N. Jagadisan Nair & E.N. Pankajakshi Amma v. The District Collector, Kottayam; Tahsildar, Chengannacherry Taluk; Revenue Divisional Officer, Kottayam; Village Officer, Karukachal; State Bank of India (Addl. R5)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **WA.No.224 OF 2017** **AGAINST THE JUDGMENT DATED 22-11-2016 IN WPC 11568/2016 OF HIGH COURT OF KERALA** ## **APPELLANTS :** |**1**|**N.JAGADISAN NAIR,**| |---|---| ||**S/O.LATE NARAYANA KURUP,**| ||**AGED 72 YEARS, RESIDING AT SREEVILASAM THOPPIL,**| ||**KARUKACHAL, KOTTAYAM – 686 540.**| |**2**|**E.N.PANKAJAKSHI AMMA,**| ||**W/O.LATE NARAYANA KURUP,**| ||**AGED 97 YEARS, RESIDING AT SREEVILASAM THOPPIL,**| ||**KARUKACHAL, KOTTAYAM – 686 540.**| **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS :** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**KOTTAYAM – 686 001.**| |**2**|**THE TAHSILDAR,**| ||**CHENGANACHERRY TALUK,**| ||**CHENGANACHERRY – 686 101.**| |**3**|**THE REVENUE DIVISIONAL OFFICER**| ||**KOTTAYAM – 686 001.**| |**4**|**THE VILLAGE OFFICER**| ||**KARUKACHAL VILLAGE,**| ||**KOTTAYAM – 686 540.**| **WA.No.224 OF 2017** 2 *** ADDL.R5 IMPLEADED** **5 STATE BANK OF INDIA, KARUKACHAL, VALLOOR BUILDING, KARUKACHAL P.O., KOTTAYAM - 686 540.** **ADDL. R5 IMPLEADED AS PER ORDER DATED 29.05.2020 IN WA.224/2017.** **R1-4 BY GOVERNMENT PLEADER(B/O)SRI.SHAMSUDDIN K. R5 BY ADV. SMT.DEEPA NARAYANAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No.224 OF 2017** 3 ## **JUDGMENT** Dated this the 12th day of January 2021 ## **Bechu Kurian Thomas, J.** The tax imposed under the Building Tax Act, 1975 (for short, 'the Act') after assessment carried out by the authorities, as confirmed by the appellate as well as the revisional authorities were challenged before this Court. The learned Single Judge disposed of the writ petition with a direction to reconsider the orders to the extent it related to the 2[nd] appellant and confirmed the assessment order as relating to the first appellant. Appellants challenge the judgment of the learned Single Judge. 2. First appellant claims to have constructed a residential cum commercial building having three floors along with his son and wife. However, when the building was assessed to tax under the Act, as having been completed in 2005-06, the building was treated as a single building constructed by the first appellant while another small building near the building of the first appellant was assessed as constructed by the 2[nd] appellant. It is alleged that the order of the assessing authority was confirmed in appeal as well as in revision, **WA.No.224 OF 2017** 4 without taking note of the reality that the building in the 2[nd] floor was constructed as two apartments, constructed and owned by the first appellant's son. The writ petition was filed assailing the findings of the authorities under the Act, who refused to treat the multi storied building as consisting of different apartments or flats owned by different persons, the cost of construction of which was met by the different owners as explained in Explanation (2) to Section 2(e) of the Act. As the building with separate apartments having independent existence and the cost of construction having been met by different owners, it was contended that the building ought to have been assessed separately. 3. The learned Single Judge, by the impugned judgment, affirmed the finding of the statutory authorities that the entire building ought to be treated as owned by the first appellant liable to be taxed as a single building. However, the learned Single Judge, in relation to the inclusion of a building having an area of 181.03 Sq.mtrs.in the name of the second appellant set aside the findings and directed the statutory authorities to pass fresh orders. 4. The learned counsel for the appellant Sri.T.C.Suresh Menon, vehemently argued that, as per Explanation (2) to Section 2 of the Act, when a building consisting of different apartments owned by **WA.No.224 OF 2017** 5 different persons and the cost of constructions are met by all of them jointly, each such apartment are liable to be assessed separately. The learned counsel relied upon the decision reported in _**District Collector v. Sreekumari Kunjamma [2011 (1) KLT 248 (F.B.)**_ and contended that the buildings squarely fall within the Explanation to Section 2 (e) and the learned Single Judge ought to have directed assessment of the building as separate for the first appellant and his son. 5. The learned Government Pleader Adv. K.Shamsuddin, on the other hand, contended that the learned Single Judge was totally justified in rejecting the case of the writ petitioner, especially since, no material was available before the assessing authority to prove the ownership of the 2[nd] floor of the building on the son of the first appellant. It was further submitted that the applicability of Section 2(e) to Explanation (2) is not intended to cover cases of this nature wherein the parties are attempting to evade the due process of law. According to the learned Government Pleader, the attempt to separate the ownership of the building in favour of the first appellant's son, is nothing but a facade, for taking undue benefit under the statute. 6. We are concerned with the tax imposed under the Act. **WA.No.224 OF 2017** 6 The tax imposed under the Act is a one time tax, levied on the completion of construction of a building. It is no longer in dispute that separate assessment of each and every flat or apartment is called for only in respect of the constructions covered by Explanations (1) and (2) of Section 2(e). It is also settled that irrespective of the number of flats or apartments contained in a building, it should be assessed as a single unit and the exceptions arise only if the building satisfies Explanations (1) and (2) to Section 2(e). As held by the Full Bench in _**District Collector v. Sreekumari Kunjamma's case**_ (supra), the incidence of building tax is on completion of construction of the building and it is immaterial as to whether the owner retains the building or transfers the same in full or in part or in pieces after construction. As observed by the learned Single Judge, in normal circumstances, a building is to be treated as a single block. 7. Even though under the Indian law, the land can be owned by one person and the superstructure by another person, it is a matter which has to be established that the super structure or a part of it belongs to another person, other than the owner of the land. The taxing authorities have, after enquiry come to the conclusion that the property is owned by the first appellant and no materials are available to show that the building or a part of it is owned by the first **WA.No.224 OF 2017** 7 appellant's son. The building was constructed prior to 2006 and hence there was no necessity of any building permit but it was essential to have a no objection certificate for construction. The original No Objection Certificate issued by the local authority prior to construction is not seen produced. No evidence is produced to prove that the son of the first appellant contributed to the construction of the apartment. Even though before us, certain documents have been subsequently produced in an attempt show that a loan was applied for by the first appellant along with his son and wife as co-applicants to justify the claim that the building was constructed by the first appellant and his son jointly, so as to gain the benefit of Explanation (2) to Section 2(e). A perusal of the said exhibits show that the application for loan was made only in 2007 while notice for assessment was originally made by the Tahsildar as early as on 21.11.2005 which indicates that the application for loan in the name of the son of the first appellant was only an afterthought. Apart from the aforesaid loan application and the consequent sanction of loan, there are no materials available to show, that, any part of the building belongs to the son of the first appellant also. In such circumstances, we are of the view that the judgment of the learned Single Judge is perfectly justified and does not warrant any interference. **WA.No.224 OF 2017** 8 We however make it clear that if in respect of any future change of ownership of the whole or any part of the building if takes place, the same can be brought to the notice of the appropriate authority for the purpose of reducing the recurring tax liability if any, for such subsequent periods. Reserving the liberty of the appellant as mentioned above, this writ appeal is dismissed. Sd/ **S.V.BHATTI, JUDGE** Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM