Dr.Geogi K. Ninan vs The District Collector
2022 Latest Caselaw 11177 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                     WP(C) NO. 11473 OF 2016
PETITIONER/S:

    1       DR.GEOGI K. NINAN
            AGED 62 YEARS
            S/O. E.K NINAN,AGED 61, KOLLAMPARAMBIL,
            PERINGOLE, KOLENCHERY, ERNAKULAM DISTRICT, PIN
            682 311
    2       JESSY N.ABRAHAM
            AGED 53 YEARS
            W/O. DR. GEOGI K. NINAN, AGED 53, KOLLAMPARAMBIL,
            PERINGOLE, KOLENCHERY, ERNAKULAM DISTRICT, PIN-
            682 311
    3       FIBI NINAN
            D/O. DR. GEOGI K. NINAN, AGED 26, KOLLAMPARAMBIL,
            PERINGOLE, KOLENCHERY, ERNAKULAM DISTRICT PIN-682
            311
            BY ADVS.SRI.P.B.KRISHNAN
            SRI.P.M.NEELAKANDAN,SRI.S.NITHIN ANCHAL
            SRI.SABU GEORGE
            SRI.P.B.SUBRAMANYAN
RESPONDENT/S:

    1       THE DISTRICT COLLECTOR
            COLLECTORATE, ERNAKULAM, KOCHI -682 030
    2       THE REVENUE DIVISIONAL OFFICER
            MUVATTUPUZHA-686 661
    3       THE TAHSILDAR
            KUNNATHUNADU, PERUMBAVOOR-682 308
    4       THE DEPUTY COLLECTOR
            COLLECTORATE, ERNAKULAM, KOCHI-682 030

OTHER PRESENT:

            ADV. RESMITHA. R. CHANDRAN - GP
     THIS    WRIT   PETITION     (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON   02.12.2022,     THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                           2


W.P. (C ) No. 11473 of 2016




                         MOHAMMED NIAS C.P., J
               ..........................................................
                      W.P. (C ) No. 11473 of 2016
               ............................................................
               Dated this the 02nd and of December, 2022


                                   JUDGMENT

Petitioner challenges Ext. P23 order passed under the

provisions of the Kerala Building Tax Act. The petitioner submits

that he owns a building comprised of three separate apartments

which ought to be treated as three units for the purpose of the

Kerala Building Tax Act, 1975 in particular (Section 2 (a) of the

above Act and Explanation 2 therein) . An order dated 4-5-2012

was passed in the revision preferred by the petitioners levying

building tax on them assessing them as a single building. The

said order was challenged in W.P.C. No. 16964 of 23012 and by

the judgment dated 3rd September 2015, the order was quashed

holding that it suffers from an erroneous line of reasoning. The

relevant portion of the judgment (produced as Ext. P21) in this

case is extracted.

On a consideration of Ext.P20 order, I find that the

same suffers from an erroneous line of reasoning. The

W.P. (C ) No. 11473 of 2016

provisions of Section 2 of the Kerala Building Tax Act,

and, in particular, Explanation 2 thereof, are very clear

when they state that 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. In other words, what is relevant is that the

building must comprise of different apartments and

each of those apartments must be owned by different

persons. As regards the cost of construction of the

building as a whole, it would suffice that W.P.

(C).No.16964/2012 4 the cost of construction was

made by all such persons jointly. The enquiry of the 1

st respondent, therefore, ought to have been on the

aspect of whether separate ownership was established

in respect of the different apartments, which together

constituted the entire building. This is a matter that

will have to be gone into by the 1 st respondent by

considering the evidence adduced by the petitioners

that would suggest that they have separate ownership

over the different apartments of the building in

question. Inasmuch as in Ext.P20 order, I do not find

such an exercise having been done by the 1 st

respondent, I quash Ext.P20 order, and direct the 1st

W.P. (C ) No. 11473 of 2016

respondent to reconsider the matter in the light of the

observations made above, and in particular, the recent

decision of the Supreme Court in State of Kerala and

Others v. A.P. Mammikutty - [2015 (3) KHC 794 (SC)],

especially paragraph 14 thereof, which deals with the

manner in which the requirement of meeting of cost of

construction of the building for the purposes of

Explanation II of Section 2(e) of the Kerala Building Tax

Act, has to be interpreted. The 1 st respondent shall

pass fresh orders, as directed, within a period of two

months from the date of receipt of a copy of this

judgment, after hearing the petitioners. It shall be

open to the petitioners to produce all materials relevant

for the purposes of establishing separate ownership over the

different apartments in the building, before the 1 st respondent, at

the time of hearing, and the 1 st respondent, while passing orders, as

directed, shall advert to the materials so produced by the petitioners.

The writ petition is disposed as above.

2. Pursuant to the above order, it is seen that Ext. P23

order has been passed on 29-01-2016 which did not consider any

of the aspects directed to be considered in Ext. P21 judgment.

The same reasons stated earlier are repeated. None of the

aspects specifically directed is seen considered while passing

W.P. (C ) No. 11473 of 2016

Ext. P23 order.

3. Though the learned Government Pleader tried to

sustain the impugned order, I am of the firm view that the

directions in Ext. P21 order has not been complied with while

passing Ext. P3 order and for that short reason Ext. P23 order

is liable to be quashed, and I do so.

4. In the light of the above, there will be a direction to the

first respondent to re-hear the petitioner and to pass orders on

the revision as directed in Ext. P21 judgment, which is extracted

above, within an outer limit of three months from the date of

receipt of a copy of this judgment.

This Writ Petition is allowed as above.

                                   Sd/- MOHAMMED NIAS C.P. JUDGE




ani/                                  /true copy/



W.P. (C ) No. 11473 of 2016




                     APPENDIX OF WP(C) 11473/2016

PETITIONER EXHIBITS
P1           DATED 26-3-1984, TRUE COPY OF THE
             REGISTERED    SETTLEMENT   DEED   NO.
             1243/84, S.R.O., PUTHENCRUZ.
P2           DATED NIL, TRUE COPY OF THE STATEMENT OF
             INCOME
P3           DATED 14-6-2002, TRUE COPY OF THE CERTIFICATE

ISSUED BY THE POOTHRIKA GRAMA PANCHAYAT. P4 DATED 23-3-2000, TRUE COPY OF THE CONSENT DEED NO. 1404/2000,S.R.O,PUTHENCRUZ.

P5 DATED NIL, TRUE COPY OF THE STATEMENT OF INCOME.

P6 DATED 23-3-2000, TRUE COPY OF THE CERTIFICATE ISSUED BY THE POOTHRIKA GRAMA PANCHAYAT. P7 DATED 23-3-2000, TRUE COPY OF THE CONSENT DEED NO. 1405/2000,S.R.O,PUTHENCRUZ.

P8 DATED NIL,TRUE COPY OF THE CONSTRUCTION COST OF THE HALL P9 DATED 25-11-2009, TRUE COPY OF THE CERTIFICATE ISSUED BY THE POOTHRIKA GRAMA PANCHAYAT. P10 DATED 23-10-2002,TRUE COPY OF THE JUDGMENT IN O.P NO.30829 OF 2002-T P11 DATED 20-1-2009,TRUE COPY OF THE NOTICE ISSUED BY RESPONDENT NO.3 P12 DATED 7-11-2009, TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS BEFORE RESPONDENT NO.3 P13 DATED 21-11-2009,TRUE COPY OF THE PROCEEDINGS ISSUED BY RESPONDENT NO.3 P14 DATED 21-11-2009, TRUE COPY OF THE ORDER OF ASSESSMENT IN FORM V