W.P.(C) No. 12921 of 2024 – B.P. Siddique Haji, M. Muhammed and Ayesha Beegam v. The Tahsildar, Kozhikode

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH`** ## **`MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946`** ## **`WP(C) NO. 12921 OF 2024`** ## **`PETITIONER/S:`** - **`1 B.P.SIDDIQUE HAJI AGED 70 YEARS S/O MOOLADATH MOHAMED HAJI, NOOR MAHAL, KOVOOR, NELLIKODE VILLAGE, MEDICAL COLLEGE P.O., KOZHIKODE, PIN - 673008`** - **`2 M.MUHAMMED AGED 44 YEARS S/O B.P.SIDDIQUE HAJI, NOOR MAHAL, KOVOOR, NELLIKODE VILLAGE, MEDICAL COLLEGE P.O., KOZHIKODE, PIN - 673008`** - **`3 AYSHA BEEGAM AGED 39 YEARS D/O B.P.SIDDIQUE HAJI, NOOR MAHAL, KOVOOR, NELLIKODE VILLAGE, MEDICAL COLLEGE P.O., KOZHIKODE, PIN - 673008 BY ADVS. NISHA GEORGE FATHIMA AMREEN JAMAL GEORGE POONTHOTTAM (SR.)`** ## **`RESPONDENT/S:`** ``` THE TAHSILDAR TALUK OFFICE, WAYANAD ROAD, CIVIL STATION, ERANHIPPALAM, KOZHIKODE, PIN - 673020 ``` ## **`OTHER PRESENT:`** ``` SMT. JASMIN M.M.- GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 12921 OF 2024 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 1st day of April, 2024** The present writ petition has been filed seeking the following reliefs:- “i) Issue a writ of certiorari calling for the records leading to Exhibit P10, P12 and P13 orders and quash the same or any other appropriate writ, order or direction; ii) Issue a writ declaring that Exhibit-P12 and P13 are opposed to law and therefore bad in law. iii) Issue a writ declaring that the clubbing of ownership is solely for increasing the tax computed and that the said course resorted is by abusing the provisions of law. iv) Issue a writ in the nature of mandamus to the respondent to assess the building separately as against the owners, who holds the title.” 2.The 1[st] petitioner was the owner of 121.490 cents of land comprised in re-survey Nos. 97/3, 97/4 and 92 in Kovoor Desom, Nellikode Village, Kozhikode, had executed a settlement deed in respect of 64.448 cents out of total 121.490 cents of land on 31.05.2023 in favour his four children viz; Ms. Vava Mariyam, Ms. Fathima Noor and 2[nd] and 3[rd] petitioners in the writ petition. 3. A residential complex including apartments and villas were proposed to be developed in the entire extent of 121.490 cents of land for constructing residential villas in the name of ‘Bedford Enclave’. An agreement for development of the said project with M/s Southern Investment Pvt. Ltd on 14.06.2013 was executed. Building permit was obtained on 10.09.2013 for the construction of the apartment complex of 13 floors with two basement floors ``` WP(C) NO. 12921 OF 2024 ``` ``` 3 ``` having a total plinth area of 7639.73 sq.m. 4. In terms of agreement dated 14.06.2013, a multi-stored residential apartment complex was to be constructed in a portion of the land belonging to the land owners (46.74 cents) and the remaining area was demarcated for common roads and facilities. Property that was retained by the 1[st] petitioner was set apart for construction of villas. After retaining six apartments for themselves, the landowners and Builder allotted the right to construct all other apartments to prospective individual owners who were willing to purchase the proportionate undivided shares and get the individual apartments constructed by expending their own funds. 5.The apartments retained by the landowners include four apartments having a super built up area of 1582 sq.ft each and two apartments having a super built up area of 1289 sq.ft each. After the execution of builder agreement, the Builder- M/s Southern Investments Pvt. Ltd was declared insolvent by the National Company Law Tribunal. The buyers of the said project thereafter formed an association viz. ‘BedFord Enclave Apartment Owners Welfare Association’ and the project was thereafter completed by the said association. Occupancy certificate for the apartment building was issued by the Kozhikode Corporation on 01.04.2019 ``` WP(C) NO. 12921 OF 2024 ``` in Ext.P3. As per the terms of builder agreement dated 14.02.2013, the six apartments and the car parking area retained by the land owners was adjusted towards the cost of construction of each apartment. 