Kerala High Court
E.P.Varghese vs District Collector, Thrissur on 6 November, 2024
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W.P.(C) No.28351 of 2017
2024:KER:82669
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 28351 OF 2017
PETITIONER:
E.P.VARGHESE,
S/O.E.V.PAUL, ERINJERI HOUSE,
EAST FORT P.O., CHEMBUKAVU,
THRISSUR DISTRICT.
BY ADVS.
A.R.NIMOD
M.A.AUGUSTINE
RESPONDENTS:
1 DISTRICT COLLECTOR, THRISSUR,
THRISSUR, COLLECTORATE, AYYANTHOLE,
THRISSUR, PIN - 680 003.
2 TAHSILDAR,
TALUK OFFICE, THRISSUR, PIN - 680 020.
3 VILLAGE OFFICER,
CHEMBUKKAVU, THRISSUR, PIN - 680020.
BY ADV.
SRI.ARUN AJAY SHANKAR, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P.(C) No.28351 of 2017
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HARISANKAR V. MENON, J.
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W.P.(C) No.28351 of 2017
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Dated this the 6th day of November, 2024
JUDGMENT
The petitioner's father, one Sri.E.V.Paul, had constructed two
commercial buildings. The first building itself was constructed in
two stages. The first stage of the construction was completed in
the year 2002, and the 2nd stage was completed in 2011. The total
area of the first building so constructed was 4542.89 m2. Exts.P17
and P18 are the occupancy certificates with reference to the two
stages of construction completed as above as regards the first
building. The second building was constructed and completed
during 2014, as evidenced by Ext.P8 occupancy certificate. The
second building was having an area of 4418.26 m2. The petitioner
points out that his father had already satisfied the tax payable
under the Kerala Building Tax Act, 1975 (hereinafter referred to
as "the Act" for short) separately, as regards these two buildings.
As regards the second building, the payment of tax was effected
by the petitioner since, by that time, his father had passed away.
2. However, by Exts.P14 and P15, the assessing authority
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under the Act - the 2nd respondent herein - has sought to assess
both these buildings as a single unit. The petitioner has
approached this Court essentially challenging the findings in
Exts.P14 and P15.
3. A counter affidavit is also filed on behalf of the 2nd
respondent herein, supporting the impugned orders. In the
counter affidavit, it is pointed out that when the inspection was
carried out prior to the assessment, it was seen that both these
buildings were interconnected with a "passage", and therefore,
both the buildings were taken as a single unit having an extent of
8961.15 m2 and assessed to tax with reference to the provisions
of Section 5(4) of the statute.
4. I have heard Sri.A.R.Nimod, the learned counsel for the
petitioner and Sri.Arun Ajay Shankar, the learned Government
Pleader for the respondents herein.
5. The only dispute in this writ petition is as regards the
sustainability or otherwise of Exts.P14 and P15. The fact that the
petitioner's father constructed the two buildings, as already
noticed, is not in dispute. However, according to the assessing
authority under the statute, these two buildings are to be treated
as one and the same unit for the purpose of assessment, solely
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on account of the interconnection by way of a "passage", as
noticed in the counter affidavit. It is also pointed out in the counter
affidavit that only a common occupancy certificate was given as
regards both the buildings. However, the above averment with
respect to the occupancy certificate is denied by the petitioner,
pointing out that it is only on account of the mistake while drafting
the writ petition, that such a stand was taken by the respondents.
Sri.Nimod also contended that the two buildings were constructed
separately with reference to separate building permits and were
having separate parking grounds as per the building permits and
also having separate approach roads / entrance.
6. It was pointed out by the learned counsel for the
petitioner, at the time of the earlier hearing, that the passage was
only a temporary structure, which was erected in between the two
buildings for aiding the ease of construction. He had pointed out
that, as of now, the passage is not in existence. Therefore, on
10.10.2024, this Court had directed the 2nd / 3rd respondents to
carry out a fresh site inspection and to file a report in the matter.
A report is placed on record, along with a Memo by the learned
Government Pleader dated 24.10.2024, pursuant to a site
inspection. A reference to the said report dated 23.10.2024 shows
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that, as of now, the passages are not seen existing, however, the
places where the passages were originally existing are seen closed
with "half grills". It is further pointed out that the fact that the
passages were later removed is clear from the nature of the
painting as of now seen on the buildings. It is again pointed out
that there is a common roof in between both these buildings in
the area where the passages were originally existing.
7. On the basis of the findings in the afore report of the
Tahsildar, Sri.Arun Ajay Shankar, the learned Government Pleader
points out that there were originally passages in between the two
buildings and therefore, these buildings are to be treated as one
and the same as was done originally by the Tahsildar. He also
points out that the connection between the buildings was there on
all the floors, and this itself is a pointer to the effect that the
petitioner always wanted to deem the two buildings as one and
the same.
