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2024 DIGILAW 1325 (KER)

K. Balamani, W/o. Janardhanan v. Village Officer

2024-10-16

HARISANKAR V.MENON

body2024
JUDGMENT : The petitioner, along with her husband Sri.K.Janardhanan, was holding certain landed properties. In the said landed property, which was lying contiguous, the husband constructed a building, a portion of which was reckoned as a residential building and the balance as non-residential. Such construction was completed by the husband in the year 2000. It is stated that the petitioner obtained a separate building permit for construction of the first floor over the ground floor constructed by the husband as above, from the Panchayat. On the basis of the said building permit, the petitioner herein constructed the first floor, having three rooms. The said construction, it is stated, was over by the year 2010. The petitioner points out that the portion constructed by the husband and the portion constructed by the petitioner were being numbered separately by the Panchayat and property tax was also collected by the Panchayat separately, relying on Ext.P1 series of receipts issued by the Panchayat in favour of the wife and Ext.P2 series of receipts in the name of the husband. It is further pointed out that electricity connection is also obtained separately by the husband and wife with reference to Ext.P3 series and Ext.P4 series. 2. However, the constructed building as above, consisting of the ground floor constructed by the husband and the first floor constructed by the wife, was subjected to luxury tax assessment under Section 5A of the Kerala Building Tax Act, 1975 (hereinafter referred to as the “Act” for short). The said order was the subject matter of challenge before the Appellate Authority and the Appellate Authority directed a reconsideration, taking into account the fact that a portion of the building was being used as residential and the balance as non-residential. Subsequent to the above remand, the assessment was completed afresh by the assessing authority by reckoning the constructed building as a single unit after reducing the non-residential portion, on account of which the constructed area exceeded the limit prescribed under Section 5A of the Act – 278.7 m2. 3. The said revised assessment was the subject matter of appeal before the Appellate Authority, and since the Appellate Authority rejected the appeal, a further revision was moved before the District Collector. 3. The said revised assessment was the subject matter of appeal before the Appellate Authority, and since the Appellate Authority rejected the appeal, a further revision was moved before the District Collector. The 3rd respondent District Collector issued Ext.P5 order, finding as under; “After going through the records placed before me and the reports of the Deputy Collector (RR) and Senior Superintendent (Suit), it is obvious that the building is single entity though it exists in the land of 2 persons Smt.Balamani and Sri.Janardanan. Being husband and wife, Sri.Janardhanan and Smt.Balamani are using the building as a single entity. As per the Panchayath records, the rooms in ground floor of the building is in the name of Janardanan and the rooms in first floor of the building is in the name of Smt.Balamani. But it is not as per the Land document. The building has been given permit as residential building from panchayat. Hence this building cannot be treated as Other Building. Only one room is non residential. That was already assessed as “Other Building”. Hence the balance portion of the building is to be treated as a single residential building. As the plinth area of the residential portion exceeds the limit of luxury tax, Revision petitioner is liable to pay the Luxury Tax. Revision Petition is hereby rejected. The Tahsildar Hosdurg should take urgent steps to realize the luxury Tax from the revision petitioner. The Revision Petition is disposed of as above.” Thus, the revision petition filed by the petitioner stood rejected by the impugned order at Ext.P5. 4. A detailed counter affidavit is filed by the 3rd respondent. In the said counter affidavit, the 3rd respondent points out that the assessment completed pursuant to the remand as above is after carrying out necessary enquiries in that regard, and there is no illegality in the finalisation of the assessment and the revision order impugned in this writ petition. The counter affidavit has also relied upon the enquiry conducted by the Charge Officer, produced as Ext.R3(d). 5. I have heard the learned counsel for the petitioner, Sri.Sayed M.Thangal, the learned Government Pleader for respondents 1 to 3, and Sri.A.Arunkumar, the learned Standing Counsel for the 5th respondent. Though the husband, Sri.K.Janardhanan is in party array, there is no appearance on his behalf, even after service of notice. 6. 5. I have heard the learned counsel for the petitioner, Sri.Sayed M.Thangal, the learned Government Pleader for respondents 1 to 3, and Sri.A.Arunkumar, the learned Standing Counsel for the 5th respondent. Though the husband, Sri.K.Janardhanan is in party array, there is no appearance on his behalf, even after service of notice. 6. The short issue arising for consideration in this writ petition is as regards the sustainability or otherwise of Ext.P5 order issued by the 3rd respondent. 