6.It is further stated that in the writ petition that landowners have undivided shares in the said apartments. Six registered deeds were executed by themselves on 05.08.2019, allotting specific apartments between themselves. Apartment Nos. 7A, 7B went to M/s Vava Mariyam and 7C and 1D went to Ms. Fathima Noor as per the Gift Deed Nos. 2084/2019, 2087/2019 and 2083/2019, 2085 /2019 respectively in Exts. P4 and P5. The respondent by proceeding dated 30.01.2024 assessed the building tax payable under Section 9(1) of the Act, in respect of the six apartments. 7.The learned senior counsel for the petitioner has submitted that in view of the Explanation 2 of Section 2(e) of the Kerala Building Tax Act, 1975 (‘the Act’ for short), the eight / six apartments ought not to have been clubbed together for calculating the plinth area for the purposes of imposing the building tax and the luxury tax. 8.The learned senior counsel has placed reliance on the judgment of this court in **Pavan Kumar P. v. State of Kerala and Others [ 2012 (2) KHC 695]** in support of his submission. ``` WP(C) NO. 12921 OF 2024 ``` ``` 5 ``` 9.The issue involved in this writ petition is covered by the judgment of this court in W.P(C) No. 33329/2023 dated 12.10.2023 ## in **V.S Abdul Latheef v. The Tahsildar.** ## Paragraphs 7 and 8 of the judgment is extracted as ## hereunder:- “7. Thus, considering Section 5A r/w Section 2 and Explanation II to Section 2(e), what is relevant is the ownership of the apartment(s)/building. If a person is the owner of more than one apartment in a building or compound, then the area of all the apartments is to be taken together for the purpose of levying building tax and luxury tax. In my considered opinion, that is what has been done by the assessing authority in the instant case. The assessing authority has taken together the area of 11 flats under the ownership of the petitioner to assess and levy building tax and luxury tax. 8. The issue as to whether the petitioner has sold one flat before or after the occupancy certificate was issued, is a question of fact and it cannot be decided in a writ petition filed under Article 226 of the Constitution of India. If the fact that one flat has been sold by the petitioner is not considered while levying the building tax and luxury tax, the petitioner may file an appeal before the appellate authority to that extent. I do not find any error of law or facts committed by the assessing authority while assessing the tax by taking 11 flats together for the purpose of levying building tax and the luxury tax.” ## The said judgment has been affirmed by the division bench ## of this court in **V.S Abdul Latheef v. The Tahsildar [ 2023 (7) KHC 492].** ## Paragraphs 10 and 11 of the judgment, it has been held as under:- 10. ‘Building’, as defined under Section 2(e), covers all the buildings in the literal sense, and besides it, it includes every structure or part of a building. The plinth area, which is the basis of assessment under Section 2(k), takes in the floor area of the building, and where the building has more than one floor, the aggregate area included in all the floors taken together. Going by the definition of the 'building' contained in Section 2(e), read with the definition of 'plinth area' under Section 2(k) and the charging Sections 5 and 5A, a multi-storied building or a building with ``` WP(C) NO. 12921 OF 2024 ``` ``` 6 ``` different residential or commercial apartments must be assessed as a single unit on the total plinth area which includes the plinth area of all the floors of the building. However, the assessment must be necessarily in the name of the owner or owners of the building if several persons jointly own it. Two exceptions are provided in the Act against single assessment of multi-flat apartments, whether residential or commercial. Explanation 2 to Section 2(e), which is relevant here, specifies that where a building consists of different apartments or flats owned by different persons and the cost of construction was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building. The said exception provides for separate assessment of flats or apartments of a multi apartment building in the name of each owner of the flat or apartment. 