Kochummen Geevarghese v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 3RD DAY OF APRIL 2012/14TH CHAITHRA 1934** ## **WP(C).No. 29552 of 2007 (R) ---------------------------** **PETITIONER(S): ------------------------** **KOCHUMMEN GEEVARGHESE, AKS LAND, ODANAVATTOM, KOLLAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, K. JOHN, S/O.KOCHU KOSHY, VADASSERIVILA VEEDU, CHOWALLUR, EDAKKADOM P.O., EZHUKONE.** **BY ADV. SRI.S.SANTHOSH KUMAR.** **RESPONDENT(S): -------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, KOLLAM.** **3. THE REVENUE DIVISIONAL OFFICER, KOLLAM.** **4. THE TAHSILDAR, TALUK OFFICE, KOTTARAKKARA.** ## **BY GOVT. PLEADER SMT.LILLY K.T.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **rs.** ## **WP(C).No. 29552 of 2007 (R)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE ASSESSMENT ORDER DATED 19/11/2003. EXT.P1A COPY OF THE ASSESSMENT ORDER DATED 20/11/2003. EXT.P2 COPY OF THE NOTICE DATED 14/10/2005 ISSUED BY THE 3RD RESPONDENT. EXT.P3 COPY OF THE OBJECTION DATED 31/10/2005 SUBMITTED BY THE PETITIONER. EXT.P4 COPY OF THE ASSESSMENT ORDER DATED 04/11/2005. EXT.P5 COPY OF THE INSPECTION REPORT DATED 19/08/2006. EXT.P6 COPY OF THE ORDER DATED 05/02/2007 ISSUED BY 2ND RESPONDENT. EXT.P7 COPY OF THE REVISION PETITION DATED 08/03/2007 TO THE 1ST RESPONDENT. EXT.P8 COPY OF THE ORDER DATED 17/09/2007 OF THE 2ND RESPONDENT. EXT.P9 COPY OF THE THREE PHOTOGRAPHS OF THE TWO BUILDINGS.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R4A PHOTOGRAPHS OF THE BUILDING OWNED BY THE PETITIONER.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C) No.29552 OF 2007** ......................................................................... **Dated this the 3[rd] April, 2012** ## **J U D G M E N T** Two buildings constructed by the petitioner (touching each other at the North-Eastern corner of the building facing West, with the other building facing the South, at its South-Western corner) were assessed separately, as per Exts.P1 and P1(a) assessment orders dated 19.11.2003 and 20.11.2003, fixing the liability under the relevant provisions of the Kerala Building Tax Act; which is stated as satisfied by the petitioner. 2. Two years after the said assessment, the petitioner was served with Ext. P2 notice dated 14.10.2005 issued by the 4[th] respondent, stating that, in the course of inspection by the officers of the Land Revenue Commissionerate, the assessment was found defective, instructing the assessing authority to have it assessed as a single building/unit and accordingly, objection, if any, was called for. On receipt of Ext.P2, the petitioner **2** ## **W.P.(C) No.29552 OF 2007** submitted detailed objection, as borne by Ext. P3, paragraph '6' of which reads as follows: _“6. It is submitted that these are two separate buildings and both the concreted roof slabs are away by at least 3 mtrs. The first building is facing towards west on the Kottarkara-Oyoor Road, without even a single opening towards eastern side. The other second building is away from the north-east corner of the first building, lying east west, facing towards south. The property north of the said first building and west of 2[nd] building belongs to another owner and therefore to prevent ingress and agress from this property through the space in between the first and 2[nd] building, a wall has been constructed. By this, it cannot be construed that the buildings are connected. The petitio_ ner _stoutly objects and denies the contention on this account. ”_ Despite the explanation offered by the petitioner, the 4[th] respondent proceeded with re-assessment and passed Ext. P4 **3** ## **W.P.(C) No.29552 OF 2007** order dated 04.11.2005 reckoning the total plinth area of the building as 905.85 sq. metre, fixing the total tax liability at Rs.1,35,000/-. After giving credit to a sum of Rs.1,06,200/satisfied already; balance sum of Rs.28,800/- was required to be satisfied by way of four equal installments. 3. The course and proceedings pursued by the 4[th] respondent being totally alien to the scheme of the Statute, the petitioner preferred an appeal before the third respondent, who caused the building to be inspected by the Sr. Superintendent (Inspection and Audit). The said authority filed Ext. P5 inspection report dated 19.08.2006, pointing out that there were two separate buildings, one facing the Kottarakkara -Oyur road on the West and the other, facing the South, with separate entrance to both the buildings. It was stated that, a side wall on the north-eastern corner of the building was constructed joining both the buildings on the ground floor. It was also pointed out that the reason for such construction of the wall was to prevent ingress and agress to the property of the petitioner from the property lying vacant on the northern side of the house building **W.P.