High Court of KeralaSingle Judge2014-12-01Disposed of the Writ Petition; Ext. P12 quashed...

James Jacob v. The Tahsildar, Meenachil, The Revenue Divisional Officer, Pala and The District Collector, Kottayam

Case / Petition Number:WP(C).No. 35922 of 2007 (B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Jayasankaran Nambiar
Judgment Date: 2014-12-01
Court Decision / Holding: Quashed Ext. P12; directed the 3rd respondent to reconsider the matter afresh after hearing the petitioner and adverting to the documents produced, and to pass fresh orders within three months with reasons for conclusions.
Final Disposition: Disposed of the Writ Petition; Ext. P12 quashed and case remanded for fresh, reasoned consideration within three months.

Parties to the Case

Appellants / Petitioners

James Jacob

Respondents

The Tahsildar, Meenachil (Assessing Authority under the Building Tax Act)
The Revenue Divisional Officer, Pala
The District Collector, Kottayam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Mathew John (K)
• Sri. Ajeesh K. Sasi

Counsels for Respondents

• Smt. Lilly K.T.

Case Synopsis & Summary

James Jacob v. The Tahsildar, Meenachil (Assessing Authority under the Kerala Building Tax Act, 1975), The Revenue Divisional Officer, Palai, and The District Collector, Kottayam concerns the taxation of a building constructed with funds from multiple contributors. The petitioner owned 91 cents of land in Sy. No. 56/44 and sought to construct a building with investments from his two sons, two sons-in-law, and his wife, as recorded in Ext. P1, which detailed each contributor’s share. The first respondent assessed the building as a single unit rather than as separate units corresponding to the individuals’ contributions, prompting an appeal that was dismissed by Ext. P5 and later by Ext. P8 upon revision. This Court previously quashed Ext. P8 via Ext. P9 and directed the 3rd respondent to reassess. In Ext. P12, the 3rd respondent once again held that the land tax was paid by only two persons and that Ext. P1 was not registered, which the petitioner contends ignores the actual arrangement and documents showing separate ownership commensurate with each party’s contribution. The Court found patent non-application of mind in Ext. P12, emphasising that the inquiry must consider whether the various parties had separate ownership supported by cost-sharing documents. The High Court directed a fresh, reasoned order after hearing the petitioner, considering the documents produced, and within three months, and disposed of the petition accordingly. The judgment underscores that building tax assessments for jointly funded constructions must reflect actual ownership rather than technicalities like registration or partial tax payment.

Provisions of Law Cited

Kerala Building Tax Act, 1975; Explanation 2 to Section 2(e)

Legal Doctrines & Maxims

patent non-application of mind

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext. P12 ignores the core issue: whether, despite joint construction, the contributors held separate ownership corresponding to their respective shares, as evidenced by Ext. P1 and supporting documents showing the cost-sharing and ownership pattern. The 3rd respondent failed to consider documents demonstrating separate ownership and the proportional contribution of each party, instead focusing on registration status and land-tax payments by two individuals. The petition cites earlier rulings and directs reassessment that reflects true ownership and cost-sharing; after the prior quashment of Ext. P8 (Ext. P9), Ext. P12 should have addressed the factors relevant under the Building Tax Act and the documents produced by the petitioner. The petitioner seeks fresh orders with reasons and a hearing, in line with the Court’s prior directions and the cited judgments. respondents:The respondents maintain that Ext. P12 was issued based on the lack of material establishing separate ownership and the absence of a document demonstrating that the cost of construction was met separately by all parties. They argue that Ext. P1’s non-registration and the land tax paid by only two persons undermine the claimed division of ownership. The counter-affidavit asserts that the 3rd respondent weighed the available material and the absence of supporting documents; the Court should not substitute its own view where the 3rd respondent has acted within his remit, pending fresh orders guided by the petitioner’s documents and the law.

