Grace Joseph v. District Collector, Kottayam and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 7TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940** **WP(C).No. 6636 of 2014** ## **PETITIONER:** **GRACE JOSEPH, AGED 53 YEARS, W/O.JOSEPH KUNCHERIYA, RESIDING AT THURUTHUMALIYI HOUSE, VAZHAPPALLY EAST, KOTTAYAM.** **BY ADV.SRI.M.J.THOMAS** ## **RESPONDENT(S):** **1. THE DISTRICT COLLECTOR,** **KOTTAYAM-686 001** **2. THE REVENUE DIVISIONAL OFFICER, KOTTAYAM -686 001** **3. TAHSILDAR,** **CHANGANASSERY, KOTTAYAM -686 101** **4. THE VILLAGE OFFICER,** **VAZHAPPALLY EAST VILLAGE, CHANGANASSERY,** **KOTTAYAM-686 101** **R1 TO R4 BY SR GOVERNMENT PLEADER SRI.C.K.GOVINDAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 14/6/2018** ## **WP(C).No. 6636 of 2014 (D)** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PARTIAL OCCUPANCY CERTIFICATE ISSUED BY THE TOWN PLANNING OFFICER, CHANGANASSERY DATED 05-06-2009** - **EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.1027/2009 DATED 01-06-2009 OF THE SRO, CHANGANASSERY** - **EXHIBIT P3 TRUE COPY OF THE SALE DEED NO.1028/2009 OF THE SRO, CHANGANASSERY** - **EXHIBIT P4 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 21-12-2010** - **EXHIBIT P5 TRUE COPY OF THE ASSESSMENT ORDER DATED 25-02-2011** - **EXHIBIT P6 TRUE COPY OF THE ORDER FIXING RS.2000/- AS THE LUXURY TAX PAYABLE EVERY YEAR** - **EXHIBIT P7 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE RDO** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 29-12-2012 OF THE RDO, KOTTAYAM** - **EXHIBIT P9 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR** - **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 18-10-2013 DISMISSING THE REVISION PETITION** - **EXHIBIT P11 TRUE COPY OF THE CONVEYANCE DEED 2390/2011 DATED 11-10-2011 OF THE SRO CHANGANASSERY** - **EXHIBIT P12 TRUE COPY OF THE CONVEYANCE 2391/2011 DATED 11-10-2011 OF THE SRO CHANGANASSERY** - **EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 03-02-2014 SUBMITTED TO THE RDO KOTTAYAM** ## **RESPONDENT'S EXHIBITS:** **NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts 14/6/2018** ## **DEVAN RAMACHANDRAN, J. ------------------------------------W.P.(C)No.6636 of 2014 --------------------------------------Dated this the 07[th] day of June, 2018** ## **JUDGMENT** The petitioner challenges assessment against her under the Building Tax Act with respect to a three storied building constructed by her. The impugned orders, namely Exts.P5, P8 and P10, are by the authorities in hierarchy, imposing building tax reckoning the whole building as one unit. 2. The petitioner’s singular contention is that the whole building ought not to have been reckoned as one unit since, even before the first and the second floors of the said building were completed, he had sold portions of the same, measuring 780 sq.ft. each, to other persons and that it were they who had completed the construction. 3. In effect the assertion of the petitioner is that the impugned orders are untenable in law, since it took the whole building as one unit; whereas portions of the same had already been sold before construction to other persons. 4. In addition to this contention, he also has a case that the luxury tax imposed on him, subsequent to the W.P.(C)No.6636/2014 2 construction was completed, is also in error because such assessment also took into account portions of the building sold by him prior to the completion of the construction and thereafter. She says that she has, therefore, preferred Ext.P13 representation before the 2[nd] respondent-the competent authority under the Luxury Tax Act and she prays that the said Authority be directed to consider and dispose of the same also. 5. I have heard the learned counsel for the petitioner Sri.M.J.Thomas and the learned Senior Government Pleader Sri.C.K.Govindan appearing for the respondents. 6. As I have indicated in the narration of facts above, there are two issues involved in this case. One relates to the assessment of building tax and the other relates to the assessment of luxury tax. Both these relate to a three storied building constructed by the petitioner. The petitioner shows me Ext.P1 occupancy certificate, issued by the Changanacherry Municipality and says that the first floor of the said building was completed on 1.4.2009 and then points out to Ext.P4 to demonstrate that the construction of the first and the second floors were completed only on 1.9.2010. Her assertion is that W.P.(C)No.6636/2014 3 even before the first and the second floors were completed, she had executed Exts.P2 and P3 documents in favour of other persons, as per which, 780 sq.ft. each in the first and the second floors were assigned to them. It is on this basis that she says the assessment of the building as one integral whole for the purpose of building tax is illegal. As regards luxury tax is concerned she concedes that she has paid off the demand earlier made on her through Ext.P5; whereas according to her, the subsequent assessments are incorrect since after completion of the building she has sold more portions of the second and the third floors, through Exts.P11 and P12, to other persons. It is on this basis that she says she preferred Ext.P13 representation and prays that the same be considered by the competent authority. 7. The learned Senior Government Pleader, Sri.C.K.Govindan, submits that the impugned orders, namely Exts.P5 and P10, were issued by the competent Authorities considering the materials produced before them by the petitioner and finding that the constructions were completed before Exts.P2 and P3 documents had been executed. W.P.