K. P. Varghese & Others v. Tahsildar and Others, Taluk Office, Mananthavady

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939** ## **WP(C).No. 26652 of 2011 (F)** ## **----------------------------** **PETITIONER(S):** - **----------------------** ## **1. K.P.VARGHESE & OTHERS** - **S/O.PAULOSE,KOCHUKUNNUMPURATH HOUSE,, MANANTHAVADY, WAYANADU DISTRICT.** **2. CATHREENA VARGHESE, W/O.K.P VARGHESE,KOCHUKUNNUMPURATH HOUSE,** **MANANTHAVADY, WAYANADU DISTRICT.** **3. K.V.JOSE,** - **S/O.K.P.VARGHESE,KOCHUKUNNUMPURATH HOUSE,** - **MANANTHAVADY, WAYANADU DISTRICT.** **4. SHALI JOSE, W/O.K.V.JOSE,KOCHUKUNNUMPURATH HOUSE,** **MANANTHAVADY, WAYANADU DISTRICT.** **5. K.V.JOY, S/O.K.P.VARGHESE,, KOCHUKUNNUMPURATH HOUSE,** **MANANTHAVADY,, WAYANADU DISTRICT.** **6. SHEEJA JOY, W/O.K.V.JOY,, KOCHUKUNNUMPURATH HOUSE,MANANTHAVADY,, WAYANADU DISTRICT.** **7. K.V.JOICE VARGHESE, D/O.K.P.VARGHESE,, KOCHUKUNNUMPURATH HOUSE,** **MANANTHAVADY,, WAYANADU DISTRICT.** ## **BY ADV. SRI.JOBI JOSE KONDODY** ## **RESPONDENT(S):** - **--------------** **1. THE TAHSILDAR & OTHERS TALUK OFFICE,, MANANTHAVADY, WYNAD DISTRICT.** **2. THE REVENUE DIVISIONAL OFFICER, MANATHAVADY, WAYANAD DISTRICT.** ## **WP(C).No. 26652 of 2011 (F)** **----------------------------** ## **3. THE DISTRICT COLLECTOR,** **WAYNAD.** ## **4. THE MANATHAVADY GRAMA PANCHAYAT** **REPRESENTED BY ITS SECRETARY, MANANTHAVADY GRAMA PANCHAYATH OFFICE,, MANANTHAVADY P.O, WAYANAD DISTRICT.** **R1-R3 BY ADV. GOVERNMENT PLEADER SMT. JASMINE. M. M. R4 BY ADV. SRI.JESWIN P.VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 26652 of 2011 (F)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1. A TRUE COPY OF THE NOTICE NO. B6/61/BT/95 DATED 7/1995 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P2. A TRUE COPY OF THE ASSESSMENT ORDER NO. D5-175/BT/97 DATED 15.06.1998 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P3. A TRUE COPY OF THE ASSESSMENT ORDER NO. D5-175/BT/97 DATED 12.02.1998 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P4. A TRUE COPY OF THE NOTICE NO. D5-9721/99 (1) DATED 21.08.1999 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONERS.** **EXHIBIT P5. A TRUE COPY OF THE NOTICE NO. D5-9721/99 DATED 05.11.1999 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONERS. EXHIBIT P6. A TRUE COPY OF THE NOTICE NO. D5-9721/99 DATED 25.11.1999 ISSUED BY THE FIRST RESPONDENT TO THE FIRST PETITIONER. EXHIBIT P7. A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONERS BEFORE THE FIRST RESPONDENT. EXHIBIT P8. A TRUE COPY OF THE SITE PLAN SUBMITTED IN CONNECTION WITH BUILDING PERMIT NO.62/1995-96. EXHIBIT P9. A TRUE COPY OF THE ASSESSMENT ORDER NO.D5-9721/97 DATED 6.12.1999 ALONG WITH NOTICE OF DEMAND ISSUED BY THE FIRST RESPONDENT TO THE FIRST PETITIONER. EXHIBIT P10. A TRUE COPY OF THE MEMORANDUM OF APPEAL NO. 172/2000 DATED 15.01.2000 FILED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT. EXHIBIT P11. A TRUE COPY OF THE ADDITIONAL LIST OF DOCUMENTS SUBMITTED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT ON 05.07.2000 IN APPEAL NO. 172/2000. EXHIBIT P12. A TRUE COPY OF THE ORDER NO. H.172/2000 DATED 05.10.2000 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONERS.** ## **WP(C).No. 26652 of 2011 (F) ----------------------------** **EXHIBIT P13. A TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONERS BEFORE THE THIRD RESPONDENT.** - **EXHIBIT P14. A TRUE COPY OF THE LIST OF DOCUMENTS, DATED 18.10.2000 SUBMITTED ON BEHALF OF THE PETITIONERS BEFORE THE THIRD RESPONDENT.** - **EXHIBIT P15. A TRUE COPY OF THE ORDER NO. B5-33465/2000 DATED 13.11.2002 ISSUED BY THE THIRD RESPONDENT.** - **EXHIBIT P16. A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 14.05.2004 FILED BY RESPONDENTS 1 TO 3 IN O.P NO. 1384 OF 2003 BEFORE THIS HONOURABLE COURT.** - **EXHIBIT P17. A TRUE COPY OF THE JUDGMENT DATED 23.07.2008 PASSED BY THIS HONOURABLE COURT IN O.P NO. 1384 OF 2003.** - **EXHIBIT P18. A TRUE COPY OF THE ORDER DATED 14.07.2011 PASSED BY THE THIRD RESPONDENT.