Allowed

Sakeena v. the Tahsildar

Kerala HC8 Oct 2013WP(C)/13981/2009

Case brief

AI extract

What is this about?

Held the two separate buildings on the same plot are distinct units without structural oneness. Quashed orders that clubbed the plinth areas. Remitted the matter to authorities to pass separate assessment orders for each building within two months.

What did the court decide?

Reserved exhibits P4, P9 and P10 orders, remanded matter to First Respondent to pass separate assessment orders for two buildings within two months.

Sakeena Vs the Tahsildar — Landlord and Tenant | Kerala HC (2013)

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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 V.CHITAMBARESH

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TUESDAY, THE 8TH DAY OF OCTOBER 2013/16TH ASWINA, 1935

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WP(C).No. 13981 of 2009 (P)

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PETITIONER(S):

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SAKEENA, AGED 43 YEARS, D/O. MOIDEEN, RAHMANIYA NAGAR, MUTTATHODY VILLAGE VIDYANAGAR, KASARGOD DISTRICT.

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BY ADVS.SRI.M.SASINDRAN

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SRI.V.VENUGOPAL

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RESPONDENT(S):

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THE TAHSILDAR, KASARGOD DISTRICT.

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THE REVENUE DIVISIONAL OFFICER, KANHANGAD, KASARGOD.

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THE DISTRICT COLLECTOR, KASARGOD.

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STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER SRI. SHAIJ RAJ T.K.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.13981/2009

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1	:	^{A TRUE COPY OF THE SAL E DEEDS BEARING NO. 556/89.}
EXHIBIT P1(a)	:	A TRUE COPY OF THE SALE DEEDS BEARING NO. 1157/03.
EXHIBIT P2	:	A TRUE COPY OF THE BUILDING PERMIT AS PERMIT NO. 238/95-96
EXHIBIT P2(a)	:	A TRUE COPY OF THE BUILDING PLAN APPROVED BY THE SECRETARY, KASARAGOD DEVELOPMENT AUTHORITY.
EXHIBIT P3	:	A TRUE COPY OF THE BUILDING PLAN APPROVED BY THE SECRETARY, CHENGALA GRAMA PANCHAYAT.
EXHIBIT P3(a)	:	A TRUE COPY OF THE BUILDING ASSESSMENT REGISTER ISSUED BY THE SECRETARY, CHENGALA GRAMA PANCHAYAT FOR THE PERIOD FROM 93-94 TO 98-99.
EXHIBIT P3(b)	:	A TRUE COPY OF THE BUILDING ASSESSMENT REGISTER ISSUED BY THE SECRETARY, CHENGALA GRAMA PANCHAYATH FOR THE PERIOD FROM 2003-04.
EXHIBIT P4	:	A TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE FIRST RESPONDENT DATED 25.10.2004 IN D2 11741/04.
EXHIBIT P4(a)	:	A TRUE COPY OF THE NOTICE OF DEMAND DATED 25.10.2004.
EXHIBIT P5	:	A TRUE COPY OF THE TAX RECEIPT ISSUED BY THE MUTTATHODY VILLAGE OFFICER.
EXHIBIT P5(a)	:	A TRUE COPY OF THE TAX RECEIPT ISSUED BY THE MUTTATHODY VILLAGE OFFICER.
EXHIBIT P6	:	A TRUE COPY OF THE APPEAL.
EXHIBIT P7	:	A TRUE COPY OF THE APPLICATION FOR LOCAL INSPECTION.
EXHIBIT P8	:	A TRUE COPY OF THE REPORT OF THE SENIOR SUPERINTENDENT, REVENUE DIVISIONAL OFFICE IN KBTA 44/05.
EXHIBIT P9	:	A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT IN KBTA 44/05 DATED 11.12.2007.
EXHIBIT P10	:	A TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 10.11.2008.

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RESPONDENT(S) EXHIBITS : NIL

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/TRUE COPY/

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P.A. TO JUDGE.

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V. CHITAMBARESH, J

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WP(C) NO. 13981 OF 2009

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Dated this the 8^th day of October, 2013

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JUDGMENT

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The decision in District Collector Vs. Sreekumari Kunjamma [2011 (1) KLT 248 (FB)] is clearly distinguishable on the facts of this case. The reported decision dealt with the construction of an additional floor on the existing floor of a building ofcourse by the same owner. Therein the plinth area of both the floors have to be reckoned as defined under Section 2 (k) of the Kerala Building Tax Act, 1975. That is not the case in the instant one wherein the same owner has built two separate buildings ofcourse in the same plot.

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The following factors are significant:-

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(i) The property wherein the buildings

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are situated are covered by two separate sale deeds (Exts.P1 and P2).

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(ii) Both the buildings are covered by separate building permits (Exts.P2 series and P3 series).

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WP(C) No. 13981/2009

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(iii) There is no common construction

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or foundation or roof.

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(iv) There is no structural oneness or functional integrity. (See Marzook Vs.

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Simon [2012 (2) KLT 276] .

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Both the buildings have separate way of ingress and egress.

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Ext.P8 local inspection report filed during the pendency of the appeal before the second respondent throws light. The buildings are two separate units one having three residential quarters of total plinth area 159.86 square metres and another having four residential quarters of plinth area 180.06 square metres. Only if both the plinth area are totalled (which is impermissible) is the petitioner liable to pay luxury tax under Section 5 A of the Kerala Building Tax Act. Both the buildings are used for residential purpose only and there is no liability to pay luxury tax in respect of a commercial building.

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The mere fact that there is a staircase or any device to

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reach one unit from the other does not make both the buildings a single unit. The authorities have egregiously urged in clubbing

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WP(C) No. 13981/2009

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the two separate buildings into one for the purpose of reckoning plinth area. Consequentially the assessment of tax and the luxury tax under the Kerala Building Tax Act, 1975 deserves to be done afresh. I quash Exts.P4, P9 and P10 orders and remit the matter to the file of the first respondent. The first respondent shall pass separate orders of assessment in respect of the two buildings reckoning the plinth area separately. The needful shall be done within a period of two months from the date of receipt of a copy of this judgment.

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The Writ Petition is disposed of. No costs.

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V. CHITAMBARESH JUDGE

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ncd

Sakeena v. the Tahsildar

Case brief

What is this about?

What did the court decide?

Sakeena v. the Tahsildar

Case brief

What is this about?

What did the court decide?

What the court decided

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