M HASSAINAR HAJI Vs. TAHSILDAR TALIPARAMBA

JUDGEMENT

(1.) The petitioner was the owner of a property having an extent of 2.128 cents in R.S. No. 104/1 of Taliparamba ansom and desom. He constructed a two storied building therein, that is one having a ground floor and a first floor. He transferred the land and the building thereafter to one Abdulla Kusaliar, who, in turn sold it to the third respondent in the year 1979, and put him in possession. The third respondent added one more floor to the building besides making improvements to it. It is the assessment to building tax of this building as rennovated and added that constitutes the subject-matter of this original petition, the assessment being under the Kerala Building Tax Act, 1975 (the Act).

(2.) So far as the building constructed by the petitioner was concerned, consisting of two floors, its capital value was less than the assessable limit, and it was not therefore liable to be taxed under the Act. It was so stated in Ext. P2 dated 26-3-1988, a communication sent by the assessing authority, namely the Tahsildar, Taliparamba to the petitioner. After the second floor was added by the third respondent, the capital value of the building exceeded the basic minimum of Rs. 75,000/- and it became assessable to tax by virtue of Sec. 5(3) of the Act. It was so assessed by the Tahsildar by his proceedings Ext. P4 dated 1-2-1988 on a capital value of Rs. 3,48,000/- with a liability for tax of Rs. 10,850/-. The Tahsildar apportioned a major portion of this liability, namely Rs. 8,988/- to the petitioner with reference to the ground and first floor constructed by him; the balance Rs. 1,872/- was made payable by the third respondent, for the second floor put up by him. This apportionment was made by the proceedings Ext. P5, but it does not disclose any basis for the apportionment except to mention the portions of the building constructed by the petitioner and the third respondent. The petitioner challenged the assessment and the demand in revision before the District Collector under Section 13 of the Act, but the latter affirmed the assessment by his order Ext. P9. In doing so, he stated that the petitioner was the owner of the building and therefore liable for the tax demanded. He also made reference to the obligation undertaken by the petitioner in his deed of transfer to Abdulla Musaliar, which was reiterated by him in a statement made before the Revenue Inspector, Taliparamba on 15-8-1987, that he will continue to be liable for the tax payable in respect of the two floors of the building constructed by him. The order Ext. P9 was accordingly passed affirming the liability for the tax on the petitioner in the proportion referred to earlier. Petitioner challenges Exts. P4, P5 and P9.

(3.) The petitioner transferred the property at a time when the assessability or otherwise of the two floors constructed by him had not been finally decided. That decision was rendered later, and his non-liability was declared by Ext. P2 dated 26-3-1988, about ten years after the transfer was effected. It was at that stage, and when the question of his liability was in a nebulous state, that the petitioner had undertaken to make payment of the building tax, if any, payable for the construction made by him. Since however, the capital value of the building constructed by him was within the exempted limit, the petitioner was not liable to pay any building tax for the portions of the building constructed by him. The undertaking to pay building tax, if any, made in the deed of assignment as also before the Revenue Inspector had therefore no effect and did not fasten any liability on the petitioner. The reliance placed on this undertaking by the District Collector, in the order Ext. P9, is misconceived, and without a proper understanding of its true nature or effect or the intention behind it. The intent of the undertaking was only to accept liability for any tax that may be payable for the two floors, at the time of the construction. The petitioner cannot be imputed with any intention to undertake liabilities arising in future by reason of any rennovations or additions made by his transferees, when the construction made by him, itself was free of any liability.