Kerala High Court
N.I. Iype vs Tahsildar, Taluk Office, Thirunakkara on 5 March, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
WP(C) NO. 4696 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
WP(C) NO. 4696 OF 2023
PETITIONERS :
1 N.I. IYPE
AGED 75 YEARS
S/O ITTY, NADUMPARAMBIL HOUSE,
PUTHUPALLY P.O., PUTHUPALLY VILLAGE,
KOTTAYAM DISTRICT, PIN - 686 011
2 JINTU IYPE
AGED 36 YEARS, S/O N.I. IYPE,
NADUMPARAMBIL HOUSE, PUTHUPALLY P.O.,
PUTHUPALLY VILLAGE, KOTTAYAM DISTRICT,
PIN - 686 011
BY ADV GIKKU JACOB
RESPONDENTS :
1 TAHSILDAR, TALUK OFFICE, THIRUNAKKARA
REVENUE TOWER, THIRUNAKKARA P.O.,
KOTTAYAM,, PIN - 686 001
2 SECRETARY TO GOVERNMENT
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001
3 PUTHUPPALLY GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY,
PUTHUPALLY P.O., KOTTAYAM,
PIN - 686 011
BY ADV K.S.ARUN KUMAR
WP(C) NO. 4696 OF 2023
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BY DR.THUSHARA JAMES, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 4696 OF 2023
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BECHU KURIAN THOMAS, J.
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W.P.(C).No.4696 of 2023
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Dated this the 5th day of March, 2025
JUDGMENT
Petitioners challenge Ext.P12 and Ext.P13 assessments carried
out under Sections 5 & 5A of the Building Tax Act, 1975 (for short, 'the
Act').
2. Petitioners, who are father and son respectively had
purchased adjacent properties by separate deeds. Ext.P1 is the sale deed
dated 19.09.2014 relating to the property purchased by the first
petitioner while Ext.P3 to Ext.P5 are the sale deeds relating to the
properties purchased by the 2 nd petitioner. The aforesaid properties were
jointly utilised for construction of a building pursuant to Ext.P7 permit
obtained in the name of both the petitioners. Subsequent to the
construction of a single building having four floors with eight apartments,
the basement and ground floors are used for commercial purposes.
Building tax assessment was carried out as per Ext.P13 and luxury tax
was also imposed as per Ext.P12 treating the entire building as a whole,
owned by the petitioners.
3. According to the petitioners, the cost of construction of the
building had been met by the petitioners jointly and therefore the
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buildings ought to have been assessed in their names separately.
Referring to the decision of this Court in Tahsildar, Kochi and Another
v. Dr.Soman Peter [2014 (4) KHC 154], it was submitted that when
cost of construction was met by all persons jointly, each such apartment/
flat should be deemed to be a separate building and each floor ought to
be assessed separately. It was further contended by the petitioners that
the impugned order has not even considered any of the relevant factors
and had merely proceeded to assess the building as one without bearing
in mind the legal principles.
4. The learned Government Pleader on the other hand
contended that the returns filed by the petitioners had not specified as to
whether the building was constructed by them separately and also
whether the cost of construction was met by any of them separately. In
the absence of any material, the assessment of the building as per
Ext.P13 cannot be said to be perverse warranting an interference by this
Court.
5. I have heard Adv.Gikku Jacob, appearing on behalf of the
petitioners, Smt.Dr.Thushara James, the learned Senior Government
Pleader as well as Sri.K.S.Arun Kumar, the learned Standing Counsel for
the 3rd respondent.
6. In the decision in Tahsildar, Kochi and Another v.
Dr.Soman Peter (supra), the Division Bench of this Court had rejected
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the contention of the Government that there must be evidence to show
that the cost of construction was equally met by all the persons who claim
ownership. This Court went on to hold that there is no such requirement
that the cost of construction must be shared equally by all persons who
claim to be owners as the question of sharing the expenses equally or
otherwise is a matter of arrangement between the said persons. It was
further observed as follows :
4. The learned Special Government Pleader (Taxes) submitted
that there is no evidence to show that the cost of construction
was shared equally by the petitioner, his wife and son. There is
no such requirement under Explanation 2 to S.2(e). The
question of sharing the expenses equally or otherwise is a
matter between the petitioner, his wife and son. The only legal
requirements are : (a) that the building consists of different
apartments or flats; (b) that they are owned by different
persons; and (c) that the cost of construction of the building was
met by all such persons jointly. The law makers used the
expression jointly and not equally. The different apartments or
flats in a building need not consist of equal plinth area or
amenities; the cost of construction of the different flats or
apartments may be different; and the sharing of the cost of
construction by all the owners need not necessarily be equally.
