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1994 DIGILAW 99 (KER)

Bhallathiripad v. Tahsildar

1994-02-24

T.L.VISWANATHA IYER

body1994
Judgment :- 77.5 cents of land in Sy.Nos.688/1,2 of Elmkulam Village belonged to a joint family of the four petitioners and fifteen others, including some minors. The family got disrupted in status by virtue of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976). The parties orally partitioned the property thereafter by metes and bounds on 30-1-1983, which they recorded in a written instrument dated 24-12-1983, namely Ext. P1. This document contains details of the specific portions of the property allotted to each of the nineteen members in the oral partition. 2. The members of the family decided to put up a series of shop rooms in the property, for which they obtained a loan from the Nedungadi Bank Ltd., Ernakulam. Since there were minors among the parties, permission of the District Court, Ernakulam was sought for and obtained, for giving the property allotted to them as security to the Bank, as per petitions, Guardian O.P.Nos.133 to 136 of 1983. The building was put up with the fund so obtained from the Bank, and as per sanction accorded by the Corporation of Kochi. The Corporation has registered the shop rooms standing on the properly of each of the owners separately, in the names of the respective owners, nineteen in number. Copies of the separate property tax assessment notices have been marked as Ext. P2 series. The aggregate of the annual value of all the shop rooms fixed by the Corporation of Kochi is Rs. 4,14,800/-. 3. The owners of the respective portions of the building, which, as stated earlier, stood on land allotted to each in partition, filed separate returns for purposes of assessment under the Kerala Building Tax Act, 1975 (the act). But the 'assessing authority, namely the first respondent, completed an assessment treating all the shop rooms comprised in the building as a single unit on a capital value of Rs. 70,59,120/-, and demanded an amount of Rs. 6,79,662/- as tax thereon. The basis of arriving at the capital value at the aforesaid amount is not disclosed in the order of assessment Ext. P3; but it is evident that the assessment was made under S.6(2) of the Act, in as much as the capital value of Rs. 70,59,120/- fixed in Ext. P3 is far in excess of the capital value of Rs. The basis of arriving at the capital value at the aforesaid amount is not disclosed in the order of assessment Ext. P3; but it is evident that the assessment was made under S.6(2) of the Act, in as much as the capital value of Rs. 70,59,120/- fixed in Ext. P3 is far in excess of the capital value of Rs. 41,48,000/- as per the fixation of annual value by the Corporation of Kochi. How the capital value got enhanced to Rs. 70,59,120/- is not disclosed in Ext. P3. The petitioners and the other owners challenged the consolidated assessment before the second respondent appellate authority raising inter alia contentions regarding the capital value of the building as also about the validity of the consolidated assessment made on them. But this appeal was dismissed by the second respondent by the order Ext. P6. The revision petition filed therefrom before the third respondent under S.13 of the Act was heard by the then District Collector on 14-8-1991, but the order Ext. P7 dismissing the revision petition was passed by his successor in office on 17-9-1991 without any further hearing of the matter. Petitioners are before this court with a challenge to Exts. P3, P6 and P7. 4. Even in the first instance, I may state that the order Ext. P7 is void as one passed in violation of the principles of natural justice as it has been passed by an officer who did not hear the revision petition. It is clear from Ext. P7 itself that the hearing was done by the then incumbent in office on 14-8-1991, but the order Ext. P7 was passed by the successor on 1V-9-1991. The person who heard the revision on 14-8-1991 has not passed the order, though from what appears in Ext. P7, he had made some notes of hearing in the note file. These notes were utilised by the successor and made into an order which he pronounced as Ext. P7. Admittedly there was no further hearing of the matter. In the circumstances the order passed by a person who did not hear the matter and who did not have any opportunity to come to grips with the issues arising for consideration, is viola live of the principles of natural justice and is liable to be quashed on this ground itself. 5. In the circumstances the order passed by a person who did not hear the matter and who did not have any opportunity to come to grips with the issues arising for consideration, is viola live of the principles of natural justice and is liable to be quashed on this ground itself. 5. But I am not resting my decision on this ground alone, as I am of the view that Ext. P7 and the orders confirmed thereby, namely Exts. P3 and P6, are invalid and unsustainable for other reasons as well. Firstly, the order of assessment Ext. P3 is vitiated for the reasons which I have set forth in my decision in Parur Tourist Home v. State of Kerala, 1993 (1) KLT 932. The capital value of the building, going by the annual value fixed by the Corporation of Kochi, is Rs. 41,48,000/- in the aggregate. Even the capital value returned by the nineteen owners adds up only to Rs. 49,45,920/-. Both these have been departed from, and the capital value fixed at Rs. V0,59,120/.