11. A plain reading of Explanation 2 to Section 2(e), along with Sections 5 and 5A of the Act, makes it clear that if a person is the owner of more than one apartment in a building, which consists of number of apartments owned by different persons and the cost of construction was jointly met by all persons, then the area of all those apartments owned by him is to be taken together for the purpose of levying building tax and luxury tax. What is relevant is the ownership of the apartment(s)/building. The appellant had assigned undivided right over the land to the builder. The assignment of the right in the land by the owner to the builder to build the flats on condition of constructing and delivering few flats to the owner of the land would amount for sharing of cost of construction as stated in the Explanation 2. The appellant's contention that irrespective of the number of owners owning apartment buildings, each flat is to be assessed as a separate building by virtue of Explanation 2 to Section 2(e) cannot be accepted. It is clear from Explanation 2 to Section 2(e) that where a building consists of different apartments or flats owned by different persons, the ownership is critical for assessing building tax or luxury tax. If a single owner owns more than one flat in the apartment complex, whether it is situated on the same floor or different floors, all those flats owned by him are to be taken together for assessment of building tax or luxury tax. The Apex Court in A.P.Mammikutty (supra) considered the scope of Explanation 2 to Section 2(e) of the Act in the context of Section 5A. It was held that the entire plinth area in the residential building owned by a single owner has to be aggregated for the purpose of levying luxury tax irrespective of whether the residential building consists of one floor or is two-storied or three storied or consists of multiple flats or apartments. It was further held that if a person is the owner of a plinth area of 278.7 sq. metres or more in one building, even if it consists of separate or distinct apartments, he would be liable to pay the luxury tax under Section 5A of the Act. The said dictum squarely applies in the case of building tax under Section 5 of the Act as well. The assessing authority, thus, has rightly clubbed together the area of all 11 flats under the ownership of the appellant to assess and levy building tax and luxury tax, which the learned Single Judge rightly upheld. We find no illegality or impropriety in the impugned judgment. Writ appeal accordingly stands dismissed. ``` WP(C) NO. 12921 OF 2024 ``` ``` 7 ``` In view of the aforesaid discussion, I find no error in the impugned assessment order and the writ petition being divide of merit and substance which is hereby dismissed. **Sd/DINESH KUMAR SINGH JUDGE** ## **SJ** ``` WP(C) NO. 12921 OF 2024 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 12921/2024`** ``` PETITIONER EXHIBITS EXHIBIT -P1TRUE COPY OF SETTLEMENT DEED NO.2060/2013 OF SRO, CHEVAYOOR DATED 31.05.2013 EXECUTED BY THE 1ST PETITIONER IN FAVOUR OF THE PETITIONERS 2 AND 3, MS.VAVA MARIYAM AND MS.FATHIMA NOOR EXHIBIT -P2TRUE COPY OF THE LAND OWNERS AGREEMENT DATED 14.06.2013 EXHIBIT -P3TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY THE KOZHIKODE CORPORATION DATED 01.04.2019 EXHIBIT -P4TRUE COPY OF THE GIFT DEED NO. 2084/2019 DATED 05.08.2019 OF SRO CHEVAYOOR EXECUTED MS.VAVA MARIYAM AS REGARDS APARTMENT NO.7B EXHIBIT -P5TRUE COPY OF THE GIFT DEED NO. 2087/2019 DATED 05.08.2019 OF SRO CHEVAYOOR EXECUTED IN FAVOUR OF MS.VAVA MARIYAM AS REGARDS APARTMENT NO.7A EXHIBIT -P6TRUE COPY OF THE GIFT DEED NO. 2083/2019 DATED 05.08.2019 OF SRO CHEVAYOOR EXECUTED IN FAVOUR OF THE MS.FATHIMA NOOR AS REGARDS APARTMENT NO.7C EXHIBIT -P7TRUE COPY OF THE GIFT DEED NO.2085/2019 DATED 05.08.2019 OF SRO CHEVAYOOR EXECUTED IN FAVOUR OF IN FAVOUR OF THE MS.FATHIMA NOOR AS REGARDS APARTMENT NO.1D EXHIBIT -P8TRUE COPY OF THE GIFT DEED NO.2086/2019 DATED 05.08.2019 EXECUTED IN FAVOUR OF THE 2ND PETITIONER AS REGARDS APARTMENT NO.7D EXHIBIT -P9TRUE COPY OF THE GIFT DEED NO. 2088/2019 DATED 05.08.2019 OF SRO CHEVAYOOR EXECUTED IN FAVOUR OF THE 3RD PETITIONER AS REGARDS APARTMENT NO.2D EXHIBIT- P10TRUE COPY OF THE ORDER NO. C5/1940/20 DATED 30.01.2024 ISSUED BY THE TAHSILDAR, KOZHIKKODE EXHIBIT -P10(A)TRUE ENGLISH TRANSLATION OF EXHIBIT P10 EXHIBIT -P11TRUE COPY OF THE NOTICE DATED 20.02.2024 ISSUED BY THE TAHSILDAR, KOZHIKKOD TO THE 1ST PETITIONER ``` ``` WP(C) NO. 12921 OF 2024 ``` ``` 9 ``` ``` EXHIBIT -P11(A)TRUE ENGLISH TRANSLATION OF EXHIBIT-P11 EXHIBIT-P12TRUE COPY OF THE ORDER NO.CS/1940/20 DATED 15.03.2024 ISSUED BY THE RESPONDENT EXHIBIT-P12(A)TRUE ENGLISH TRANSLATION OF EXHIBIT P12 EXHIBIT-P13TRUE COPY OF THE ORDER OF ASSESSMENT UNDER FORM V PASSED BY THE RESPONDENT ASSESSING AUTHORITY DATED 18.03.2024 ```