Unni Kerala Varma v. Tahsildar, Kunnathunadu, Ernakulam District; Revenue Divisional Officer, Muvattupuzha; District Collector, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938** **WP(C).No. 8054 of 2015 (F) ---------------------------** **PETITIONER:** ## **-----------** **UNNI KERALA VARMA, KERALA VILASAM PALACE, FORT, TRIPUNITHURA.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA** ## **RESPONDENT(S):** ## **--------------** **1. THE TAHSILDAR, KUNNATHUNADU, ERNAKULAM DISTRICT - 682308.** **2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA - 686 661.** **3. THE DISTRICT COLLECTOR, ERNAKULAM - 682030.** **BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDDIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 8054 of 2015 (F) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE SECRETARY, VADAVUKODU-PUTHENCRUZ GRAMA PANCHAYATH DATED 2.1.2008. EXHIBIT P1(A): TRUE COPY OF THE BUILDING PLAN APPROVED BY THE SECRETARY, VADAVUKODU-PUTHENCRUZ GRAMA PANCHAYAT DATED 2.1.2008. EXHIBIT P2: TRUE COPY OF THE AGREEMENT FOR SALE EXECUTED BY THE PETITIONER DATED 27.3.2008. EXHIBIT P2(A): TRUE COPY OF THE AGREEMENT FOR CONSTRUCTION EXECUTED BY THE PETITIONER DATED 27.3.2008. EXHIBIT P3: TRUE COPY OF ASSESSMENT ORDER NO.G5-16771/11 DATED 28.2.2013 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN WPC NO.9024/2013 DATED 9.4.2013. EXHIBIT P5: TRUE COPY OF THE LIST OF DOCUMENTS SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 16.12.2013. EXHIBIT P6: TRUE COPY OF THE ORDER NO.K.DIS.8024/13/A9 ISSUED BY THE 2ND RESPONDENT DATED 16.1.2014. EXHIBIT P7: TRUE COPY OF THE ORDER NO.B10-45330/14/K DIS ISSUED BY THE 3RD RESPONDENT DATED 4.8.2014.** ## **RESPONDENTS' EXHIBITS:** **EXT. R2A: TRUE COPY OF THE CERTIFICATE NO.A3-3027/11 DATED 21.6.2011 ISSUED FROM VADAVUCODEPUTHENCRUZ GRAMA PANCHAYATH.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C)No.8054 of 2015 -F** ## **========================= Dated this the 07[th] day of February, 2017** ## **J U D G M E N T** The petitioner is aggrieved with the assessment made at Ext.P3 and appeal and revisional orders passed at Exts.P6 and P7. The petitioner who constructed an apartment complex having a total plinth area of 1431.27 sq.mtrs had filed a return showing the entire plinth area under the Kerala Building Tax Act, 1975 (for brevity 'the Act'). The assessment was made as per Ext.P3 of the whole building, which was challenged in appeal and revision. The appellate and revisional orders are produced as Exts.P6 and P7. 2. The learned Counsel for the petitioner contends that the building though constructed as one building consists of 12 separate apartments, which had been constructed on the basis of an agreement for sale and agreement for construction, entered into between the different purchasers. It 2 ## W.P.(C)No.8054/2015 is also contended that the said agreements were produced before the Assessing Officer, who refused to look into it. The Appellate Authority and the Revisional Authority also rejected the claim of the petitioner, merely on the ground that the petitioner is the person, who obtained the building permit. 3. The learned Counsel for the petitioner would also rely on the decisions reported in **State of Kerala** v. **Mammikutty [2015(3) 138 (SC)]** , **Lalitha** v. **State of Kerala [1994(2) KLT 66]** and **Pavan Kumar v. State of Kerala [2012** **(2) KLT 889]** . **Mammikutty** (supra) would not be applicable, since here the assessment is under Section 5 of the Act and the issue dealt with by the Hon'ble Supreme Court was the levy of luxury tax under Section 5A of the Act. **Lalitha** (supra) also is not applicable to the facts of the present case, since it dealt with clubbing together of various buildings constructed by the same owner, which were separate buildings, within the same premises. 3 ## W.P.(C)No.8054/2015 4. **Pavan Kumar** (supra) was a case, in which the appellant before Court, along with his sisters, who were coowners of a land had entered into an agreement with a developer for construction of an apartment complex in the land. The appellant was entitled to 12 apartments and his sisters one each. The developer was also entitled to build 41 additional apartments, which they were entitled to deal with. Forty one apartments, purchased by third parties were assessed separately. The appellant's, 12 apartments were assessed as one single building. This Court on a reading of Explanation 2 to Section 2(e) of the Act found that the requirement to fall within Explanation 2 is separate ownership of the individual apartments contained in the building and cost of the construction of the building having been met by all such persons, who ultimately own the apartments after completion of the construction. The appellant therein, was found to have paid the cost of construction of the 12 4 ## W.P.(C)No.8054/2015 apartments, conceded to him by the builder, by way of the transfer of the land, which was agreed to be effected by conveyance of undivided interest to the various purchasers of the apartments, in the building. Especially taking into consideration that 41 apartments, which were dealt with independently by the developer had also been separately assessed, the Division Bench directed the assessment to be made separately of the 12 apartments. The latter stand taken may not be available as of now since **Mammikutty** found a similar functional unit test applied by the Division Bench in that case to be not proper. The finding of the Learned Single Judge that even if a person has more than one apartments in a building, levy of luxury tax could be sustained only if each apartment had more than 278.7 sq: m: was also not accepted by the Hon'ble Supreme Court. 5. In the present case, there is not even such contention raised as is found in **Pavan Kumar** . The petitioner 5 W.P.(C)No.8054/2015 was the owner of the land and the petitioner had obtained the building permit in his name. The construction was also made by the petitioner himself. The contention is that the building permit was obtained on 02.01.2008 and that the petitioner by way of agreements for sale and for construction, as is seen from Exts.P2 and P2(a), with various purchasers had constructed the building on behalf of the said purchasers. 6. The agreement alone would not evidence the cost of construction having been borne by the various persons. There is nothing produced before the authority to indicate that the cost of construction was borne by the purchasers. The return itself was filed by the petitioner and in such circumstance, there could not be a ground raised of separate assessment of building tax. However, when the luxury tax is assessed under Section 5A of the Act, the separate owners could take up a contention of separate ownership as has been found in **Mammikutty** . The petitioner would be granted two 6 ## W.P.(C)No.8054/2015 further instalments to pay the balance amounts due. The writ petition woulds stand dismissed, with the above direction as to satisfaction. ## **Sd/-** **K. VINOD CHANDRAN, JUDGE** SB/07/02/2017 // true copy // P.A to Judge