Pauloose K. Cherian and Roy Cherian v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930** **WP(C).No. 18941 of 2004(E)** **-------------------------------------** **PETITIONER:** ## **-----------------** ## **1. PAULOSE K. CHERIAN,** - **S/O. LATE K.C. CHERIAN, KARITHADATHIL HOUSE, PIRAVOM.** ## **2. ROY CHERIAN, S/O. LATE K.C. CHERIAN,** **KARITHADATHIL HOUSE, PIRAVOM.** ## **BY ADV. SRI.K.JAJU BABU** **SMT.M.U.VIJAYALAKSHMI** **RESPONDENTS:** ## **----------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT GOVT.SECRETARIAT, TRIVANDRUM.** ## **2. THE DISTRICT COLLECTOR, ERNAKULAM.** **3. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA.** ## **4. THE TAHSILDAR, MUVATTUPUZHA.** **BY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).18941/2004-E** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF ORDER OF ASSESSMENT VIDE NO.C5-6260/2000 DATED 15/02/2001 ISSUED BY THE 4TH RESPONDENT.** **EXT.P2: COPY OF PROCEEDINGS OF THE 3RD RESPONDENT DATED 17/12/2001 VIDE NO.K.DIS. 2269/01/A7.** **EXT.P3: COPY OF JUDGMENT DATED 01/08/2002 IN O.P. NO.21849/2002 OF THIS HON'BLE COURT.** **EXT.P4: COPY OF ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE ADM DATED 08/11/02.** **EXT.P5: COPY OF ORDER DATED 21/11/2002 VIDE ORDER NO.K.DIS.41102/02/B10 ISSUED BY THE 2ND RESPONDENT.** **EXT.P6: COPY OF ORDER NO.35653/SLMC3/RD DATED 27/04/2004 ISSUED BY THE PRL. SECRETARY TO GOVERNMENT.** ## **RESPONDENT'S EXHIBITS: NIL** ## **// TRUE COPY //** ## **Rs/** ## **T.R.RAMACHANDRAN NAIR, J.** ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C). No.18941/2004-E ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 22[nd] day of July, 2008 ## **J U D G M E N T** The challenge is against the orders passed by the authorities under the Building Tax Act. The question involved is with regard to the eligibility for assessment of the building in question which is a commercial building having three floors. 2. The petitioners herein are owners of 4.875 cents of land in Survey No.731/17/2 of Piravom Village. 3. The case of the petitioners is that they along with five others purchased 19.5 cents of land as per separate document Nos.2415 to 2418, dated 15/12/1980, and the owners of the properties covered by the documents are paying tax separately in their names. In each floor of the building there are four separate rooms with separate access and separate rolling shutters. The three storied building was constructed by separate owners as multi-storied building. The local Grama Panchayat assessed Property Tax treating each room as independent and separate and, accordingly, separate numbers have also been given. 4. The Tahsildar assessed the building as a single building and imposed building tax to the tune of Rs.59,400/-. Thereafter, the parties _W.P.(C).NO.18941/2004-E_ ## _-:2:-_ approached the appellate authority through an appeal, which was dismissed without any proper consideration. A revision was filed which was also rejected and, ultimately, the petitioners approached this Court by filing O.P No.21849/2002 and this Court by judgment dated 01/08/2002 directed the revisional authority to dispose of the matter afresh. Before the revisional authority, namely, the District Collector, Ext.P4 argument notes were produced along with the required documents mentioned therein. As regards the principles to be followed in respect of such assessments, the petitioner relied upon various decisions of this Court including **Bhattathiripad vs. Tahsildar [1994 1 KLT 790]** . But while passing order, none of these aspects have been considered by the District Collector. A reading of the order shows that the contentions have been rejected by finding that, concrete evidence that the building in question is constructed and owned separately by them have not been produced. But no mention is made to the documents produced by the petitioner, namely, the title deeds, the property tax receipts, the assessment by the Grama Panchayat as well as the Property Tax Assessment made by the local authority. When these documents were relied upon, the revisional authority was bound to consider them on its merits, since it is claimed by the petitioners that they will reflect separate title and ownership of the building. Strangely, it is also stated that the petitioners could not apportion either the _W.P.(C).NO.18941/2004-E_ ## _-:3:-_ building or the land in which the building has been erected before the verification officer or before the assessing authority before the assessment of the building tax. This is totally a strange reason. The order according to the learned counsel for the petitioner is a cryptic order which has been issued without going into detail. It is also stated that the Additional District Magistrate heard the matter but the order has been passed by the District Collector. 