High Court of KeralaSingle Judge2012-06-05Disposed of with directions to furnish necessar...

T.P. Varghese, C.Y. Meeran and T.T. Joy v. The Tahasildar, Kunnathunadu Taluk, Perumbavoor and The R.D.O., Muvattupuzha

Case / Petition Number:WP(C).No. 16850 of 2007 (E)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. R. Ramachandra Menon
Judgment Date: 2012-06-05
Court Decision / Holding: The writ petition is disposed of, giving one more chance to the petitioners to establish all the facts and figures by producing the relevant materials before the assessing authority within one month from this date. If furnished, the same shall be considered and disposed of following the procedure prescribed by Bavasons Constructions (P) Ltd. v. State of Kerala, with a speaking order, and finalised at the earliest, but in any case within three months thereafter. The court also notes the need for proper notices and precise particulars to determine separate liability and directs accordance with prior judgments (Ext. P19) to ensure compliance.
Final Disposition: Disposed of with directions to furnish necessary particulars and to pass a speaking order within a defined time frame, following Bavasons’ principles.

Parties to the Case

Appellants / Petitioners

T.P. Varghese
C.Y. Meeran
T.T. Joy

Respondents

The Tahasildar, Kunnathunadu Taluk, Perumbavoor
The R.D.O., Muvattupuzha

Legal Representation & Advocates

Counsels for Petitioners

• Adv. P. Ali

Counsels for Respondents

• SPL.Government Pleader (Taxes) D. Sebastian Champappally

Case Synopsis & Summary

The petition challenges the fixation of liability under the Kerala Building Tax Act, arguing that the building, though constructed under several construction agreements, constitutes multiple units corresponding to 56 owners. The petitioners rely on Exts P1–P3 (power of attorney), Exts P8–P9 (sale and construction agreements) and Exts P10–P13 (details of owners and undivided land interests) to show that funds and construction were arranged on a per-owner basis, not as a single unit. They contend that Explanation 2 to Section 2(e) of the Kerala Building Tax Act warrants separate assessment, and seek a speaking order to reflect the true facts, including separate electricity and water connections and separate property tax details. The assessment, Ext.P15, treated the building as a single unit, which led to a dismissal of their appeals (Ext.P16) and later directions to redo the assessment (Exts.P17–P19). The respondents concede lack of separate notices and complete particulars but maintain that the materials do not prove separate funds. The court refers to Bavasons Constructions (P) Ltd. v. State of Kerala for the procedure and Lissy v. Tahsildar for related jurisprudence, and disposes the petition with a time-bound plan for a speaking order, allowing one month to furnish necessary particulars and three months to finalise the matter.

Provisions of Law Cited

Kerala Building Tax ActExplanation 2 to Section 2(e) of the Kerala Building Tax Act

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicants contend that the construction was funded and executed by multiple owners through separate agreements, with deeds and plans (Exts P1–P3, P8–P13) showing distinct ownership interests. They insist that Explanation 2 to Section 2(e) of the Kerala Building Tax Act mandates separate assessment for each owner/fund, and that an opportunity should be given to present evidence of separate funds and infrastructure connections. They request a speaking order as per Bavasons’ principle to reflect true facts and separate liability, and undertake to furnish missing particulars (water/electricity connections, property tax details) before the assessing authority.

