T. T. Joy, T. P. Varghese, C. Y. Meeran v. The Tahsildar, Kunnathunad; The Revenue Divisional Officer, Muvattupuzha; The Village Officer, Perumbavoor; Addl. R4 to Addl. R14

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY,THE 18TH DAY OF DECEMBER 2019/27TH AGRAHAYANA,1941** ## **WP(C).No.26706 OF 2013(K)** ## **PETITIONERS:** |**1**|**T.T.JOY**| |---|---| ||**THOMBRA HOUSE, PULLUVAZHY P.O., PERUMBAVOOR,**| ||**PIN 683541.**| |**2**|**T.P.VARGHESE**| ||**THOMBRA HOUSE, KANDANTHARA, ALLAPRA P.O.,**| ||**VENGOLA, PIN 683554.**| |**3**|**C.Y.MEERAN**| ||**CHENTHARA HOUSE, KANDANTHARA, ALLAPRA P.O.,**| ||**VENGOLA, PIN 683554.**| ||**BY ADV. SRI.WILSON URMESE**| ## **RESPONDENTS:** - **1 THE TAHSILDAR, KUNNATHUNAD KUNNATHUNAD, PERUMBAVOOR P.O., PIN 683542.** - **2 THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA, MUVATTUPUZHA P.O., PIN 686661.** - **3 THE VILLAGE OFFICER PERUMBAVOOR, PERUMBAVOOR P.O., PIN 683542.** - **4 ADDL.R4 FATHIMA LATHIEF VARIKKADAN HOUSE, THANDEKKADU, VENGOLA P.O, PERUMBAVOOR, PIN-683554.** - **5 ADDL.R5 C.Y SIDIQUE CHENDHARA HOUSE, KANDANTHARA, VENGOLA P.O, PIN683554.** - **6 ADDL.R6 LEELA VARGHESE THOMBRA HOUSE, , KANDANTHARA, VENGOLA P.O, PIN683554.** W.P.(C).No.26706/13 2 - **7 ADDL.R7 B.KAMAL MELETH HOUSE, , KANDANTHARA, VENGOLA P.O, PERUMBAVOOR, PIN-683554.** - **8 ADDL.R8 A.A MUHAMMED ALANGAL HOUSE, , KANDANTHARA, VENGOLA P.O, PIN683554.** - **9 ADDL.R9 M.M UMMER MUNDACKAL HOUSE, PALLIKAVALA, PALLIPURAM KARA, PERUMBAVOOR, PIN-683542.** - **10 ADDL.R10 KARAMSHI PATTEL BHAVANI HOUSE, IRINGOLE P.O, PERUMBAVOOR, PIN683548.** - **11 ADDL.R11 K.O JOSEPH KALAMPARAMBIL HOUSE, IRINGOLE P.O, PERUMBAVOOR, PIN-683548.** - **12 ADDL.R12 T.T RAJAN THOMBRA HOUSE, PULLUVAZHY P.O., PERUMBAVOOR, PIN-683541.** - **13 ADDL.R13 ABDUL LATHIEF VARIKKADAN HOUSE, THANDEKADU, VENGOLA, PERUMBAVOOR, PIN-683554.** - **14 ADDL.R14 PREMJI PATTEL BHAVANI HOUSE, IRINGOLE P.O, PERUMBAVOOR, PIN683548. (ADDL.R4 TO R14 ARE IMPLEADED AS PER ORDER DATED 05/11/2013 IN IA.14747/2013)** ## **R1 BY GOVERNMENT PLEADER** - **R1 BY ADV. SRI.LEGITH T.KOTTAKKAL R1 BY ADV. SRI.S.VINOD BHAT** ## **OTHER PRESENT:** **SR. GP. SHRI. T.K. GOVINDAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3.12.2019, THE COURT ON 18.12.2019 DELIVERED THE FOLLOWING:** W.P.(C).No.26706/13 3 ## **JUDGMENT** **Dated this the 18[th] day of December 2019** 1. Challenge in this writ petition is against Exhibit P6, order of assessment under the Kerala Building Tax Act, 1975. 2. Heard the learned counsel for the petitioners and the learned Government Pleader appearing for the respondents. 3. The petitioners, who claim to be the power of attorney holder of the owners of three items of property had approached this Court repeatedly challenging the orders of assessment to building tax issued against them. It is submitted that this Court had found that the assessment of the entire building as a single unit without considering the contention that the tax was to be assessed separately in respect of the units contained therein had been accepted by this Court. It is submitted that in the second round of litigation before this Court, by Exhibit P4 judgment, the contention of the petitioners was accepted and the assessment order was set aside. There was a direction to W.P.(C).No.26706/13 4 the assessing authority to consider the relevant aspects and to conduct the assessment afresh. It is submitted that an assessment was effected, which was again subjected to challenge before this Court. By Exhibit P5 judgment, the petitioners were given a further opportunity to adduce evidence to the effect that the construction had been effected separately in view of the decision of this Court in Bavasons Constructions (P) Ltd.v. State of Kerala [2007 (3) KLT 10]. The petitioners as well as the owners of the units had been put on notice and Exhibit P6 proceedings had been issued by the assessing authority which is under challenge. The petitioners challenge Exhibit P6 on the ground that relevant factual aspects has not been taken into consideration. 4. The learned counsel places reliance on decision of the Apex Court in State of Kerala v. Mammikuty [2015 (3) KLT 138] is Court to contend that since the properties were different and distinct units comprised in the same building, the assessment order issued against the petitioners was illegal and improper. It is contended that the petitioners were only Power of Attorney W.P.(C).No.26706/13 5 holders and not the owners of the land or any of the units situated therein and that as such, they could not be proceeded against in terms of the Act. 5. A detailed counter affidavit has been placed on record by the respondents. It is contended by the learned Senior Government Pleader that the issue raised by the petitioners stand covered by the decisions of this Court. It is stated that in view of the specific definition of 'owner' as contained in Kerala Building Tax Act, the contentions raised by the petitioners are completely untenable. It is further contended that as directed in Exhibit P5 judgment, the petitioners had been granted a further chance to adduce evidence to show that the building had been separately constructed for and on behalf of the separate owners of the individual units. However, no such evidence is produced by the petitioners to prove the claim. The unit holders who appeared in pursuance to the notice having been issued to them specifically contended that the building had been constructed by the petitioners. W.P.