Kerala High Court
V.C.Homes (P) Ltd vs The District Collector on 12 March, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
WP(C) NO. 10562 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
WP(C) NO. 10562 OF 2023
PETITIONERS:
1 V.C.HOMES (P) LTD.,
DOOR NO.34/2288, FIRST FLOOR, MAMANGALAM,
PALARIVATTOM P.O. KOCHI - 682 025, HAVING ITS
REGISTERED OFFICE AT, FLORENCE, BY PASS ROAD
EDAPPALLY, ERNAKULAM - 682 024 REPRESENTED BY ITS
DIRECTOR JORTIN ANTONY, AGED 55 YEARS
S/O V.C.ANTONY, VELAMKALAM HOUSE
THRIKKAKARA, KAKKANAD, ERNAKULAM - 682 021.
2 PIOUS ABRAHAM, AGED 67 YEARS
S/O. PAPPI ABRAHAM, VELAMKALAM HOUSE,
NADUBHAGOM MURI NEDUMUDI P.O.,
ALAPPUZHA, PIN - 688 508.
3 JIJO THOMAS, AGED 56 YEARS
S/O. K.V.THOMAS, KARIKKAMPILLIL HOUSE
THRIKKAKARA, VAZHAKKALA VILLAGE,
ERNAKULAM, PIN - 682 021.
4 M/S. CONFIDENT PROJECTS RESIDENTIAL,
HAVING ITS REGISTERED OFFICE AT NO.574,
PARK HOUSE, 80 FEET ROAD, 8TH BLOCK,
KORAMANGALA BANGALORE - 560 068,
REPRESENTED BY ITS PARTNER, T.A JOSEPH,
AGED 60 YEARS, S/O. LATE T.J. ALEXANDER ,
THERUVIPARAMBIL HOUSE, KRRA NO.4,
VENNALA DESOM AND P.O., EDAPPALLY SOUTH VILLAGE,
KANAYANNUR TALUK, ERNAKULAM, PIN - 682 028.
BY ADVS.
S.SHANAVAS KHAN
S.INDU
KALA G.NAMBIAR
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RESPONDENTS:
1 THE DISTRICT COLLECTOR,
CIVIL STATION, KAKKANAD,
ERNAKULAM, PIN - 682 030.
2 THE REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE,
FORT KOCHI, ERNAKULAM, PIN - 682 001.
3 THE TAHSILDAR,
TALUK OFFICE, KANAYANNUR,
ERNAKULAM, PIN - 682 313.
4 THE VILLAGE OFFICER
KAKKANAD VILLAGE
THRIKKAKARA, ERNAKULAM, PIN - 682 021.
GP JASMIN M.M
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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BECHU KURIAN THOMAS, J.
......................................................
W.P.(C) No.10562 of 2023
...................................................
Dated this the 12th day of March, 2025
JUDGMENT
Petitioners challenge Ext.P10 order of assessment under the Kerala
Building Tax Act, 1975 [for short, 'the Act'].
2. Petitioners 1 to 3 are the owners of a land, over which an apartment
complex has been constructed by the 4 th petitioner. The building by
name 'Confident Gardenia' has a total plinth area of 5085.86 sq.mtrs.,
with basement+ground floor+7 floors. According to the petitioner, the
construction of the building was completed on 02.12.2021 as per the
occupancy certificate issued by the Thrikkakara Municipality. Subsequent
to the demand for filing a return, petitioners submitted Ext.P5 letter
seeking time. Thereafter, produced documents indicating that the
building consists of 56 apartments, which needs to be assessed
separately. Ext.P8 is the document purported to have been submitted by
the petitioners before the assessing authority.
3. According to the petitioners, out of 56 apartments, 16 were allotted to
the share of the owners of the land, while 34 apartments were registered
prior to 11.12.2022, and 2 apartments were registered after the said
date. 4 apartments remain unregistered. Petitioners contend that,
despite giving information regarding the cost of construction having been
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met by the different apartment owners, the assessing authority imposed
Rs.15,08,200/- as building tax as per Ext.P10 order dated 11.12.2022,
without granting an opportunity of hearing and without even passing a
speaking order. It is in such circumstances that the petitioner has
approached this Court, under Article 226 of the Constitution of India,
contending that the order violates the principles of natural justice.