When property tax or building tax is levied, it need not be equal
in respect of all the apartments or flats in the building. Tax
would be levied depending on the plinth area and other factors
in respect of each apartment or flat in the building. The
contention put forward by the appellants in this regard is
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unsustainable, going by the plain language of Explanation 2 to
S.2(e) of the Act.
7. The charge of building tax as per Section 5 of the Act is on
the owner of the building. Petitioner's claim that the assessment ought
to have been carried out against each of the owners separately, as the
cost of construction was met by the petitioners together. On a perusal of
the impugned order, it is evident that the assessing officer had not
considered the question whether the building should be assessed
separately or in the name of both of them together. Of course, this Court
is mindful of the contention of the learned Government Pleader that the
return filed by the petitioners had not specifically mentioned that the
building ought to be assessed separately. However, bearing in mind that
the properties over which the building was constructed belongs to the
petitioners separately on the basis of separate title deeds, I am of the
view that the assessing officer ought to have considered whether it was a
building that requires an assessment separately in the name of each of
the owners.
8. Having regard to the nature of the order that is impugned,
I am satisfied that there was no application of mind. Further, the
impugned order is not even a speaking order, and the assessing officer
has merely proceeded to assess the building as one single building,
without reckoning any of the factors including Explanation to Section
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2(e). Hence, I find that the impugned orders are perverse and liable to
be set aside. However, considering the circumstances, a reconsideration
ought to be directed.
Accordingly, I set aside Ext.P13 order of assessment under
Section 5 of the Act as well as Ext.P12 order of the assessment under
Section 5A of the Act and direct the assessing authority to reconsider the
same afresh, after granting an opportunity of being heard to the
petitioners. An opportunity to produce all records and the documents to
prove their contentions shall also be granted to the petitioners. The
orders as directed above shall be passed as expeditiously as possible, at
any rate, within a period of six months from the date of receipt of a copy
of this judgment.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
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APPENDIX OF WP(C) 4696/2023
PETITIONERS' EXHIBITS :
Exhibit P1 TRUE COPY OF THE SALE DEED DATED 19.9.2014
REGISTERED AS DOCUMENT NO.1525/2014 OF
PUTHUPALLY S.R.O. IN FAVOUR OF THE 1ST
PETITIONER
Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPT DATED
7.4.2022 ISSUED TO THE 1ST PETITIONER FROM
VILLAGE OFFICE, PUTHUPALLY
Exhibit P3 TRUE COPY OF SALE DEED DATED 12.12.2012
REGISTERED AS DOCUMENT NO.2464/2012 OF
PUTHUPALLY S.R.O. IN THE NAME OF 2ND
PETITIONER
Exhibit P4 TRUE COPY OF THE SALE DEED DATED 30.3.2019
REGISTERED AS DOCUMENT NO.539/2019 OF
S.R.O., PUTHUPALLY IN FOVOUR OF
2NDPETITIONER
Exhibit P5 TRUE COPY OF THE SALE DEED DATED 25.5.2015
REGISTERED AS DOCUMENT NO.762/2015 OF
S.R.O., PUTHUPALLY, IN FAVOUR OF 2ND
PETITIONER
Exhibit P6 TRUE COPY OF THE LAND TAX RECEIPT ISSUED
TO THE 2ND PETITIONER FROM VILLAGE OFFICE,
PUTHUPALLY DATED 7.4.2022 FOR THE PROPERTY
COVERED BY EXHIBIT-P3 TO EXHIBIT-P5 SALE
DEEDS
Exhibit P7 TRUE COPY OF THE SITE APPROVAL AND
BUILDING PERMIT DATED 21.4.2022 ISSUED BY
THE 3RD RESPONDENT, SECRETARY, PUTHUPALLY
