Remanded

Royal Heights Apartment Owners Associati v. the Tahsildar and Others

Kerala HC5 Mar 2012WP(C)/735/2007

Case brief

AI extract

What is this about?

The High Court of Kerala referred the assessment of a 36-flat complex under the Kerala Building Tax Act back to the Tahsildar for reconsideration. The court directed the respondents to grant a hearing to the association to prove separate funding for the flats and to finalize proceedings within three months.

What did the court decide?

The first respondent directed to reconsider the matter, grant a hearing to the petitioner to substantiate the claim for building tax exemption under Explanation 2 to Section 2 (e), and finalize procee

Royal Heights Apartment Owners Associati Vs the Tahsildar… — Landlord and Tenant | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933

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WP(C).No. 735 of 2007 (K)

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PETITIONER(S):

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ROYAL HEIGHTS APARTMENT OWNERS ASSOCIATION, REG. 328/2006., REG. OFFICE: 3721 A, ROYAL HEIGHTS, ONDEN ROAD, CW-35, KANNUR -1, REPRESENTED BY ITS PRESIDENT, N.M.PADMANABHAN NAMBIAR AGED 66 YEARS, S/O.C.K.RAMAN NAMBIAR, NO.8B, ROYAL HEIGHTS, ONDEN ROAD, KANNUR-1.

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BY ADVS. SRI.M.K.SUMOD, SRI.KAUSER EDAPPAGATH, SMT.A.LOWSY.

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RESPONDENT(S):

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1. THE TAHSILDAR, KANNUR.

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2. THE VILLAGE OFFICER, KANNUR-1.

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3. STATE OF KERALA

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REP. BY THE CHIEF SECRETARY,

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TRIVANDRUM.

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BY GOVT. PLEADER SMT.LILLY K.T.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 735 of 2007 (K)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1	COPY OF THE CERTIFICATE OF REGISTERED SOCIETY ISSUED BY THE DISTRICT REGISTRAR (GENERAL), KANNUR DATED 03/08/2006.
EXT.P2	COPY OF THE RESOLUTION DATED 29/12/2006.
EXT.P3	COPY OF THE PARTICULARS OF ROYAL HEIGHTS APARTMENTS AND OWNERS ASSOCIATION MEMBERS.
EXT.P4	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(1) DATED NOVEMBER 2006.
EXT.P5	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(2) DATED NOVEMBER 2006.
EXT.P6	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(3) DATED NOVEMBER 2006.
EXT.P7	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(4) DATED NOVEMBER 2006.
EXT.P8	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(5) DATED NOVEMBER 2006.
EXT.P9	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(6) DATED NOVEMBER 2006.
EXT.P10	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(7) DATED NOVEMBER 2006.
EXT.P11	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(8) DATED NOVEMBER 2006.
EXT.P12	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(9) DATED NOVEMBER 2006.
EXT.P13	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(10) DATED NOVEMBER 2006.
EXT.P14	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(11) DATED DECEMBER 2006.

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(P.T.O.)

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WP(C).No. 735 of 2007 (K)

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EXT.P15	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(12) DATED DECEMBER 2006.
EXT.P16	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(13) DATED DECEMBER 2006.
EXT.P17	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(14) DATED DECEMBER 2006.
EXT.P18	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(15) DATED DECEMBER 2006.
EXT.P19	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(16) DATED DECEMBER 2006.
EXT.P20	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(17) DATED DECEMBER 2006.
EXT.P21	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(18) DATED DECEMBER 2006.
EXT.P22	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(19) DATED DECEMBER 2006.
EXT.P23	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(20) DATED DECEMBER 2006.
EXT.P24	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(21) DATED DECEMBER 2006.
EXT.P25	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(22) DATED DECEMBER 2006.
EXT.P26	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(23) DATED DECEMBER 2006.
EXT.P27	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(24) DATED DECEMBER 2006.
EXT.P28	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(25) DATED DECEMBER 2006.
EXT.P29	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(26) DATED DECEMBER 2006.
EXT.P30	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(27) DATED DECEMBER 2006.