(C).No.26706/13 6 ## 6. I have considered the contentions advanced. Section 2(e) of the Kerala Building Tax Act, 1975 defines the building as under:- (e)”building” means a house, out-house, garage, or any other structure or part thereof, whether of masonry bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure. Explanation 2 of the Section 2(e) reads as follows:- Explanation 2- Where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building. 7. This Court in Bavasons Constructions (P) Ltd.v. State of Kerala [2007 (3) KLT 10] has held that while making an assessment of a building having separate units under the Act, the assessing officer is to issue notice to the separate allottees and consider whether the separate units come within the requirements of the Explanation to Section 2(e). In the absence of evidence to show that the units meet the requirement of the Explanation, the building is to be assessed as a whole. In Varghese P.D v. State of Kerala and others [2013 (2) KLT 831], a Division Bench ## W.P.(C).No.26706/13 7 of this Court held that in order to claim the benefit of Explanation 2, it must be proved that the building consists of different units owned by different persons and the cost of construction of the building was met by all such persons jointly. Where units are constructed and sold as ready to occupy units and in the absence of convincing evidence that construction was carried out based on the contributions made by the owners of the unit, no benefit of Explanation 2 can be granted. 8. The petitioners' contentions with regard to the claim that the building was to be separately assessed to building tax against the separate owners of the property had been considered in Exhibit P4 judgment. It appears that a further assessment was undertaken. The petitioners again challenged the said assessment. This Court, in Exhibit P5 judgment, refused to interfere the order of assessment. However, the petitioners have been granted a further opportunity to adduce evidence to show that the building had been constructed out of funds generated by the owners of the different units. It appears from Exhibit P6 that notices have been issued to the owners of the W.P.(C).No.26706/13 8 building, some of whom appeared before the assessing authority. It has been specifically referred in the impugned order that they have submitted that they had not expended any amounts for the construction of the building and that they had purchased portions of the building as completed units. The respondents had also considered the contention of the petitioners that they are not the owners of the building or the lands with specific reference to the definition of 'owner' as contained in the Kerala Building Tax Act. The decision of the Apex Court referred to by the learned counsel for the petitioners specifically considers the charge of luxury tax under Section 5A of the Kerala Building Tax Act, 1975 which starts with a non obstante clause. It was held that the Explanation to Section 2(e) has to be read in consonance with the proviso to Section 2(k) and would subservient to Section 5A which is a charging section for the purpose of luxury tax. It was in the above context it was held that separate apartments owned by different individuals are to be separately assessed for the purpose of luxury tax. W.P.(C).No.26706/13 9 9. Having considered the contentions advanced and having perused the order of the Assessing Authority, I am of the opinion that the assessing authority has considered the relevant aspects of the matter and arrived at the conclusion that the petitioners are liable to pay building tax in respect of the entire building, assessing the building as single unit, since no evidence could be adduced to support the contention that the building was constructed for and on behalf of the separate unit holders. In the above view of the matter, the prayers sought for cannot be granted. Since the liability to pay building tax arises when the construction of the building is effected, the petitioners, who had carried out such construction on the strength of power of attorney granted by the owners cannot contend that they had no liability to pay the building tax since they would come within the definition of 'owners' as contained in the Act. The writ petition fails and the same is accordingly dismissed. 10.It is submitted by the learned counsel for the petitioners that since prior orders of assessment had been set aside by Exhibit 10 ## W.P.(C).No.26706/13 P4, the interest should run only with effect of the date of Exhibit P6 order. I notice that the earlier order of assessment had been set aside by Exhibit P4 judgment. Therefore, the interest would run from the date on which the fresh order of assessment had been rendered after Exhibit P4 judgment. Payments made by the petitioners towards building tax in respect of the building in question shall be given due credit to, taking note of the dates on which such payments have been effected. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1**|**EXHIBIT-P1: TRUE COPY OF THE POWER OF**| |---|---| ||**ATTORNEY NO.35/1993 OF SRO, PERUMBAVOOR.**| |**EXHIBIT P2**|**EXHIBIT-P2: TRUE COPY OF THE POWER OF**| ||**ATTORNEY NO.33/1993 OF SRO, PERUMBAVOOR.**| |**EXHIBIT P3**|**EXHIBIT-P3: TRUE COPY OF THE POWER OF**| ||**ATTORNEY NO.30/1993 OF SRO, PERUMBAVOOR.**| |**EXHIBIT P4**|**EXHIBIT-P4: TRUE COPY OF THE JUDGMENT DATED**| ||**05.01.2007 IN O.P.NO.16839/2001 OF THIS**| ||**HON'BLE COURT OF KERALA.**| |**EXHIBIT P5**|**EXHIBIT-P5: TRUE COPY OF THE JUDGMENT DATED**| ||**05.06.2012 IN W.P.C.NO.16850/2007 OF THIS**| ||**HON'BLE COURT OF KERALA.**| |**EXHIBIT P6**|**EXHIBIT-P6: TRUE COPY OF THE ORDER G-**| ||**1/9422/9B DATED 14.08.2013 OF THE 1ST**| ||**RESPONDENT.**| True copy PS to Judge