Marykutty Emmanuel & Home Pride Constructions (P) Ltd. v. State of Kerala & The Tahsildar, Kanayannur Taluk, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 **WP(C).No. 5685 of 2007(E)** **-------------------------** PETITIONERS: - --------------- 1. MARYKUTY EMMANUEL, SUJATHA BUNGALOW, THOTTUMUGHAM P.O., ALUVA. 2. HOME PRIDE CONSTRUCTIONS (P) LTD., REPRESENTED BY ITS DIRECTOR, MARYKUTTY EMMANUEL, THRIKKAKARA WELGHTS, KOLLAMKUDIMUGAL, THRIKKAKARA P.O., PIN-682021. BY ADV. SRI.P.K.RAVISANKAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY (TAXES), TRIVANDRUM. 2. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. BY OVERNMENT PLEADER ADV. MR. MATHEW VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON 05/01/2010 DELIVERED THE FOLLOWING: ## **WP(C).No. 5685 of 2007(E)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |EXT. P1|:|TRUE COPY OF THE AGREEMENT FOR SALE DATED| |---|---|---| |||19.06.96.| |EXT.P2|:|TRUE COPY OF THE AGREEMENT FOR CONSTRUCTION| |||DATED 15.02.2002.| |EXT.P3|:|TRUE COPY OF THE SALE DEED NO.504/2002 DATED| |||10.04.2002.| |EXT.P4|:|TRUE COPY OF THE RETURNS FILED BY THE| |||PETITIONER IN RESPECT OF EACH FLAT.| |EXT.P5|:|TRUE COPY OF THE RETURNS FILED BY THE| |||PETITIONER IN RESPECT OF EACH FLAT.| |EXT.P6|:|TRUE COPY OF THE RETURNS FILED BY THE| |||PETITIONER IN RESPECT OF EACH FLAT.| |EXT.P7|:|TRUE COPY OF THE RETURNS FILED BY THE| |||PETITIONER IN RESPECT OF EACH FLAT.| |EX.P8|:|TRUE COPY OF THE RETURNS FILED BY THE| |||PETITIONER IN RESPECT OF EACH FLAT.| |EXT.P9|:|TRUE COPY OF THE RETURNS FILED BY THE| |||PETITIONER IN RESPECT OF EACH FLAT.| |EXT.P10|:|TRUE COPY OF THE RETURNS FILED BY THE| |||PETITIONER IN RESPECT OF EACH FLAT.| |EXT.P11|:|TRUE COPY OF THE RETURNS FILED BY THE| |||PETITIONER IN RESPECT OF EACH FLAT.| |EXT.P12|:|TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE| |||PETITIONER TO THE 2ND RESPONDENT.| |EXT.P13|:|TRUE COPY OF THE ORDER DATED 17.01.2007 ISSUED| |||BY THE SECOND RESPONDENT.| ## **WP(C).No. 5685 of 2007(E)** EXT.P14 : TRUE COPY OF THE ORDER OF ASSESSMENT AND ISSUED BY THE SECOND RESPONDENT. EXT.P15 : TRUE COPY OF THE DEMAND ISSUED BY THE SECOND RESPONDENT. EXT.P16 : TRUE COPY OF THE CIRCULAR ISSUED BY THE FIRST RESPONDENT. EXT.P17 : TRUE COPY OF THE ELECTRICITY BILL FOR AN AMOUNT OF RS. 1528/- AND RS.365/- DATED 14.11.06. EXT.P18 : TRUE COPYT OF THE ELECTRICITY BILL FOR AN AMOUNT OF RS. 365/- AND RECEIPT OF BUILDING TAX FOR AN AMOUNT OF RS.2533/- DATED 14.11.2006. EXT.P19 : TRUE COPY OF THE BUILDING TAX FOR AN AMOUNT OF RS.1146/- DATED 14.11.2006 AND ELECTRICITY RECEIPT FOR AN AMOUNT OF RS.410/EXT.P20 : TRUE COPY OF THE BUILDING TAX FOR AN AMOUNT OF RS.1146/- DATED 14.11.2006 AND ELECTRICITY RECEIPT FOR RS.345/EXT.P21 : TRUE COPY OF THE ELECTRICITY RECEIPT FOR RS.75/- AND BUILDING TAX RECEIPT DATED 14.11.06 FOR RS. 510/- /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. **W.P.(C) No. 5685 OF 2007** ......................................................................... **Dated this the 5[th] January, 2010** ## **J U D G M E N T** The petitioners are aggrieved of the assessment of the building complex as a single unit under the Kerala Building Tax Act, demanding huge amounts stated as due , after rejecting the case put forth by the petitioners that the building belongs to different owners and that the cost of construction was met by the parties concerned as arranged by them; thus eligible for the benefit of Explanation 2 to section 2 (e) of the Act. 2. The case of the petitioners is that the building was constructed as required by the different prospective owners, who are having common undivided interest in the land, on the basis of separate construction agreements executed in this regard. A specimen copy of the sale agreement in respect of the undivided interest in land has been produced as Ext.P1; while a copy of the construction agreement executed between the parties is produced as Ext. P2. **2** ## _**W.P.