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(P.T.O.)

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WP(C).No. 735 of 2007 (K)

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EXT.P31	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(28) DATED DECEMBER 2006.
EXT.P32	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(29) DATED DECEMBER 2006.
EXT.P33	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(30) DATED DECEMBER 2006.
EXT.P34	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(31) DATED DECEMBER 2006.
EXT.P35	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(32) DATED DECEMBER 2006.
EXT.P36	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(33) DATED DECEMBER 2006.
EXT.P37	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(34) DATED DECEMBER 2006.
EXT.P38	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(35) DATED DECEMBER 2006.
EXT.P39	COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT, NO.19175/06(36) DATED DECEMBER 2006.
EXT.P40	COPY OF THE REPRESENTATION TO THE 1ST RESPONDENT DATED 29/12/2006.
EXT.P41	COPY OF THE ACKNOWLEDGE CARD DATED 13/12/2006.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.A. TO JUDGE

rs.

P.R. RAMACHANDRA MENON J.

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W.P(C) No. 735 of 2007

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JUDGMENT

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The petitioner is an association of owners of the apartments of a flat complex having 36 flats. The particulars of ownership including the names of different owners and the flats owned and occupied by them with reference to the built up area of each apartment have been separately given in Ext. P3. The case of the petitioner is that, the above flat complex was constructed by the above co-owners, making use of the funds separately contributed by them and that they are entitled to have the benefit of 'Explanation 2' to Section 2 (e) of the Kerala Building Tax Act. However, without any regard to the same, the assessment was finalized by the first respondent, treating the whole building as a 'single unit' and thus attracting a huge liability, which is contrary to the Scheme of the Statute and the law declared by this Court in Kurian George Vs. Thahasildar (1995(2) KLT 457) and

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W.P.(C) No. 735 of 2007

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: 2 :

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Lissi Vs. Thahasildar (2000 (3) KLT 497).

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The learned Government Pleader appearing for the respondents submits that, in spite of issuance of notice, no proper documents were produced by the parties concerned to substantiate their contention that the building was constructed making use of funds separately provided by them, as contemplated under the relevant provisions of the Statute, so as to have the benefit provided under 'Explanation 2' to Section 2 (e) of the Act. The learned Government Pleader further submits that the law has been made clear by this Court in a recent decision as well i.e. District Collector Vs.

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Sreekumari Kunjamma (2011 (1) KLT 248). But the fact remains that, nothing was brought on record in support of the contention of the respondents that the petitioner was given an opportunity to substantiate their contentions, more so, when the respondents have not chosen to file any counter affidavit so far, though the matter is pending consideration for more than five years.

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W.P.(C) No. 735 of 2007

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: 3 :

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When the matter came up for consideration on

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08.01.2007, the coercive proceedings were intercepted, on condition that, the members of the petitioner association, as enlisted in Ext. P3, satisfied a sum of Rs. 1,400/- each. The learned counsel for the petitioner submits that the said condition has been complied with. Since the pleadings raised by the petitioner have not been controverted by the respondents, this Court finds it fit and proper to have the matter reconsidered by the first respondent.

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In the said circumstances, the first respondent is directed to reconsider the matter, giving an opportunity of hearing to the petitioner and those enlisted in Ext. P3 to substantiate their case as to the eligibility to have the benefit of Explanation 2 to Section 2 (e) of Act, in view of the decisions cited supra. The proceedings as above shall be finalized, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. It is made clear that, if any liability is to be

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W.P.(C) No. 735 of 2007

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: 4 :

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satisfied by the members of the petitioner association as enlisted in Ext. P3, the steps for recovery if any shall be confined to the balance amount, after giving due credit to the amount deposited by the persons concerned by virtue of the interim order dated 08.01.2007.

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The Writ Petition is disposed of.

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Sd/-

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P. R. RAMACHANDRA MENON, (JUDGE)

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kmd

Royal Heights Apartment Owners Associati v. the Tahsildar and Others

Case brief

What is this about?

What did the court decide?

Royal Heights Apartment Owners Associati v. the Tahsildar and Others

Case brief

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