4. I have heard Sri.S.Shanavas Khan, the learned counsel for the petitioner
as well as Smt.Jasmin M.M., the learned Government Pleader.
5. As per explanation 2 to Section 2 of the Act, 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.
6. In view of the above statutory provision, the primary consideration of an
assessing authority must be whether a building is an apartment and, if
so, whether the cost of construction was met by the owners of the said
building, jointly. If the cost of construction of the building was met
jointly, as mentioned above, then each of the apartments should be
deemed to be a separate building, requiring separate assessment. The
aforesaid position is supported by the decision in Bavasons
Constructions Pvt. Ltd. v. State of Kerala and Others [2007 (3) KLT
101].
7. It is evident on a reading of the statutory provisions as well as the above
mentioned judgment that the question whether the apartment owners
are eligible for separate assessment or not is a finding of fact, which will
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have to be arrived at by the assessing authority after considering the
respective agreements entered into with the owners of apartments and
after verifying the materials produced by the apartment owners
regarding the cost of construction.
8. On a perusal of the impugned order of assessment, it is explicit that, the
assessing authority had failed to appreciate any of the legal components
of assessment and instead, without any reason, imposed building tax on
the petitioner for the entire building, consequent luxury tax was also
imposed. This Court has time and again observed that the orders of
assessment under the Act should be speaking orders, taking into account
the material particulars required for assessing the building. In this
context reference is made to the decision in Abraham Thomas and
others v. State of Kerala and others 2012 (2) KHC 792.
9. Since the impugned order is not a speaking order and is perverse to the
extent it has not considered any relevant aspects required for
assessment, I am of the view that the same is liable to be interfered with
and a fresh consideration be directed.
Accordingly, the following directions are issued :-
(i) Ext.P10 and P11 orders of assessment under the Act
issued under Section 5 and 5A of the Act are hereby set
aside.
(ii) The third respondent is directed to re-consider the
matter afresh after granting an opportunity of hearing to
the petitioner and pass fresh orders, within a period of six
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months from the date of receipt of a copy of this judgment.
(iii) Petitioners shall appear before the third respondent on
04.04.2025 and thereafter an opportunity shall be granted
to the petitioners to produce all the required documents.
(iv) If in case petitioners fail to produce the necessary
documents, within the time provided by the third
respondent, the third respondent will be at liberty to
proceed in accordance with law.
The writ petition is allowed.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/13/03/2025
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APPENDIX OF WP(C) 10562/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPLETION CERTIFICATE DATED
11/09/2021 SUBMITTED BY PETITIONERS 1 TO 3
BEFORE THE THRIKKAKARA MUNICIPALITY
EXHIBIT P2 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED
01/12/2021 ISSUED BY THE SECRETARY,
THRIKKAKARA MUNICIPALITY
EXHIBIT P3 TRUE COPY OF THE JOINT VENTURE AGREEMENT
DATED 30/06/2017 BETWEEN PETITIONERS 1 TO 3
AND 4TH PETITIONER
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 16/12/2021
ISSUED BY 3RD RESPONDENT TO PETITIONERS 1 TO
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 23/06/2022
SUBMITTED BY PETITIONERS BEFORE THE 3RD
RESPONDENT
EXHIBIT P6 TRUE COPY OF THE RECEIPT EVIDENCING THE
ACCEPTANCE OF EXT.P5
EXHIBIT P7 TRUE COPY OF THE LIST OF OWNERS OF 56
APARTMENTS SUBMITTED BY THE PETITIONERS
EXHIBIT P8 TRUE COPY OF THE LIST OF OWNERS IN WHOSE
FAVOURS APARTMENTS WERE REGISTERED
EXHIBIT P9 TRUE COPY OF THE LIST OF OWNERS WHO PURCHASED
THE APARTMENT FROM THE SHARE OF THE LAND
OWNER I.E PETITIONERS 1 TO 3
EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS DATED 11/12/2022
OF THE 3RD RESPONDENT
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 12/12/2022
ISSUED BY THE 3RD RESPONDENT
EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 09/10/2017 IN
W.P. (C) NO. 40899/2016 OF THIS HON'BLE COURT
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EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 16/07/2018 IN
W.P. (C) NO. 30685/2017 OF THIS HON'BLE COURT
EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 18/03/2022 IN
W.P(C) NO.6508/2022 THIS HON'BLE COURT
