Remanded

N.Jagadisan Nair v. the District Collector

Kerala HC22 Nov 2016WP(C)/11568/2016

Case brief

AI extract

What is this about?

High Court reviewed assessment orders under the Building Tax Act regarding disputed plinth areas. The Court confirmed the assessment of the first petitioner's building but remanded the case for reconsideration regarding the second petitioner's building, directing the authority to examine if the connecting pathway qualifies for exemption under the Act before imposing tax.

What did the court decide?

Impugned order regarding first petitioner confirmed; first respondent to reconsider assessment for second petitioner regarding pathway area within two months.

N.Jagadisan Nair Vs the District Collector — Landlord and Tenant | Kerala HC (2016)

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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.M.SHAFFIQUE

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TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938

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WP(C).No. 11568 of 2016 (U)

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PETITIONER(S):

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1. N.JAGADISAN NAIR, S/O.LATE NARAYANA KURUP, AGED 71 YEARS.

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2. E.N.PANKAJAKSHI AMMA, W/O.LATE NARAYANA KURUP, AGED 97 YEARS, BOTH ARE RESIDING AT SREEVILASAM THOPPIL, KARUKACHAL, KOTTAYAM-686 540.

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BY ADVS.SRI.T.C.SURESH MENON

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SRI.P.S.APPU SRI.A.R.NIMOD

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, KOTTAYAM-686 001.

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2. THE TAHSILDAR, CHENGANACHERRY TALUK, CHANGANACHERRY-686 101.

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3. THE REVENUE DIVISIONAL OFFICER, KOTTAYAM-686 001.

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4. THE VILLAGE OFFICER, KARUKACHAL VILLAGE, KOTTAYAM-686 540.

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BY GOVERNMENT PLEADER SRI.MATHEW VADAKKEL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 11568 of 2016 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1	TRUE COPY OF A TABLE SHOWING THE MEASUREMENT OF THE PREMISES OF BOTH THE PETITIONERS DATED - NIL.
EXT.P2	TRUE COPY OF THE APPEAL FILED BY THE 1ST PETITIONER DATED 09/04/2010.
EXT.P3	TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 24/08/2013.
EXT.P4	TRUE COPY OF THE REVISION PETITION FILED BEFORE THE 1ST RESPONDENT DATED 01/11/2013.
EXT.P5	TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 02/12/2015.
EXT.P6	TRUE COPY OF THE ASSESSMENT ORDER ALONG WITH THE DEMAND NOTICES DATED 01/01/2016.
EXT.P7	TRUE COPY OF THE CERTIFICATE ISSUED BY THE STATE BANK OF TRAVANCORE, KARUKACHAL BRANCH TO THE PETITIONER'S SON DTD. NIL.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

msv/

A.M. SHAFFIQUE, J.

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------------------------------------- W.P.(C) No.11568 of 2016

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Dated this the 22^nd day of November, 2016

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JUDGMENT

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Petitioners challenge the order of assessment as well as the appellate/revisional order passed by the concerned authorities under the Building Tax Act, 1975.

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The short facts involved in this writ petition would

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disclose that the first petitioner claims to be a co-owner of a plot of land having an area of 245 sq.mt. in Sy.No.89/18 of Karukachal Village. It is stated that when they have constructed the residential-cum-commercial building having three floors, the construction of the third floor was incomplete.

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Each floor has two residential apartments and the total plinth area of the same is 170.22 sq.mt and the commercial space on the ground floor is 55 sq.mt.

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Pursuant to the notice issued by the assessing authority under the Building Tax Act, the building was assessed

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W.P.(C) No.11568 of 2016

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to tax by which a demand was made computing the area at 897.65 sq.mt and demanding building tax at Rs.75,000/-. It is further contended that the second petitioner, the mother of the first petitioner owns a plot having an extent of 170 sq.mt. She constructed a small structure with tin sheets with a total area of 70 sq.mt. Tahasildar assessed the said building and called upon the second petitioner to pay building tax. The area is shown as 181.66 sq.mt. Petitioner challenged the order of assessment before the Revenue Divisional Officer who confirmed the demand. Further, revision was filed before the District Collector, who also confirmed the demand. It is challenging the same that this writ petition has been filed.