Contentions of Respondents

The respondents emphasize the absence of material proving separate ownership and the need for formal documentation to support distinct ownership shares. They rely on the lack of registration of Ext. P1 and the fact that land tax was paid by two persons, arguing that Ext. P12’s approach was justified as per the Building Tax Act requirements. They highlight that the 3rd respondent requires material to substantiate separate ownership and the proportional cost-sharing, asserting that the remedy lies in a fresh, reasoned order after hearing and considering the petitioner’s evidence.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
District Collector, Civil Station, Kakkanad and Others v. V.K. Sreekumari Kunjamma	2011 (1) KLT 248 (FB)	Mentioned Only	Cited as guiding principle on the need to address ownership and related factors in building tax assessments; not expressly adopted or distinguished in the ruling.
Varghese P.D. And Others v. State of Kerala and Others	2013 (2) KLT 831 (DB)	Mentioned Only	Cited for relevant principles on building tax and ownership issues; not directly overruled or distinguished in the decision.
Natarajan v. State of Kerala	2013 (4) KLT 364	Mentioned Only	Referenced for doctrinal guidance on assessment considerations; no direct ruling on these points.
Thahasildar & Another v. Soman Peter (Dr.)	ILR 2014 (4) Kerala 327	Mentioned Only	Cited to support analysis; treated as persuasive, not binding on the present question.