(C) No. 5685 OF 2007**_ 3. The learned Counsel for the petitioners submits that the assessing authority passed Ext. P13 assessment order after rejecting the claim put forth by the petitioners to have separate assessments, holding that the petitioners did not produce the requisite documents to sustain separate assessment. It is also contended that the assessing authority was not right in rejecting the construction agreements for want of registration under the Registration Act. 4. At the time of admission, the coercive steps stated as being pursued against the petitioners were intercepted, on condition that the petitioners remitted a sum of Rs. 10000/-, which is stated as satisfied and accordingly, the interim order was being extended from time to time . The second respondent has filed a counter affidavit specifically contending in paragraph No. 3 that, after passing the assessment order in respect of the residential complex having an area of 1214 Sq. M, the parties concerned remitted a sum of Rs.1,20,600/- in four quarterly installments before the Village Officer, Vazhakkala and that the _**W.P.(C) No. 5685 OF 2007**_ **3** Writ Petition has been filed only there after. The prayer of the petitioners to have separate assessment is vehemently opposed asserting that the parties failed to prove that the ownership of different portions is vested with different persons and that the cost of construction was jointly met by all flat owners, by producing necessary documents. The above contention is sought to be rebutted by the petitioners by filing a reply affidavit and also producing Exts. P17 to P21 showing separate electricity bills and some other documents to show the true state of affairs as to the actual ownership over the building . 5. By virtue of the explanation 2 to Section 2 (e) of the Kerala Building Tax Act, separate portions of a flat complex are liable to be assessed separately, if different persons are the owners of different portions and the cost of construction has been met jointly by the parties concerned. The law in this regard has been made clear by this Court in _**Kurian George vs. Tahsildar (**_ 1995(2) KLT 457). This being the position, the only question that remains to be considered is whether the assessing ## _**W.P.(C) No. 5685 OF 2007**_ ## **4** authority was right in rejecting the documents stated as produced by the petitioners, particularly the construction agreement, for the reason that it was not registered under the Registration Act . 6. It appears that reliance has been placed to Ext. P16 Circular issued by the Government giving instructions to all concerned, that the construction agreements are necessarily to be registered, if at all they are to be reckoned by statutory authorities concerned while fixing the liability under the Building Tax Act, making it clear that unregistered documents cannot be considered under any circumstances. It is submitted by the learned counsel for the petitioners that sustainability of the said Circular was questioned before this Court and as per the judgment in _**Bavasons Constructionsa (P) Ltd. vs. State of Kerala**_ [ **2007 (3) KLT 101]** , the said circular was set aside by this Court. Even otherwise, the documents which are liable to be registered under the Registration Act are specifically dealt with under Section 17 of the Registration Act; which does not **5** ## _**W.P.(C) No. 5685 OF 2007**_ include any such construction agreement. Similarly, no agreement for sale is also liable to be registered, as it is alien to the statutory prescription, as made clear by the Apex Court on many an occasion. 7. In the above facts and circumstances, even though it is stated from the part of the second respondent in paragraph No.3 of the counter affidavit that the liability to an extent of Rs. 1,20,600/- as specified in Ext.P13 assessment order and shown in Ext.P14 and P15 demand notices has been satisfied by the parties by way of 4 equal monthly installments , the matter, particularly with regard to the liability of the petitioners require to be re-considered by the second respondent, since the petitioners have already remitted a sum of Rs.10000/- pursuant to the interim order passed by this court on 20.02.2007. 8. In the above facts and circumstances the petitioners are permitted to file a representation before the second respondent for claiming refund of the amount of Rs.10000/- stated as paid by them, if the entire liability under Ext.P13 to P15 proceedings **6** ## _**W.P.(C) No. 5685 OF 2007**_ including the cost and interest has been realized. If any such representation is filed within two weeks, the same shall be considered and finalized after giving an opportunity of hearing to the petitioners as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of the judgment and the refund, if any, shall be made within 3 months thereafter . The Writ Petition is disposed of. **P.R. RAMACHANDRA MENON, JUDGE.** lk