Kerala High Court
Secura Developers Private Limited vs The Tahsildar, Kannur Taluk Office on 20 February, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
WP(C) NO. 6675 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 20TH DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946
WP(C) NO. 6675 OF 2025
PETITIONERS :
1 SECURA DEVELOPERS PRIVATE LIMITED
28/2275-D8, 6TH FLOOR, EMPORA GEMZ,
NH THONDAYAD BYPASS, CALICUT, KERALA - 673 016
HAVING ITS PROJECT SITE AT SECURA CENTRE,
THAZECHOVVA, KANNUR BYPASS, KERALA - 670 018,
PIN - 673 016
2 SHABEER ABDUL KADAR
AGED 42 YEARS
S/O ABDULKADAR, WHITE HOUSE CASTLE,
NEAR BANK COLONY, CIVIL STATION POST,
KANNUR, KERLA, PIN - 670 002
BY ADVS.
M.P.SHAMEEM AHAMED
DANIYA RASHEED PALLIYALIL
AHAMED IQBAL
RESPONDENTS :
1 THE TAHSILDAR, KANNUR TALUK OFFICE
KANNUR TALUK OFFICE, KANNUR, KERALA,
PIN - 670002
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
REVENUE DEPARTMENT, THIRUVANANTHAPURAM,
KERALA, PIN - 695 001
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SMT.JASMIN M.M., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BECHU KURIAN THOMAS, J.
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W.P.(C).No.6675 of 2025
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Dated this the 20th day of February, 2025
JUDGMENT
Petitioners challenge Ext.P14 order issued by the first
respondent imposing tax on a building constructed by the petitioners in
Survey No.35/1B, Block 223 of Kannur Corporation having a total extent
of 16740.1 Sq.m.
2. Petitioners are the owners of the land mentioned above,
having a total extent of 120 cents. A building has been constructed on
the said land, consisting of 84 units. Initially, when the entire building
was assessed to tax under the Building Tax Act (for short 'the Act') as a
single unit, under the Act petitioner approached this Court in W.P.(C)
No.7856 of 2023, contending that the order was issued without granting
an opportunity of hearing. Upholding the said contention, this Court set
aside the order of assessment by judgment dated 22.01.2024 and
directed a fresh assessment to be carried out, after granting an
opportunity of hearing.
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3. Pursuant to the judgment in W.P.(C) No.7856 of 2023,
petitioners filed a detailed objection which is produced as Ext.P13
referring to the decisions in Balu v. State of Kerala [1994 (2) KLT 42]
as well as in Pavan Kumar P.v. State of Kerala and Others [2012
(2) KHC 695] and sought for separate assessment of each of the units.
It was specifically pleaded in the objection that the cost of construction of
each of the 83 units was met by the respective owners, with whom
separate agreements for sale were executed. A sample agreement was
also produced along with the objection and requested the Assessing
Authority to call upon the petitioners to produce any other documents
including ledgers of bank account statements pertaining to any of the
units, wherever it was required. However, by the impugned order dated
27.01.2025, the Assessing Authority confirmed the earlier order of
assessment by stating that no documents were produced to prove that
the separate units were transferred to the different owners as claimed.
Contending that the aforesaid order of assessment is non-speaking and
has also not considered any of the contentions, this writ petition has been
filed.
4. I have heard Sri.M.P.Shameem Ahamed, the learned counsel
for the petitioners as well as Smt.Jasmin M.M., the learned Government
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Pleader.
5. On a perusal of Ext.P14 impugned order of assessment, this
Court notices that the earlier order of assessment i.e. Ext.P10, which was
set aside by this Court in the judgment in W.P.(C) No.7856 of 2023 is
affirmed in the impugned order, without there being any fresh
assessment of quantum. When the earlier order of assessment was set
aside, the Assessing Authority could not have relied upon either the
quantum of tax imposed in that order or the findings therein. There
should have been a fresh and independent consideration of the factors
necessary for assessing the building in question. Therefore the manner in
which Assessing Authority had arrived at the impugned order has to be
regarded as perverse, on this score itself.