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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 A.K.JAYASANKARAN NAMBIAR MONDAY, THE 1ST DAY OF DECEMBER 2014/10TH AGRAHAYANA, 1936 ## WP(C).No. 35922 of 2007 (B) ----------------------- PETITIONER(S): ------------ JAMES JACOB ,S/O.CHACKO, MANAGING PARTNER, KUNJAMMA TOWER, PALA. BY ADVS.SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT(S): ------------ ## 1. THE TAHSILDAR,MEENACHIL (ASSESSING AUTHORITY UNDER THE BUILDING TAX ACT) ## 2. THE REVENUE DIVISIONAL OFFICER, PALA. ## 3. THE DISTRICT COLLECTOR, KOTTAYAM. BY GOVERNMENT PLEADER SMT. LILLY K.T. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35922 of 2007 (B) ## APPENDIX ## PETITIONER'S EXTS: Ext.P1: true copy of the agreement dated 2-4-2000 Ext.P2: true copy of assessment order dated 3-12-2002 by the Ist respondent Ext. P3: True copy of the receipt evidencing payment of Rs. 1,24,650/- dated 28-12-2002 Ext.P4: true copy of the memorandum of appeal filed by the petitioner dated 28-3-2003 Ext.P5: true copy of the order dated 27-8-2003 by the 2[nd] respondent Ext.P6: true copy of the Memorandum of Revision before the 3[rd] respondent dated 30-09-2003 Ext.P7: A true copy of the receipt evidencing payment of Rs. 1,24,650/- dated 19-09-2003 Ext.P8: A true copy of the order dated 26-2-2004 by the 3[rd] respondent Ext.P9: True copy of the judgment dated 21-3-2007 in W.P.C. No. 9247 of 2004 Ext.P10: A true copy of the authorisation WP(C).No. 35922 of 2007 (B) Ext.P11: true copy of the income and expenditure account Ext.P11 (a) - do Ext.P11 (b): -do- Ext.P11 ( c): -do- Ext. P11 (d): -do- Ext. P11 (e) : -do- Ext.P12: A true copy of the order dated 24-10-2007 by the 3[rd] respondent. ## **A.K.JAYASANKARAN NAMBIAR, J. --------------------------------W.P. C. NO.35922 of 2007-B ----------------------------------Dated this the I[st] day of December, 2014** ## **JUDGMENT** The petitioner was the owner of 91 cents of land in Sy. No. 56/44 of Block No. 80 of Lalam Village. It is stated that this property was subsequently settled in favour of his two sons. In so far as the petitioner wanted to put up a building on the said property, and did not have the means to finance the entire construction on his own, he sought financial assistance from his two sons and his two sons-in-law, as also from his wife, for the purpose of effecting the construction. Accordingly, a plan was prepared and the necessary sanction was also obtained from the Pala Municipality on 13-04-1999. Ext.P1 is the agreement dated 2-4-2000, whereby the petitioner and the aforesaid persons who agreed to finance the construction decided upon the respective shares, in the building that was proposed to be constructed, in proportion to their contribution to the cost of construction of the building. While completing the building tax assessment, W.P. C. NO. 35922 of 2007 2 however, the first respondent assessed the building by treating it as a single unit and not as separate units under the ownership of the various persons in Ext.P1 agreement. This led the petitioner to file an appeal before the 2[nd] respondent which was dismissed by Ext.P5 order 27-8-2003. A Revision Petition filed by the petitioner against the said order before the 3[rd] respondent was also dismissed by Ext.P8 order dated 26-2-2004. The petitioner, therefore, challenged Ext.P8 order before this Court in Writ Petition 9247/2004. This Court by Ext.P9 judgment quashed Ext.P8 order and directed the 3[rd] respondent to re-consider the matter. Pursuant to the judgment of this Court, the 3[rd] respondent re-considered the matter and once again dismissed the revision petition by Ext.P12 order dated 24-10-2007. In Ext.P12 order, the 3[rd] respondent finds that the tax in respect of the land was paid only by two persons and further there was no document to establish the separate ownership of the various persons mentioned in Ext.P1 agreement over different portions of the building that was put up. The 3[rd] respondent also took objection to the fact that Ext.P1 agreement was not a registered W.P. C. NO. 35922 of 2007 3 one. In the Writ Petition, the petitioner impugns Ext.P12 order, inter alia on the ground that while passing Ext.P12, the 3[rd] respondent did not apply his mind to the factors that are relevant for consideration of the issue of how an assessment under the Kerala Building Tax Act, 1975, is to be completed in respect of a building where there are several persons who own separate portions of the building. 2. A counter affidavit has been filed on behalf of the respondents wherein it is pointed out that Ext.P12 order was passed by the 3[rd] respondent only on account of the fact that the petitioner had not produced any material to substantiate his contentions with regard to the separate assessment to be done in respect of the building. It is in particular, pointed out that there were no documents relied upon by the petitioner to substantiate his contention that the cost of construction of the building ha been separately met by the various contributories shown in Ext.P1 agreement. W.P. C. NO. 35922 of 2007 4 3. I heard Sri. Mathew John, the learned counsel for the petitioner as well as Smt. Lilly, the learned Government Pleader for the respondents. 4. On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I am of the view that Ext.P12 order of the 3[rd] respondent suffers from a patent non-application of mind with regard to the factors that are germane to a consideration of the manner in which an assessment is to be done of a building which is jointly put up by several persons. In Ext.P12 order, the 3[rd] respondent appears to have placed considerable emphasis on the fact that Ext.P1 agreement was not registered and further that the land tax in respect of the land was paid only by two persons. These findings, cannot have any hearing on the issue to be considered under Explanation 2 to Sec.2 (e) of the Building Tax Act, 1975. I am of the view that the 3[rd] respondent ought to have considered the issue as to whether the several persons who entered into Ext.P1 agreement in fact had separate ownership over various portions W.P. C. NO. 35922 of 2007 5 of the building commensurate with their contribution to the cost of construction of the building. The 3[rd] respondent had necessarily to consider the documents, stated to have been produced by the petitioner, that showed the manner in which the cost of construction of the building was met and those that suggested that the various persons shown in Ext.P12 agreement do have separate ownership over the different portions of the same building. The 3[rd] respondent would also have to take note of the judgments of this Court in **District Collector, Civil Station, Kakkanad and Others v. V.K. Sreekumari Kunjamma - 2011 (1) KLT 248 (FB), Varghese P.D. And Others v. State of Kerala and Others - 2013 (2) KLT 831 (DB), Natarajan v. State of Kerala- 2013 (4) KLT 364 and Thahasildar & Another v. Soman Peter (Dr.) - ILR 2014 (4) Kerala 327.** As these aspects are not seen dealt with by the 3[rd] respondent in Ext.P12 order, I quash the same and direct the 3[rd] respondent to consider the matter afresh and pass orders after hearing the petitioner and adverting to the documents produced by him in support of his contentions. The W.P. C. NO. 35922 of 2007 3[rd] respondent shall pass fresh orders within a period of three months from the date of receipt of a copy of this judgment and the said orders shall specifically advert to the documents produced and relied upon by the petitioner and shall also contain the reasons for the decisions arrived at by the 3[rd] respondent. This Writ Petition is disposed as above. ## Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** ## **Ani/3/12/** **/true copy/** **P.S.to Judge**