Allowed

J.M.Crescent Apartment Owners Welfare as v. Tahsildar

Kerala HC2 Dec 2014WP(C)/12111/2007

Case brief

AI extract

What is this about?

The High Court of Kerala quashed an assessment order and demand notice that treated an apartment complex as a single taxable unit. The Court held that the authority ignored objections and relevant material showing individual ownership, requiring a fresh assessment based on specific statutory provisions.

What did the court decide?

Ext. P1 assessment order and Ext. P2 demand notice quashed; First Respondent directed to consider matter afresh after hearing petitioner and members within three months.

J.M.Crescent Apartment Owners Welfare as Vs Tahsildar — Writ and Judicial Review | Kerala HC (2014)

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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 A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936

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WP(C).No. 12111 of 2007 (P) ----------------------------

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PETITIONER(S):

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J.M.CRESCENT APARTMENT OWNERS WELFARE ASSOCIATION REPRESENTED BY THE SECRETARY J.M.CRESCENT APARTMENT OWNERS WELFARE ASSOCIATION P.J.ANTONY ROAD, MAMANGALAM, COCHIN-682 024

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BY ADV. SRI.S.RADHAKRISHNAN

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RESPONDENT(S):

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THE TAHSILDAR, KANAYANOOR TALUK, ERNAKULAM.

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THE DISTRICT COLLECTOR, ERNAKULAM.

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STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE GOVERNMENT SECRETARIAT, TRIVANDRUM.

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BY GOVERNMENT PLEADER SMT. LILLY K.T.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 12111 of 2007 (P)

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APPENDIX

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PETITIONER'S EXTS:

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EXT.P1: TRUE COPY OF THE ORDER OF ASSESSMENT NO. B5.14510/06 DATED 2-3-2007 ISSUED BY THE IST RESPONDENT.

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EXT.P2: TRUE COPY OF THE DEMAND NOTICE NO. B5.14510/06 DATED 2-3-2007

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EXT.P3: TRUE COPY OF THE ASSESSMENT NOTICE NO. B5/14510/06 DATED 20-01-2007

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EXT.P4: TRUE COPY OF THE OBJEDTION FILED BY THE PETITIONER ASSOCIATION DATD 15-02-2007

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EXT.P5: TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COMPANY COURT IN C.P. NO. 37 OF 1998 DATED 25-3-1999

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EXT.P6: TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CP NO. 37/1998 DATED 10-091999.

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A.K.JAYASANKARAN NAMBIAR, J.

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W.P. ( C) No. 12111 of 2007

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Dated this the 2^nd day of December, 2014

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JUDGMENT

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The petitioner is a registered Association of Owners of 85 Apartments in a 12 storied building. They are aggrieved by Exts. P1 assessment order and P2 demand notice whereby the building has been assessed to building tax by treating it as a single unit. It is stated that, pursuant to Ext. P3 notice that was received from the first respondent, the petitioner Association had filed detailed objections before the first respondent and pointed out that the construction of the building itself was completed after obtaining contribution from the various owners of the apartments and this was done after obtaining permission from the High court in C.P. No.37/1998. Insofar as the individual owners of the apartments had ownership over their respective apartments and had also contributed to the cost of construction of the building in question, the assessment had to

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W.P. ( C) No. 12111 of 2007

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be done based on Explanation 2 to Section 2 (e) of the Kerala Building Tax Act. It is pointed out by the petitioner that the objections were not considered by the first respondent who proceeded to assess the building as a single unit.

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I heard Sri. S.Radhakrishnan, the learned counsel counsel for the petitioner and Smt. Lilly, the learned Government Pleader on behalf of the respondents.

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On a consideration of the facts and circumstances of

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the case and the submissions made across the Bar, I note that Ext.P1 assessment order does not take into account the objections preferred by the petitioner, to the assessment of the building as a single unit. The petitioner had made available materials to show that the cost of construction of the building was met by the individual apartment owners and when there was such material to suggest that the assessment ought to have been done under Explanation 2 to Sec. 2 (e) of the Building Tax

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W.P. ( C) No. 12111 of 2007

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Act, it was incumbent upon the first respondent to consider the said material and pass a detailed order with regard to the manner in which the assessment had to be done. Insofar as Ext.P1 does not reveal an application of mind by the first respondent on the said aspects, I quash Ext.P1 assessment order as also Ext.P2 demand notice and direct the first respondent to consider the matter afresh after hearing the petitioner Association and its members and also perusing the documents produced by them to substantiate their contentions with regard to the necessity to assess the building by treating it as separate apartments. While passing orders in the matter, the first respondent shall also take note of the decisions of this Court in District Collector, Civil Station, Kakkanad and Others v. V.K. Sreekumari Kunjamma - 2011 (1) KLT 248 (FB), Varghese P.D. and Others v. State of Kerala and Others - 2013 (2) KLT 831 (DB), Natarajan v. State of Kerala- 2013 (4) KLT 364 and Thahasildar & Another v. Soman Peter (Dr.) - ILR 2014 (4) Kerala 327 and pass a speaking order referring

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W.P. ( C) No. 12111 of 2007

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to the documents relied upon by the petitioner, within a period of three months from the date of receipt of a copy of this judgment.

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This Writ Petition is allowed as above.

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Sd/- A.K.JAYASANKARAN NAMBIAR

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JUDGE

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