Contentions of Respondents

Respondents concede no separate notices were issued due to gaps in address particulars, and that no conclusive proof has been produced of separate funds. They maintain the materials do not establish separate funding or units and that the building has been built as a single structure. They acknowledge the need for a speaking order but contend the onus is on petitioners to produce adequate particulars; the department has complied with due process to the extent possible and must be guided by prior judicial directions to re-examine with proper particulars.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Bavasons Constructions (P) Ltd. v. State of Kerala	2007(3)KLT 101	Positive	Court relies on Bavasons to require a 'speaking order' and proper re-assessment procedure in light of disputed facts.
Lissy v. Tahsildar	2000(3)KLT 497	Mentioned Only	Cited as prior authority in discussing related principles; the controlling directive in this case is Bavasons, with Lissy referenced as context rather than as the primary ruling.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934** ## **WP(C).No. 16850 of 2007 (E)** ## **---------------------------** ## **PETITIONER(S):** ## **-------------** **1. T.P.VARGHESE, THOMPRA HOUSE, KANDATHARA, ALLAPRA,PERUMBAVOOR ERNAKULAM DISTRICT.** **2. C.Y.MEERAN, CHENTHARA HOUSE, KANDATHARA, ALLAPRA,PERUMBAVOOR ERNAKULAM DISTRICT.** ## **3. T.T.JOY, THOMPRA HOUSE, PULLYVAZHY P.O.,PERUMBAVOOR, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.P.ALI** ## **RESPONDENT(S):** ## **--------------** **1. THE THAHASILDAR, KUNNATHUNADU TALUK,** - **PERUMBAVOOR.** ## **2. THE R.D.O.,** - **MUVATTUPUZHA.** ## **BY SPL.GOVERNMENT PLEADER (TAXES) D SEBASTIAN CHAMPAPPALLY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 16850 of 2007 (E)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1: A TRUE COPY OF THE POWER OF ATTORNEY HOLDER NO.33/10/1993 EXT.P2: A TRUE COPY OF THE POWER OF ATTORNEY HOLDER NO.30/10/1993 EXT.P3: A TRUE COPY OF THE POWER OF ATTORNEY HOLDER NO.35/10/1993 EXT.P4: A TRUE COPY OF THE SALE DEED NO. 470/1993 EXT.P5: A TRUE COPY OF THE SALE DEED NO. 450/93 EXT.P6: A TRUE COPY OF THE SALE DEED NO. 446/1993 EXT.P7: A TRUE COPY OF THE PLAN BEFORE THE PERUMBAVOOR MUNICIPALITY AND THE GCDA. EXT.P8: A TRUE COPY OF THE AGREEMENT FOR SALE DATED 15/7/93 EXT.P9: A TRUE COPY OF THE LABOUR CONTRACT AGREEMENT DT.30/7/93 EXT.P10: A TRUE COPY OF THE DETAILS OF BLOCK A EXT.P11: A TRUE COPY OF THE DETAILS OF BLOCK D EXT.P12: A TRUE COPY OF THE DETAILS OF BLOCK E EXT.P13: A TRUE COPY OF THE SALE DEED NO.716/95 EXT.P14: A TRUE COPY OF THE RETURN. EXT.P15: A TRUE COPY OF THE ASSESSMENT ORDER DATED 19/9/98 EXT.P16: A TRUE COPY OF THE APPELLATE ORDER OF THE 2ND RESPONDENT DT.10/3/2000 EXT.P17: A TRUE COPY OF THE JUDGMENT O.P.NO.15090/2000 DT 5/10/2001 EXT.P18: A TRUE COPY OF THE ORDER DATED 15/5/2001 EXT.P19: ATRUE COPY OF THE JUDGMENT IN W.P. 16889/01. EXT.P20: A TRUE COPY OF THE REPRESENTATION DTD.27/2/2007 EXT.P21: A TRUE COPY OF THE IMPUGNED ORDER DT.27/3/2007 EXT.P22: A TRUE COPY OF THE ACCOUNT BOOK D BLOCK RESPONDENTS EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE.** ## **dlk** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No.16850 OF 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of June , 2012 ## **JUDGMENT** Fixation of liability under the Kerala Building Tax Act is in dispute. The challenge is in respect of the assessment as a 'single unit', inspite of the fact that the building actually belongs to 56 different persons, for and on behalf of whom, the construction was allegedly effected, based on separate construction agreements. 2. The sum and substance of the case is that different persons concerned are entitled to have the benefit of Explanation 2 to Section 2 (e) of the Kerala Building Tax Act. The sequence of event shows that the petitioners herein, along with 11 other persons, by virtue of the power of attorney (Exts.P1 to P3) executed by the others in favour of the petitioners, purchased different extent of properties such as 11.750 cents, 15 cents and 11.70 cents respectively and applied for building permit to effect the construction. Ext.P1 is the plan approved by the Municipality and also by the GCDA. Ext.P8 is the specimen of sale agreement executed in favour of 56 persons as aforesaid. Ext.P9 is the WPC.No.16850/07 2 specimen copy of the labour contract, virtually, the construction agreement, wherein stipulations are separately given, particularly, with regard to the payment