** ## **RESPONDENTS' EXHIBITS NIL** **-------------------------------------** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).No.26652 Of 2011 -(F ) ............................................................. Dated this the 12[th] day of July, 2017** ## **J U D G M E N T** The petitioners, 7 in number, are members of the same family. It is stated that the 1[st] petitioner was the owner of certain extents of property comprised in various survey numbers in Mananthavady Taluk. Pursuant to applications submitted by him for construction of buildings on two different plots of land comprised within the aforementioned survey numbers, the 1[st] petitioner was granted building permits, on the strength of which he constructed two buildings on the properties aforementioned. The 1[st] petitioner also simultaneously assigned various parcels of land, including those on which the buildings were constructed, in favour of the other petitioners who, as already noted, are other members of his family. In the writ petition, the petitioners are aggrieved by the assessments done in respect of the buildings under the Kerala Building Tax Act. It is seen that initially, the two buildings were separately assessed by Exts.P1, P2 and P3 -2- ## **W.P.(C).No.26652 Of 2011 -(F )** assessment orders. The assessment, although initially done in respect of the first building, was subsequently revised taking note of the fact that the construction of the first building had not been completed at the time of original assessment, and in the years subsequent to the said assessment, the petitioner had constructed additional floors to the same building. A revised assessment was therefore done, in terms of Exts.P2 and P3, separately in respect of the building, assuming it to be two buildings, and amounts of Rs.59,400- and Rs.79,200/- respectively demanded from the petitioners after reducing amounts paid by them at the time of original assessment. The revised assessments under Section 5(4) of the Building Tax Act were done in the year 1998. In an appeal preferred by the petitioner against Ext.P3 assessment order in respect of the second building, the appellate authority set aside the assessment done and remanded the matter to the assessing authority for the purposes of fresh determination of the plinth area of both the buildings, for the purposes of assessment. It would appear that, thereafter, the assessing authority issued notices under Section 15 of the Kerala Building Tax Act, seeking a rectification of the revised assessment orders passed under -3- ## **W.P.(C).No.26652 Of 2011 -(F )** Section 5(4) of the Building Tax Act. In the said notices, the ground taken by the assessing authority, for issuing the rectification notices, is that the buildings have to be seen as one building, and therefore, the earlier assessment done on the assumption that the buildings were two separate buildings was erroneous. Although the petitioners preferred replies to the said notices, the Assessing Officer passed Ext.P9 assessment order clubbing both the buildings for the purposes of levy of building tax, and demanding an amount of Rs.1,87,200/- from the 1[st] petitioner. After giving credit to the payments already made pursuant to the previous assessments done,balance amount of Rs.50,400/- was demanded from the 1[st] petitioner. 2. Aggrieved by the assessment order, the petitioners carried the matter in appeal before the first appellate authority and, on its dismissal, before the revision authority. By Ext.P15 order, the revision authority rejected the revision after finding no reason to interfere with the orders passed by the original authority and the first appellate authority. The petitioner therefore impugned the said order (Ext.P15) before this Court through O.P.No.1384 of -4- ## **W.P.(C).No.26652 Of 2011 -(F )** 2003, which was disposed by Ext.P17 judgment, relegating the matter to the revision authority for a fresh consideration after considering the documents that were sought to be produced by the petitioners before this Court. It is relevant to note at this stage that, the contention of the petitioners before this Court was essentially two fold, namely, that there were two separate buildings, and not a single building as found by the assessing authority under the Kerala Building Tax Act. Secondly, it was contended that the buildings in question comprised of separate apartments that belonged to different persons, and hence, the assessment had to be done as separate buildings belonging to different apartment owners, and not as a single building. Pursuant to Ext.P17 judgment, the revision authority, the 3[rd] respondent herein, afforded the petitioners an opportunity of hearing on 20.12.2008, on which date they were all heard and the documents produced by them considered by the revision authority. The revision authority then proceeded to pass Ext.P18 order finding that there was no material produced by the petitioners to show that they were in ownership of separate apartments, within the buildings in question, so as to justify a separate assessment in -5- ## **W.P.