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The contention urged by the petitioners is twofold. The first contention is with reference to the main building, which is assessed to have an area of 897.65 sq.mt. According to the first petitioner, one of the floors has been constructed by his son and therefore a separate assessment has to be made. In respect of the building belonging to the 2^nd

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W.P.(C) No.11568 of 2016

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petitioner, a pathway connecting both the buildings have been constructed which is also taken into consideration for the purpose of assessment to tax.

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Learned counsel submits that there is sufficient

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material to indicate that the first petitioner's son had constructed portion of the building, which aspect had not been considered by any of the authorities. Further, the computation of the area which is used as a pathway for access to the mother's building has also been taken into account for the purpose of computing the area. Accordingly, the assessment order had been passed by which the area covered by the residential structure has been assessed for 866.78 sq.mt and commercial area for 208.87 sq.mt. and the building of the second petitioner at 181.03 sq.mt. The appellate authority as well as the revisional authority had confirmed the aforesaid demand.

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Counter affidavit has been filed by the second respondent inter alia stating that as per the records of the

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Village Office, the first petitioner owns a land of 34.1 ares in Sy.No.89/15 and 2.45 Ares in Sy.No.89/18. A multi-storyed residential cum commercial building was constructed on this land. It is reported by the Village Officer that the area of the commercial building was 475.9 sq.mt. The first petitioner was summoned for hearing. He did not raise any objection. Hence the assessment order and demand notice had been issued on 28.11.2005. Thereafter, on enquiry, it was found that the work of second and third floor were in progress and the building was not commercial alone parts but also has residential area. That apart, there existed a single storied commercial building in Sy.No.89/19 under the ownership of the second petitioner. In order to clarify the same, the Charge Officer was appointed and after conducting a detailed inspection, he reported the taxable area as 688.78 sq.mt residential area, 208.87 sq.mt. commercial area in the name of 1^st petitioner and 181.03 sq.mt in the ground floor under the ownership of 2^nd petitioner. The first petitioner was

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heard and he raised certain objections and the Taluk Surveyor was directed to remeasure. But, even after re-measurement, the area was the same. The first petitioner had given some documents and after examining the documents, the objections were rejected and orders were issued.

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During inspection by the Charge Officer, it was noticed that another building in the name of 2^nd petitioner is situated in ground floor. The said building was connected to another building with a roofed passage. Since the ground floor of the building of 2^nd petitioner was in commercial category, the space under roofed passage also satisfied the same purpose and the said area was also included for calculating the plinth area. The building was remeasured at different levels, but the result was the same.

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In regard to the claim of the first petitioner that the second floor is belonging to his son Kamalesh Narayanan, it is observed that no documents were produced to prove the same. He only produced an unregistered copy of a consent

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W.P.(C) No.11568 of 2016

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allowing his son to build the second floor. The title deed of the property and the permit from local body to construct the second floor was in the name of the first petitioner. It is therefore submitted that after the assessment orders were passed, the appellate as well as the revisional authority had considered the entire matter on merits and confirmed the demand.

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Heard the learned counsel for the petitioners and the learned Government Pleader.

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Learned counsel for the petitioners placed reliance on Division Bench judgment of this Court in P.P.Varghese v.

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Tahasildar and others [2006 KHC 363] in order to emphasis the definition of building. That was the case in which the question was whether the alleged co-owners were to be separately assessed or not. The land, in which the building was constructed belonged to one person. They claim to have jointly constructed the building and have to be assessed separately. The said contention was not accepted. This Court

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W.P.(C) No.11568 of 2016

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held that on facts, there was no evidence to show that the building in question was to be treated as a separate building and owned by four different persons.

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I do not think that the facts in the present case has

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any resemblance to the facts in P.P. Varghese (supra) . Building is defined under Section 2 (e) as under:

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“2(e): “building” means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure.” xxxxx

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“Explanation 2:- 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.”

