TAHSILDAR Vs. SOMAN PETER

JUDGEMENT

(1.) The petitioner was the owner of an extent of nine cents of land in Ernakulam Village in Kanayannur Taluk. There was an old residential building and a commercial building in the property. The petitioner decided to demolish those buildings and to construct a building for commercial as well as residential purposes. The petitioner executed Exts. P1 and P2 settlement deeds in favour of his wife and son respectively on 21.10.2004 by which the wife and son of the petitioner became fractional owners of the property. They jointly applied for a loan from the Housing Development Finance Corporation and Ext. P3 agreement dated 16.11.2004 was executed for getting a loan of Rs. 25 lakhs. They constructed a building consisting of three floors in the property. Even in Exts. P1 and P2 settlement deeds executed by the petitioner in favour of his wife and son respectively, it is mentioned that a building consisting of three floors was proposed to be constructed retaining the ownership of the first floor with the petitioner, ownership of the second floor with his wife and the ownership of the third floor with his son. The petitioner, his wife and son took additional loans from the Housing Development Finance Corporation as per Exts. P4 and P5 agreements. The construction of the building was completed and the Corporation of Cochin assessed the building for the purpose of property tax in the names of the petitioner, his wife and son with respect to each floor and property tax was assessed accordingly.

(2.) However, building tax was assessed under the Kerala Building Tax Act, 1975 treating the building as a single unit, as per Ext. P9 assessment order dated 5.8.2006. The petitioner challenged the same in appeal. The Appellate Authority dismissed the appeal as per Ext. P10 order dated 14.7.2009 and that order was confirmed in revision as per Ext. P14 revisional order dated 1.12.2010. The petitioner challenged Exts. P9, P10 and P14 orders in W.P.(C) No. 8136 of 2011. The learned single Judge, by the judgment under challenge in this Writ Appeal, allowed the Writ Petition and quashed Exts. P9, P10 and P14 orders and directed the assessing authority (Tahsildar) to pass fresh assessment orders, treating each one of the units in the building as a separate one and giving the petitioner the benefit of Explanation 2 to Section 2(e) of the Kerala Building Tax Act. This Writ Appeal is filed by the Tahsildar and the District Collector challenging the judgment of the learned single Judge.

(3.) As per the charging Section, viz., Section 5, the building tax shall be payable by the owner of the building, as provided under Section 5(6) of the Kerala Building Tax Act. In the present case, the petitioner alone is not the owner of the building, but the owners of the building are the petitioner, his wife and son. Section 2(e) of the Kerala Building Tax Act defines "building". Explanation 2 to Section 2(e) provides that 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. If so, building tax should be assessed with respect to each floor of the building, since each floor would constitute a building within the definition of Section 2(e).