(C).No.26652 Of 2011 -(F )** respect of those apartments which were under their separate ownership. It was also noticed that the building permit issued by the local authority was only in the name of the 1[st] petitioner in respect of the two buildings, and therefore, there was no error committed by the lower authority in demanding building tax, by clubbing both the buildings and taking the totality of the plinth area for the purposes of assessment under the Building Tax Act. It is the said order of the revision authority that is impugned in this writ petition under Article 226 of the Constitution of India. 3. A counter affidavit has been filed on behalf of the respondents 1 to 3, wherein the sequence of events leading to the passing of Ext.P18 order is narrated. In particular, it is stated that although there were documents produced to show that the different petitioners had separate ownership of a land on which the buildings stood, no documents were furnished by the petitioners before any of the authorities to indicate that they had separately contributed to the construction of the buildings in question, and that they had separate ownership over different apartments within the buildings in question. It is stated that, it -6- ## **W.P.(C).No.26652 Of 2011 -(F )** was on account of the non-production of valid documents showing the need for a separate assessment, that the buildings were assessed as a single unit in the name of the 1[st] petitioner. 4. I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the provisions of Section 2 of the Kerala Building Tax Act, and in particular Explanation 2 thereof, are very clear when they state that, where the buildings consists of different apartments or flats owned by different persons, and the cost of constriction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building. In other words , what is relevant is that the building must comprise of different apartments, and each of those apartments must be owned by different persons. As regard the cost of construction of the building as a whole, it would suffice that the cost of construction -7- ## **W.P.(C).No.26652 Of 2011 -(F )** was made by all such persons jointly. This aspect has been clarified by the Supreme Court in the decision in State of **Kerala and Others v. A.P Mammikutty [2015 (3) KHC 794 (SC)]** especially in paragraph 14 thereof, which deals with the manner in which the requirement of meeting the cost of construction of the building, for the purposes of Explanation 2 of Section 2 (e) of the Kerala Building Tax Act, is to be established. Inasmuch as in the instant case, there is no material produced by the petitioner at any stage, before any of the statutory authorities, to show either that they were in ownership of separate apartments within the building or that they had jointly contributed to the cost of construction of the building, I am of the view that Ext.P18 order, which finds against the petitioner on the issue of separate assessments, cannot be faulted. For the same reason, I also do not find force in the contention of the learned counsel for the petitioners that Ext.P18 order was passed by the revision authority different, from the one who had heard the petitioners on 20.12.2008. While the petitioner may have made out a technical point with regard to the violation of the rules of natural justice, I am of the view that in the absence of any documents produced by the petitioner before any of the -8- ## **W.P.(C).No.26652 Of 2011 -(F )** authorities to substantiate the contention on merits, it would be a futile exercise to remit the matter back to the revision authority for a fresh adjudication solely on account of a technical violation in the passing of Ext.P18 order. Thus the challenge in the writ petition against Ext.P18 order fails and is accordingly dismissed. The petitioners shall effect payment of the balance tax and interest, if not already paid, within a period of two months from the date of receipt of a copy of this judgment. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/12.07.17