(C) No.29552 OF 2007** **4** ie. on the western side of the second building, which belonged to a stranger. Likewise, there is some connection on the upper portion of the buildings as well, through parapet. It was with reference to such construction, that the inspecting authority reported that both the buildings were seen as a single building at a glance. Though, nothing was there in Ext. P5 report of the inspecting authority that both the buildings were liable to be treated as a single building, but for the mistaken identity as a single building at a glance. The contents of the said report were wrongly read and understood by the appellate authority, who declined interference and dismissed the appeal as per Ext. P6 order dated 05.02.2007, confirming Ext.P4 assessment. Though the petitioner preferred Ext..P7 Revision Petition before the second respondent, the same did not turn to be fruitful and it was dismissed as per Ext. P8 order dated 17.09.2007, which in turn is under challenge in this writ petition. 4. Respondents 2 to 4 have filed a counter affidavit virtually reiterating the sequence of events as given in the writ petition itself. The contention is that, by virtue of the connection **5** ## **W.P.(C) No.29552 OF 2007** provided by the petitioner in the ground floor and other upper floors connecting the parapet of the concerned buildings, it was liable to be treated as a common building, treating the building as connected with each other. As per Exts.P1/P1(a) assessments and also on going by the contents of paragraph '2' of the counter affidavit, the first building is having a plinth area of 532.25 sq.metre, whereas the other one is having plinth area of 369.60 sq.metre, which in turn were assessed separately. But the said assessment was nullified and Ext. P4 re-assessment was effected by the 4[th] respondent, pursuant to the instructions given from the part of the Land Revenue Commissionerate, to have the buildings treated together as a 'single unit'. The source of power for such exercise is stated as flowing from Sec.15(1) of the Kerala Building Tax Act (KBT Act) . 5. The learned Counsel for the petitioner submits that the actual lie and location of the property and the buildings are clearly discernible from Ext.P9 photograph, which shows that the connection/touching, if any, between the two buildings is only between two corners of the building, i.e. on the North- **6** ## **W.P.(C) No.29552 OF 2007** Eastern corner of the first floor touching with the South-Western corner of the other building. But viewing the buildings from the Southern side, it may appear that both the buildings are connected together as a single building, which forms the basis for revised assessment. 6. With regard to the provisions of the Statute, the learned Counsel for the petitioner submits that the power vested with the authorities under Section 15 of the KBT Act is only to rectify the errors apparent on the face of the records, which cannot be invoked for the purpose of any 're-assessment' or 'fresh assessment'. 7. Reliance is also sought to be placed on the decision reported in **2005(2) KLT 206** ( _**Hajara vs. State of Kerala**_ ). The decision rendered by this Court in _**Bavasons Constructions (P) Ltd. vs. State of Kerala**_ [ **2007 (3) KLT** **101** ], is cited to the effect that the process of assessment being quasi judicial, the assessing authority shall not be guided by the instructions issued by superior officers or the Government . 8. The learned Government Pleader submits that though **7** ## **W.P.(C) No.29552 OF 2007** there is a reference in Ext.P2 notice as to the involvement of the officers of the Land Revenue Commissionerate, it was only with reference to the mistake involved in the assessment, that the proceedings were pursued further, not for any re-assessment but to rectify the said mistake, for which the power under Section 15 of the KBT Act is very much available. 