8. In this connection, I notice the judgment of this Court
in Lalitha v. State of Kerala [1994 (2) KLT 66], wherein an
almost identical situation came up for consideration. Considering
the afore situation, this Court in paragraphs 8 and 9 has held as
under;
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"8. What is noteworthy in the above mentioned provisions is
that the charge is on the building as such, and not with
reference to its owner. The tax able event is the completion
of construction of the building. There is no provision in the
Act for clubbing together various buildings constructed by the
same owner either in the same financial year or otherwise. A
building as defined in S.2(e) is an assessable entity by itself,
liable to be assessed in respect of its capital value, as defined
in S.2(f) (now plinth area). A person may construct separate
buildings in the same property or in different properties, but
there is no provision for clubbing together these buildings
which are otherwise separate. What is brought to assessment
as a building is what is defined in S.2(3) which, to put it
shortly, means a building and its appurtenances like out-
house, garage and such other structures which are
attachments to it and form parts thereof though they may be
physically or structurally separated from it. A building with all
its necessary appurtenances is a single unit, but totally
different units which otherwise have no connection with each
other, either structurally or functionally are separate
buildings. Two separate units may constitute one building, if
they are built for the purpose of one or the other, and are
functionally integrated. For example, a house with a garage,
out-house for servants, latrines, cow-shed and so on forms
an integral unit and has to be assessed as such. A hotel
complex which may consist of numerous buildings like,
cottages, kitchen complex, shopping arcade and so on or a
factory complex with its appendages may constitute one unit
for purposes of assessment. But when there is no such
inherent connection between the buildings, when they do not
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exist for each other and are otherwise separate, there is no
provision anywhere in the Act which requires such separate
entities to be clubbed together into one or which deems them
to be one building. Naturally so, because the tax payable
under the Act is a one time payment, for which the tax able
event is the completion of the construction of the building.
Therefore, and even apart from anything else, it is impossible
to club together different buildings into one for the purpose
of assessment under this Act merely because they belong to
the same owner.
9. The buildings with which we are concerned in this case are
structurally separate buildings separated from each other by
a road. The buildings concerned in O.P.No.7744 of 1992
belong to different firms, though they have same common
partners. Each can exist without the other. It cannot be stated
that they have been constructed with a view to provide
necessary facilities for the occupants of the other building or
to be complementary to each other. They can exist
independently of the other. There is no reason why such
different buildings should be treated as one tax able entity
when the Act does not specifically provide for it. I am
therefore of the view that the authorities have erred in
clubbing together the separate buildings put up by the
respective petitioners in the two cases, and in bringing them
to one common assessment."
9. In the light of the above, the ultimate question to be
considered is as to whether the buildings are structurally
independent or not. Here, the stand taken by the petitioner that
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the interconnection by way of a "passage" was only temporary at
the time of construction is to be taken into account. Further, a
perusal of the latest report from the Tahsildar also shows that, as
of now, the passage is not there. In such circumstances, I am of
the view that the matter requires a revisit at the hands of the 2 nd
respondent.
In such circumstances, this writ petition is disposed of as
under;
i. Exts.P14 and P15 are set aside.
ii. The 2nd respondent to pass fresh orders, after
making reference to the findings in the report
dated 23.10.2024 as also the principles laid down
by this Court in Lalitha v. State of Kerala [1994
(2) KLT 66].
Sd/-
HARISANKAR V. MENON
JUDGE
anm
2024:KER:82669
APPENDIX OF WP(C) 28351/2017
PETITIONER EXHIBITS
EXHIBIT P1. TRUE COPY OF THE BUILDING PERMIT BEARING
NUMBER PW/BA/406/98-99 DTD. 25.03.1999.
EXHIBIT P2. TRUE COPY OF THE OCCUPANCY CERTIFICATE
DTD. 31.05.2000 ISSUED BY THE
MUNICIPALITY THE PETITIONER'S FATHER.
EXHIBIT P3. TRUE COPY OF THE OCCUPANCY CERTIFICATE
DTD. 08.08.2014 ISSUED BY THE
MUNICIPALITY THE PETITIONER'S FATHER.
EXHIBIT P4. TRUE COPY OF THE ORDER OF ASSESSMENT
DTD.09.12.2014 BEARING NO.G3-4382/14
ISSUED IN THE NAME OF THE PETITIONER'S
FATHER.
EXHIBIT P5. TRUE COPY OF THE BUILDING TAX RECEIPT
WITH RESPECT TO THE BUILDING NUMBERED AS
8/147.
EXHIBIT P6. TRUE COPY OF THE TAX RECEIPT
DTD.02.04.2016 BEARING NO.73823.
EXHIBIT P7. TRUE COPY OF THE BUILDING PERMIT BEARING
NUMBER DW3/PW7/404/06-07 DATED
18.04.2008.
EXHIBIT P8. TRUE COPY OF THE OCCUPANCY CERTIFICATE
DATED 08.08.2014 BEARING
NO.DW5/PW7/404/06-07.
EXHIBIT P9. TRUE COPY OF THE TAX RECEIPT DATED
09.08.2017 BEARING NO.01283.
EXHIBIT P10. TRUE COPY OF THE TAX RECEIPT DATED
14.02.2017 ISSUED BY THE MUNICIPAL
CORPORATION OF THRISSUR.
EXHIBIT P11. TRUE COPY OF THE SETTLEMENT DEED
REGISTERED AS DOCUMENT NUMBER 4182 OF
2014 BEFORE THE SRO THRISSUR.
EXHIBIT P12. TRUE COPY OF THE ORDER OF ASSESSMENT
DATED 29.05.2017 BEARING NO.G3-27953/16.
EXHIBIT P13. TRUE COPY OF THE CHEQUES EVIDENCING THE
REMITTING OF AMOUNTS BY THE PETITIONER.
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EXHIBIT P14. TRUE COPY OF THE NOTICE DATED 30.06.2017
BEARING NO.G3-27953/16 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER.
EXHIBIT P15. TRUE COPY OF THE ORDER OF ASSESSMENT
DATED 19.08.2017 BEARING NO.G3-27953/16
ISSUED TO THE PETITIONER.
EXHIBIT P16. TRUE COPY OF THE PLAN SHOWING THE LIE OF
THE PROPERTY OF THE PETITIONER AND HIS
FATHER AND THE SEPARATE BUILDINGS
SITUATED THEREIN.
RESPONDENTS EXHIBITS
EXHIBIT R2(a) A TRUE COPY OF THE ASSESSMENT ORDER
BEARING NO.G2-17999/02 DATED25.10.2002.
