the floor together:_ _Provided that in the case of a building referred to in the Explanation 2 to clause (e), the plinth area shall be calculated separately;”_ 9. Necessarily, going by the statutory provisions, the entire area of the building which has more than one floor, the aggregate area included in all the floors together has to be taken. This is the normal rule. The only exception is that it should be a building referred to in Explanation 2 to Section 2(e), in which event, the plinth area has to be calculated separately. Therefore, it is for the assessing authority to ensure whether the explanation to Section 2 (e) can be applied to the present building or not or else, the plinth area will be as defined under Section 2(k). 10. This is a question of fact which requires consideration and it is for the petitioner along with respondents 4 and 5 to adduce necessary evidence before the authority. The respondent authorities have mentioned that the documents Exts.P1 and P2 have been executed for the purpose of avoiding payment of building tax. As already indicated nothing prevents separate owners to have separate portions of the building for their own use, which depends upon the contract between the parties. The building permit as well W.P.(C).No.29894 of 2007 5 as the building plan has to be verified to arrive at a conclusion as to whether the building can be separately assessed or assessed as a single block. Under such circumstances, I am of the view that one more opportunity has to be given to the petitioner to adduce evidence. Accordingly, this writ petition is disposed of as under : 1. Exts.P11 and P13 are set aside. 2. The assessing authority is directed to issue notice to the petitioner as well as respondents 4 and 5 and pass a fresh order in the light of the observations made above. Sd/- ## **A.M.SHAFFIQUE, JUDGE.** AV