7. The admitted facts are that a building was constructed in a property, owned by the petitioner and her husband jointly. The ground floor was constructed by the husband, as is clear from Ext.P2 series, as also the separate electricity connection obtained from the Electricity Board. The petitioner constructed the first floor over the building constructed by the husband on the basis of a separate building permit. The said building constructed is also separately numbered and property tax demanded/collected is as evidenced by Ext.P1 series. The first floor also has a separate electricity connection, as evidenced by Ext.P4 series. It is in the above situation, that the building is sought to be assessed as a single unit. 8. In this connection, a reference to the relevant provisions of the Kerala Building Tax Act, 1975, would be beneficial. It is under Section 5A of the statute that luxury tax is being demanded. Luxury tax is payable only in respect of “residential buildings having a plinth area in excess of 278.7 m2”. Thus, luxury tax gets attracted only when a residential building is being constructed with a plinth area of 278.7m2. Here, though there is a dispute as regards the building constructed by the petitioner and her husband, the learned Government Pleader points out that the non-residential portion has been given deduction pursuant to the first round of appeal and the orders issued thereunder. Therefore, he points out that there is no requirement for any further interference in that regard. 9. However, I notice that, going by Exts.P1 series, P2 series, as well as Exts.P3 series and P4 series, the portion of the building constructed by the petitioner’s husband and that constructed by the petitioner were being separately numbered and separately dealt with by the Panchayat. Even the Electricity Board had given separate electricity connections as regards the said two portions of the same building. Even the Electricity Board had given separate electricity connections as regards the said two portions of the same building. It is only that, going by the revisional order at Ext.P5, there is only one single entrance to both the buildings. However, the fact that both portions are being separately identified, cannot be disputed. In this connection, a reference to Section 2(e) as well as the explanation 2 thereto would be relevant, which reads as under; “2. Definitions.- In this Act, unless the context otherwise requires,- (e) “building” means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure. Explanation 2.-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.” Thus, the statute has provided that, even a single building consisting of different apartments/flats owned by different persons, have to be treated separately when the cost of construction of the building was being met by such persons jointly. Thus, the statute visualises the situation where one or more persons construct a common building, and different portions are being allotted to different persons. However, in the case at hand, in my opinion, even without a reference to the above provision, it is to be found that the husband constructed the building as early as in the year 2000 and the wife constructed her portion of the building in the year 2010. Therefore, taking cue from the above explanation, it has to be held that both portions are to be considered separately for the purpose of assessment under the provisions under the Act. 10. I also notice that this Court in Jessy Mathew and Another v. District Collector, Ernakulam and Others [ 2013 (3) KLT 246 ], had occasion to consider an almost identical situation, where a husband and wife constructed a building consisting of two floors, of which the ground floor was owned by the husband and the first floor was owned by the wife. The question arose as to the imposition of tax under the Act with reference to clubbing of the two portions as one. Considering this issue, this Court has found as under; “3. There is no warrant for the conclusion that the entire structure belongs to one and the same person and that the total area has to be reckoned for the purpose of tax. Different floors can be owned by different persons as per the scheme of the Kerala Building Tax Act. The ‘owner’ has been defined under Section 2(i) of the Act as a person entitled to receive rent and the liability to pay tax under Section 5(6) of the Act is on its ‘owner’ only. Each floor has to be deemed to be a separate building when the cost of construction has been met jointly as evident by explanation 2 to section 2 of the Kerala Building Tax Act, 1975. 4. Exts.P8, P9 and P10 orders passed by respondents 3, 2 and 1 respectively are vitiated by an error of jurisdiction. The liability to pay tax as demanded under Ext.P11 order would arise only if both the areas of the ground floor and the first floor are totaled. I have no option except to quash Exts.P8 to P11 orders under such circumstances. The third respondent is directed to re-assess the tax under the Kerala Building Tax Act in respect of the separate floors as against the wife and the husband separately. The needful shall be done within a period of two months from the date of receipt of a copy of this judgment.” Thus, the findings contained in the afore judgment would also apply to the facts and circumstances of the case at hand. 11. Though the learned counsel for the petitioner would also rely on Ananthapadmanabhan Nair v. District Collector [ 2016 (1) KLT 485 ], I am of the opinion that the said judgment was rendered with reference to the application of the provisions under explanation 2 to Section 2(e) of the Act. However, in the case at hand, even without reference to the above provision, in my opinion, the ground floor and the first floor are to be treated separately. 12. Therefore, I am of the opinion that the petitioner is entitled to succeed. Resultantly, this writ petition would stand allowed, by setting aside Ext.P5 order issued by the 3rd respondent. However, in the case at hand, even without reference to the above provision, in my opinion, the ground floor and the first floor are to be treated separately. 12. Therefore, I am of the opinion that the petitioner is entitled to succeed. Resultantly, this writ petition would stand allowed, by setting aside Ext.P5 order issued by the 3rd respondent. The respondents are directed to consider the portion of the building constructed by the petitioner and the portion of the building constructed by her husband separately and thereafter apply the provisions of the Act.