GRAMA PANCHAYAT IN THE JOINT NAME OF
PETITIONERS 1 AND 2
Exhibit P8 TRUE COPY OF THE DRAWINGS OF 1ST AND 2ND
FLOORS OF THE PROJECT DETAILS
COUNTERSIGNED BY THE SECRETARY, PUTHUPALLY
WP(C) NO. 4696 OF 2023
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GRAMA PANCHAYAT AS WELL AS THE ASSISTANT
ENGINEER, L.S.G.D. SECTION, PUTHUPALLY
GRAMA PANCHAYAT
Exhibit P9 TRUE COPY OF THE APPROVED DRAWING ISSUED
BY THE ELECTRICAL INSPECTOR, DEPARTMENT OF
ELECTRICAL INSPECTORATE, GOVERNMENT OF
KERALA FOR THE 1ST FLOOR ASSESSING 4 FLATS
ON 1ST FLOOR AS SEPARATE 4 UNITS/BUILDING
Exhibit P9(a) TRUE COPY OF THE APPROVED DRAWING ISSUED
BY THE ELECTRICAL INSPECTOR, DEPARTMENT OF
ELECTRICAL INSPECTORATE, GOVERNMENT OF
KERALA FOR ASSESSING 4 FLATS EACH ON 2ND
FLOOR AS SEPARATE 4 UNITS/BUILDING
Exhibit P10 TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
BASEMENT FLOOR BEARING NO.543/A ISSUED BY
THE SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
Exhibit P10(a) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
1ST FLOOR BEARING NO.543/B ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
Exhibit P10(b) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
FLAT BEARING NO.543/C ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
Exhibit P10(c) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
FLAT BEARING NO.543/D ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
Exhibit P10(d) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
FLAT BEARING NO.543/E ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
Exhibit P10(e) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
FLAT BEARING NO.543/F ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
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Exhibit P10(f) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
FLAT BEARING NO.543/G ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
Exhibit P10(g) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
FLAT BEARING NO.543/H ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
Exhibit P10(h) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
FLAT BEARING NO.543/I ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
DATED 24.1.2023
Exhibit P10(i) TRUE COPY OF THE OWNERSHIP CERTIFICATE FOR
FLAT BEARING NO.543/J ISSUED BY THE
SECRETARY, PUTHUPALLY GRAMA PANCHAYATH
Exhibit P11 TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE BASEMENT FLOOR BEARING NO.543/A
DATED 27.1.2023
Exhibit P11(a) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE GROUND FLOOR BEARING NO.543/B
DATED 27.1.2023
Exhibit P11(b) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE FLAT BEARING NO.543/C DATED
27.1.2023
Exhibit P11(c) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE FLAT BEARING NO.543/D DATED
27.1.2023
Exhibit P11(d) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE FLAT BEARING NO.543/E DATED
27.1.2023
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Exhibit P11(e) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE FLAT BEARING NO.543/F DATED
27.1.2023
Exhibit P11(f) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE FLAT BEARING NO.543/G DATED
27.1.2023
Exhibit P11(g) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE FLAT BEARING NO.543/H DATED
27.1.2023
Exhibit P11(h) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE FLAT BEARING NO.543/I DATED
27.1.2023
Exhibit P11(i) TRUE COPY OF THE PROPERTY TAX RECEIPT
ISSUED BY THE PUTHUPALLY GRAMA PANCHAYATH
FOR THE FLAT BEARING NO.543/J DATED
27.1.2023
Exhibit P12 TRUE COPY OF THE BUILDING TAX ASSESSMENT
ORDER NO.D4/124272-201332/2022 DATED
21.01.2023 ISSUED BY THE 1ST RESPONDENT
Exhibit P13 TRUE COPY OF THE DEMAND NOTICE AND THE
REVENUE RECOVERY NOTICE DATED 21.01.2023
BEARING NO. D4/124272-201332/2022 ISSUED
BY THE 1ST RESPONDENT