5. Going by the para 6 of the decision, viz. Bhattathiripad's case, the authority was bound to consider whether the structure as now claimed by each of the co-owners can be assessed as a separate unit. For easy reference, I quote para 6 of the judgment :- “6. The consolidation of nineteen returns into one, and the assessment of the entire building as a single unit, is also not warranted either in law or on the facts of this case. As per the partition effected between the parties, which is recorded in Ext.P1, each of the nineteen persons is entitled to a defined identified portion of the 77.5 cents of land. Nothing has been pointed out to discredit the genuineness of the oral partition or its validity. The portion of the building claimed by each member stands on his share of the land. It is true that the entire building is one in the sense that it is a continuous one with common wall separating the portions of two adjoining owners. But otherwise, each of the _W.P.(C).NO.18941/2004-E_ _-:4:-_ nineteen persons is the owner of the shop rooms standing on the share of the property allotted to him. In such circumstances, I am of the opinion that even without resort to Explanation 2 to S.2(e) of the Act, the portions of the building belonging to each are liable to be assessed only separately and not as one single consolidated building. Building is defined in S.2(e) as including a part thereof and therefore the total structure comprising of sixty seven shop rooms, though structurally one, constitutes different buildings in the hands of the respective owners, for the purposes of the Act. This is no a case where the structure is put up on co-ownership property, with each one of the co-owners claiming a portion of the building as his, though the land on which that portion stands is held in co-ownership. This is a case where each of the owners is the owner of the building as well as the land on which it stands, so that his title to the building is absolute and complete. He is the exclusive owner thereof. None of the owners of portions of the structure, has any right over the portions of the building held by the others. The building in its entirety does not belong to the nineteen persons together, merely because they are owners of portions thereof, any more than it can be said that street-houses in a Palakkad Agraharam or elsewhere belong jointly to all the citizens of the village. Since each of the nineteen persons is the owner of separate defined portion of _W.P.(C).NO.18941/2004-E_ ## _-:5:-_ the building with full title thereto, it has to be assessed in his hand separately. The assessment of the building in the hands of all the nineteen owners as a consolidated unit is not warranted by the provisions of the Act. As I stated earlier, this result follows even without resort to Explanation 2 to S.2 (e), the applicability of which was disputed by the Government Pleader.” 6. The above decision is upheld by the decision in **Lissy v.Tahsildar [2000 (3) KLT 497]** . Therefore, the District Collector is bound to consider the binding principles while disposing of the revision petition and to consider whether on the facts of this case the reliance placed on those principles is applicable. Inspite of the fact that the attention of the District Collector was invited to the principles rendered by the various decisions of this Court in Ext.P4, nothing has been discussed in Ext.P5. Therefore, Ext.P5 has been passed without any application of mind and without considering the relevant materials relied upon and produced by the petitioner. In that view of the matter, I quash Ext.P5. Therefore, there will a direction to the District Collector to re-hear the revision petition with notice to the revision petitioners and after affording them a reasonable opportunity for hearing them. Needless to state that the District collector will consider the materials produced by the petitioners individually and in the light of the principles _W.P.(C).NO.18941/2004-E_ _-:6:-_ laid down by this Court in various decisions referred to above final orders shall be passed within a period of five months from the date of receipt of a copy of this judgment. The claim for refund of tax already paid will depend upon the outcome of the order of the revisional authorities. Till the disposal of the revision petition, the interim order passed by this Court will continue. The writ petition is disposed of as above. No costs. **T.R.RAMACHANDRAN NAIR, Judge** ms