- in the order of assessment Ext. P3. The appellate order Ext. P6 says that this was fixed on rental basis. But what exactly was the rental basis adopted is not disclosed in Ext. P6. Ext. P3 is totally silent about the basis of fixation of the capital value. I have discussed the matter in my decision in Parur Tourist Home and held that when an assessment is completed under S.6(2), the assessee is entitled to be informed the basis on which the capital value is proposed to be fixed, and the materials on which the assessing authority formed its opinion that the annual value fixed by the local body was too low. S.6(2) itself obliges the issue of a notice before the assessing authority fixes the annual value differently from that fixed by the local body. There has been no such disclosure of materials, or of the basis of the assessment Ext. P3, to any of the assesses in this case. Ext. P3 is thus vitiated for the reasons stated in the decision in Parur Tourist Home. The consequence of nondisclosure of the materials or the basis of the assessment is violation of the principles of natural justice, and failure to afford a reasonable opportunity to the assessee to be heard, which renders the assessment null and void. Therefore the confirmation of Ext. The consequence of nondisclosure of the materials or the basis of the assessment is violation of the principles of natural justice, and failure to afford a reasonable opportunity to the assessee to be heard, which renders the assessment null and void. Therefore the confirmation of Ext. P3 by Exts. P6 and PV is also null and void, though, even otherwise, they are vitiated for the reason that they do not also disclose the basis or materials of the assessment, apart from a bald assertion in Ext.P6 that it was made on rental basis. Exts. P3, P6 and PV are, for these reasons, unsustainable in law. 6. The consolidation of nineteen returns into one, and the assessment of the entire building as a single unit, is also not warranted either in law or on the facts of this case. As per the partition effected between the parties, which is recorded in Ext. P1, each of the nineteen persons is entitled to a defined identified portion of the 77.5 cents of land. Nothing has been pointed out to discredit the' genuineness of the oral partition or its validity. The portion of the building claimed by each member stands on his share of the land. It is true that the entire building is one in the sense that it is a continuous one with common walls separating the portions of two adjoining owners. But otherwise, each of the nineteen persons is the owner of the shop rooms standing on the share of the property allotted to him. In such circumstances, I am of the opinion that even without resort to Explanation 2 to S.2(e) of the Act, the portions of the building belonging to each are liable to be assessed only separately and not as one single consolidated building. Building is defined in S.2(e) as including a part thereof and therefore the total structure comprising of sixty seven shop rooms, though structurally one, constitutes different buildings in the hands of the respective owners, for the purposes of the Act. This is not a case where the structure is put up on co-ownership property, with each one of the co-owners claiming a portion of the building as his, though the land on which that portion stands is held in co-ownership. This is not a case where the structure is put up on co-ownership property, with each one of the co-owners claiming a portion of the building as his, though the land on which that portion stands is held in co-ownership. This is a case where each of the owners is the owner of the building as well as the land on which it stands, so that his title to the building is absolute and complete. He is the exclusive owner thereof. None of the owners of portions of the structure, has any right over the portions of the building held by the others. The building in its entirety does not belong to the nineteen persons together, merely because they are owners of portions thereof, any more than it can be said 'that street-houses in a Palakkad Agraharam or elsewhere belong jointly to all the citizens of the village. Since each of the nineteen persons is the owner of separate defined portion of the building with full title thereto, it has to be assessed in his hand separately. The assessment of the building in the hands of all the nineteen owners as a consolidated unit is not warranted by the provisions of the Act. As I staled earlier, this result follows even without resort to Explanation 2 to S.2(c), the applicability of which was disputed by the Government Pleader. 7. One reason stated by the appellate authority for not acting upon the partition was that it was oral and not by a registered instrument. But he has not made out any reason to doubt the genuineness of the oral partition. The other reason stated by the Government Pleader that the application for licence to the Corporation of Kochi was made jointly by the parties does not again appeal to me when the partition of the land has been clearly effected and the building was being put up, as one structure, though belonging to different owners in defined portions. In the light of the above discussion the consolidated assessment made on the petitioners and others is erroneous in law and contrary to the provisions of the Act. The orders Exts. P3, P6 and P7 are therefore quashed. But this will not preclude the first respondent from completing separate assessments on the nineteen owners over the I portions of the building owned by each of them. The orders Exts. P3, P6 and P7 are therefore quashed. But this will not preclude the first respondent from completing separate assessments on the nineteen owners over the I portions of the building owned by each of them. There will be no order as to costs.