6. Apart from the above, it is also noticed that the Assessing
Authority has issued the impugned order for the singular reason that
petitioner had not produced any document to show that separate units
were transferred to the respective persons who claim to be the owners.
In this context, it is evident from the impugned order that the Assessing
Authority had not considered whether the cost of construction was met by
several persons with whom agreements for sale had been executed. The
relevant factor that determines separate assessment is whether the cost
of construction was met by different persons who claim to be owners. Of
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course, petitioners had not produced any document to show that the cost
of construction was met by the respective persons with whom
agreements for sale were entered into. It was certainly petitioner's duty
to have produced all materials to enable the assessing authority to come
to such a conclusion. Since petitioners had, offered to produce all
documents, if in case it was necessary, I am of the view that the
assessing authority should have called upon the petitioner to produce
those documents before passing the impugned order.
7. As the impugned order has not considered all the relevant
factors and has not given any reason, apart from having been issued
mechanically and in a perverse manner, the said order is liable to be set
aside. A fresh consideration is required to be done.
Hence, the impugned order Ext.P14 is set aside and the
Assessing Authority is directed to pass fresh orders of assessment after
granting an opportunity to the petitioners to produce all documents
required to enable a proper assessment of the building. Petitioners are
granted one more opportunity to produce all records to prove that the
cost of construction of the different units was met by different persons
who claim ownership of the building. Such documents shall be produced
on or before 15.03.2025. The Assessing Authority shall, thereafter pass
fresh orders of assessment, after hearing the petitioners and if required,
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such other persons who may be found to be interested, within a period of
six months from 15.03.2025.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
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APPENDIX OF WP(C) 6675/2025
PETITIONERS' EXHIBITS :
Exhibit P1 COPY OF THE CO-DEVELOPMENT AND
CONSTRUCTION AGREEMENT DATED 22.05.2019
Exhibit P2 COPY OF THE BUILDING PERMIT DATED
13.03.2019 ISSUED IN THE NAME OF THE
PETITIONERS
Exhibit P3 COPY OF THE REGISTRATION CERTIFICATE
ISSUED BY THE KERALA REAL ESTATE
REGULATORY AUTHORITY
Exhibit P4 COPY OF THE CERTIFICATE OF EXTENSION DATED
18.07.2022 ISSUED BY THE KERALA REAL
ESTATE REGULATORY AUTHORITY
Exhibit P5 A SAMPLE COPY OF THE AGREEMENT FOR SALE
EXECUTED BY THE PETITIONERS WITH ONE OF
THE ALLOTTEE, MR. KUNHI ABDULLA K
Exhibit P6 A STATEMENT SHOWING DETAILS OF THE
DIFFERENT SHOP UNITS IN THE PROJECT SECURA
CENTRE
Exhibit P7 COPY OF THE OCCUPANCY CERTIFICATE DATED
21.11.2022
Exhibit P8 COPY OF THE SAMPLE DEMAND NOTICES DT.
16.01.2023 ISSUED BY THE KANNUR
CORPORATION FOR THE PROPERTY TAX IN
Exhibit P9 COPY OF THE NOTICE DATED 7.12.2022 ISSUED
UNDER SEC 9 (4) OF THE BUILDING TAX ACT
ALONG WITH THE TYPED COPY
Exhibit P10 COPY OF THE ASSESSMENT ORDER DATED
7.02.2023 IN FORM V ALONG WITH TYPED COPY
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Exhibit P11 COPY OF THE DEMAND NOTICE IN FORM VI
ISSUED BY THE 1ST RESPONDENT
Exhibit P12 COPY OF THE JUDGEMENT DATED 22 JANUARY
2024 IN WPC7856 OF 2023
Exhibit P13 COPY OF THE REPLY DATED 30 JANUARY 2024
FILED BY THE PETITIONERS
Exhibit P14 COPY OF THE ORDER NO. TOKNR/1120/2023-C2
DATED 27.01.2025