(C)No.6636/2014 4 According to him, once a construction is complete it makes no difference whether the owner sells portions of the same, since the assessment will have to be done, as per the provisions of the Act, on the whole building and not the remaining portions thereof. As far as luxury tax is concerned, he concedes that Ext.P13 representation can be directed to be considered by the competent Authority in terms of law and he also agrees that nowhere in the pleadings or in the materials available does it show that the said Authority had been informed of Exts.P11 and P12 sale deeds. 8. On an appreciation of the submissions made before me by the learned counsel as above, it becomes necessary to consider the validity of the orders impugned before me as regards the building tax assessment is concerned on the basis of the contents of such orders. When one reads Exts.P4 and P10, it becomes perspicuous that the Authorities have proceeded under the assumption that Exts.P2 and P3 documents had been executed after the construction of the building was completed. The Authorities have relied upon Ext.P1 occupancy to think that the whole construction had W.P.(C)No.6636/2014 5 been completed on 1.4.2009; whereas Exts.P2 and P3 documents were executed on 1.6.2009. Ex facie, it appears that there is some problem in these two orders while considering the true factual factors because, going by Ext.P1, only the first floor was completed as on 1.4.2009 and as Ext.P4 would show, the first and the second floors were completed only on 1.9.2010. Sri.Govindan answers this doubt of mine by saying that a reading of Exts.P2 and P3 sale deeds make it obvious that what was sold there under were rooms in the first and the second floors, thereby to mean that construction had been either been fully completed or partially completed even at the time when those documents were executed. He relies on the judgment of this Court in **Bavasons Constructions (P) Ltd. v. State of Kerala (2007 (3) KLT 101)** to assert that the sale of an uncompleted building would not absolve the owner of the liability of the building tax since, that portion of the building which had been completed at the time of the assessment, would also be under his responsibility and assessment. He further says that the pleadings on record and the materials produced would not show that the W.P.(C)No.6636/2014 6 purchasers, under Exts.P2 and P3, had contributed any amounts to the construction and that in the absence of such information being available, it would not be possible for the petitioner to claim that the portions covered by Exts.P2 and P3 be excluded from his assessment. 9. I have considered the submissions of Sri.Govindan with a great amount of care and I find substantial force in it. However, the fact remains that in Exts.P4 and P10 the factual conclusion of the authorities therein is that Exts.P2 and P3 documents were executed after the first and the second floors were completed, for which purpose they relied upon Ext.P1, but they have not seen Ext.P4 occupancy certificate. If Ext.P4 certificate had been seen by them, then it is certainly possible that the conclusions could have been different or to the contrary. 10. The learned counsel for the petitioner at this point of time says that even if the portions of the building had been sold after completion, the assessment to be made by the authorities should not have been for the composite whole and he relies on the judgments of this Court in **District Collector** W.P.(C)No.6636/2014 7 ## **v. Sreekumari Kunjamma (2011 (1) KLT 248 (F.B.)** and in **Ananthapadmanabhan Nair v. District Collector (2016** **(1) KLT 485)** , as also the judgment of the Hon’ble Supreme Court in **State of Kerala v. Mammikutty (2015 (3) KLT 138 (SC)]** . 11. Since it would not be possible for this Court to enter into a detailed analysis of the factual factors, such exercise being virtually proscribed to this Court when it acts under Article 226 of the Constitution of India, I deem it appropriate that all these issues be relegated to the District Collector, the revisional Authority who is also the competent authority under the Luxury Tax Act. 12. In the result, I order this writ petition directing the District Collector, the 1[st] respondent herein, to reconsider the revision filed by the petitioner, which led to Ext.P10 order and to issue an appropriate order after affording an opportunity of being heard to the petitioner and after adverting specifically to the precedents cited by the parties as recorded in this judgment. He shall also consider Ext.P13 representation relating to the luxury tax assessment and take a decision W.P.(C)No.6636/2014 8 thereof in terms of law, after affording an opportunity of being heard to the petitioner. This exercise shall be completed by the District Collector, as expeditiously as possible, but not later than four months from the date of receipt of a copy of this judgment. To facilitate this I deem it appropriate to quash Ext.P10 so as to pave way for fresh consideration at the hands of the District Collector. 13. Until such time as a decision is taken by the District Collector as ordered herein and communicated to the petitioner, the interim order of this Court, dated 10.3.2014, granting stay of all proceedings pursuant to Ext.P5, and extended from time, to time shall continue to hold the field. This writ petition is thus ordered. Sd/- **DEVAN RAMACHANDRAN, JUDGE** skj