schedule and other liabilities to provide the construction materials and such other particulars. Exts.P10 to P12 show the details of the owners concerned. The undivided interest in the land has been conveyed to the persons concerned, by virtue of the sale deeds executed separately, a specimen copy of which is produced as Ext.P13. Ext.P14 is the return filed before the assessing authority. After considering the matter, Ext.P15 assessment order was passed, fixing a total liability to the tune of Rs. 2,46,600/-, treating the building as a 'single unit', instead of assessing the same separately. In the said circumstances, the petitioner preferred an appeal, which did not turn to be fruitful and the appeal was dismissed as per Ext.P16 judgment. This made the petitioner to approach this Court by filing O.P.No.13090/2000, which was disposed of as per Ext.P17 judgment, directing the first respondent to redo the assessment. It was accordingly, that Ext.P18 order was passed by the assessing officer on 15/05/2001, referring to the law declared by this Court in _**Lissy v.**_ WPC.No.16850/07 3 _**Tahsildar**_ (2000(3)KLT 497). 3. Since the above order was not in conformity with the statutory requirement and actual facts and figures, the petitioners again approached this Court by filing O.P.No.16839/2001, which led to Ext.P19 judgment, whereby the impugned order was set aside and the assessing officer was directed to pass a 'speaking order' in the manner as specified therein. The petitioners preferred Ext.P20 representation as well. After considering the nature and extent of relief sought for, the assessing authority passed Ext.P21 order on 27/03/2007, which almost follows the same course, fixing the liability reckoning the building as a 'single unit', observing that no valid proof was produced to establish that the funds were provided separately by the persons concerned. It is the said order, that is under challenge in this writ petition. 4. The learned counsel appearing for the petitioners submits that there are clear stipulations in the 'sale agreement' as well as in the 'construction agreement', to provide the funds separately and also to effect the construction by engaging independent contractors. The construction has been completed accordingly. It is also stated that all WPC.No.16850/07 4 the requisite materials were furnished before the assessing authority which, however, was not properly appreciated, while passing the impugned order. 5. The learned Special Government Pleader submits that even the materials produced before this Court do not establish that, the funds were separately procured and arranged by the persons concerned. It is however conceded that no separate notice was issued to the persons concerned, inspite of submitting particulars of different owners vide Exts.P10 to P12. At the same time, it is stated that, but for mentioning the names of the owners, no address particulars were there, so as to have issued notice to all the persons concerned and to arrive at a finding after collecting the necessary particulars. 6. The learned counsel for the petitioners submits that, the petitioners will definitely furnish all the details and address including the separate electricity connection, separate water connection, the separate property tax assessment details and such other particulars before the assessing authority, to have separate assessment and to have the benefit of Explanation 2 to Section 2(e) of the KBT Act. WPC.No.16850/07 5 7. In the above circumstances, in view of the disputed facts and figures and also in view of the law declared by this Court in _**Bavasons Constructions (P) Ltd. v. State of Kerala**_ (2007(3)KLT 101, the matter has to be reconsidered following the procedure as stipulated therein. It is for the petitioners to furnish all the relevant particulars as assured and undertaken hereinbefore, so as to have a proper assessment and to pass a 'speaking order', to be in conformity with Ext.P19 judgment. The writ petition is disposed of, giving one more chance to the petitioner to establish all the facts and figures by producing the relevant materials before the assessing authority within 'one month' from this date, on which event, the same shall be considered and disposed of following the procedure prescribed by this Court in Bavasons' case (cited supra). The proceedings as above shall be finalised at the earliest and, at any rate within 'three months' thereafter. ## **R.RAMACHANDRA MENON JUDGE** sv. WPC.No.16850/07 6 WPC.No.16850/07 7