9. After hearing both the sides and also on going through the materials on record, this Court finds that the two buildings constructed by the petitioner, as reported by the Inspecting Officer vide Ext.P5 and also as reflected from Ext.P9 photograph produced by the petitioner are standing with distinct and separate identity, though both the buildings appear to be touching each other at one corner. This is not a reason for treating the two buildings to be part of the same or single building, for the purpose of assessment under the Kerala Building Tax Act. Even if the said buildings are owned and possessed by the very same owner, the party is entitled to construct any number of buildings in his property and such buildings are liable to be treated as separate buildings for the purpose of taxation as **8** ## **W.P.(C) No.29552 OF 2007** well under the KBT Act, in so far as those buildings are not connected together , which inference is possible in view of the observation made by a Full Bench of this Court in **2011(1)KLT** **248 (FB)** _**[District Collector vs. Sreekumari Kunjamma]**_ . 10. As per the said decision, the earlier decision rendered by a Single Bench of this Court in _**Lalitha vs. State of Kerala**_ ( **1994(2) KLT 66)** holding that, under no circumstance clubbing together of the buildings is possible for want of relevant provisions under the Statute, is held as not correct. If the very same owner owns two different apartments in a 'single building complex', the above two apartments though having separate access, are liable to be treated as part of the same building, in the hands of the very same owner. This decision rendered by the Full Bench however does not disrupt or shatter the proposition that the owner is at liberty to construct different buildings in his property, in so far as the buildings are distinct and different from each other . 11. Coming to the case in hand, the inspecting officer has clearly reported in Ext.P5 that there are two separate buildings, **9** ## **W.P.(C) No.29552 OF 2007** one facing the West and the other facing the South and that the buildings are touching each other only at one corner, as explained therein. He has reported that, at the first instance, the buildings may appear as part of 'one building' at the first glance; which means actually they are not. This Court finds that both the buildings are distinct and separate and the course pursued by the respondents to have the said buildings assessed as a Single Unit is contrary to the actual facts and figures and the relevant provisions of law. 12. With regard to the scope of Section 15 of the KBT Act, the said provision itself is categoric, in so far as it can be invoked for the purpose of rectifying any 'error apparent on the face of the records'. Going by the materials on record, it is seen that, there was no error apparent on the face of the records, so as to have intercepted with Ext.P1/P1(a) assessment orders passed by the 4[th] respondent and to have the same substituted as per Ext. P4. 13. As mentioned hereinbefore, the two buildings were assessed separately with different plinth areas of 369.60 sq. **10** ## **W.P.(C) No.29552 OF 2007** metre and 536.25 sq.metre in Exts.P1/P1(a) and while passing Ext.P4, the different plinth areas, as aforesaid, have been clubbed together and assessed as part of a common building. This, in other words, is re-assessment . Whether such a course is possible by invoking Section 15 KBT Act is the next question. This issue has been considered by this Court and it has been answered against the Revenue, as per the decision in **2005(2) KLT 206 (** cited supra **)** . Similar view has been taken in the decision in _**Sankara Narayana Menon vs. State of Kerala**_ ## ( **2007(4) KLT 820)** as well. 14. In the above circumstance, this Court finds that the issue has been wrongly approached, considered and decided by the concerned respondents. As a natural consequence, the impugned orders are necessarily to go. Exts.P4 order passed by the 4[th] respondent, Ext. P6 order passed by the third respondent and Ext.P8 order passed by the second respondent are accordingly set aside. The amount, if at all any, satisfied by the petitioner in the course of pursuing statutory remedies against Ext.P4 shall be refunded to the petitioner within three months **11** ## **W.P.(C) No.29552 OF 2007** from the date of receipt of a copy of the judgment, failing which, the same will attract interest at the rate of 10% per annum. The writ petition is allowed. No cost. **P.R. RAMACHANDRA MENON, JUDGE.** lk