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The plinth area is computed in terms of Section 6 which reads as under:

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“6. Determination of plinth area.- The plinth area of a building for the purpose of this Act, shall be the plinth area of the building as specified in the plan

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approved by the local authority or such other authorities as may be specified by Government in this behalf and verified by the assessing authority in such manner as may be prescribed.

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[Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for storage of fire wood or for any non-residential purpose shall not be taken into account for determining the plinth area of that building.]”

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Under normal circumstances, a building has to be treated as a simple block. Only in an instance where the 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.

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In the case on hand, the 1^st petitioner submits that though there is no assignment of the property in the name of his son, the building was constructed at the cost of his son. The assessment records indicates that the enquiry revealed that the property is owned by the first petitioner. Petitioners

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submit that the property is owned by the petitioner and his

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son. But no materials have been produced before the assessing authority to show that they are co-owners. Even otherwise, the benefit of explanation (2) is available only if 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. That is not the instance here. Even according to the petitioner, he had constructed a portion of the building and one portion was constructed by his son. But no such materials were produced before the authorities to prove that his son had contributed to the construction of a particular apartment or not. The owner is defined under Section 2 (i) as under:

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“(i) “owner” includes a person who for the time being is receiving, or is entitled to receive, the rent of any building, whether on his own account or on account of himself and others or as an agent, trustee, guardian or receiver for any other person or who should so received the rent or be entitled to receive it if the building or part thereof were let to a tenant.”

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Apparently, there is no material to indicate that his son was at any time the owner of the property or the space in which the building was constructed. Further, Section 6 makes it amply clear as to how the plinth area has to be determined. The plinth area for the purpose of the Act is the plinth area of the building as specified in the plan approved by the local authority or such other authorities as may be specified by Government and verified by the assessing authority. The only exemption is with reference to garage or any other erection or structure appurtenant to a residential building used for storage of fire wood or for any non-residential purpose taking into

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account the non-residential purpose. As far as the first contention is concerned, I do not find anything wrong on the part of the assessing authority in accessing the building of the first petitioner to tax.

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Coming to the second contention regarding the inclusion of covered passage to another building, perusal of assessment order would show that the said area had been

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computed along with a commercial area. In respect of second petitioner, the total area is 181.03 sq.mts, taking note of the structure which is used as an access from one building to the other building. Learned counsel for the petitioners submits that this cannot be treated as a building. As already indicated the definition of building under Section (2) (e) covers any such structure. But for the purpose of computing plinth area, perusal of proviso to Section 5 (5), indicates that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of fire wood or for any non-residential purpose shall not be added on the plinth area of the building. According to the petitioners, the area of the building is only 70 sq.mt. whereas the balance will form part of the structure which is being used as an entry to the other building. Learned counsel for the petitioners further submits that the pathway is not a covered area and it is an open area with only a roof with tin sheets which cannot be treated as an area which could be used

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W.P.(C) No.11568 of 2016

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for residential purpose or non-residential purpose. The said construction has been made only for beneficial enjoyment of both the buildings.

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The authorities having considered the matter, did not accept the contentions urged by the petitioners. But the question to be considered is whether the said area can be exempted in view of proviso to Section 5 (5) of the Act. Section 5 (5) of the Act with proviso reads as under:

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“(5) Where there are out-houses, garages or other structures appurtenant to the building for the more convenient enjoyment of the building, the plinth area of such structure shall be added on the plinth area of the main building and the building tax assessed accordingly.

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[Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for any non-residential purpose shall not be added on the plinth area of that building.]

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Such a contention is not seen considered by the authorities. Accordingly, to that extent, I am of the view that the matter requires reconsideration.

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Accordingly, this writ petition is disposed of as under:

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(i) The impugned orders insofar the building of the first

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petitioner is concerned, is hereby confirmed.

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(ii) With reference to the second petitioner, the

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assessment of building at 181.66 sq.mt is hereby set aside.

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(iii) The assessing authority shall consider whether the

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pathway area can be exempted in view of the proviso to Section 5 (5) of the Building Tax Act.

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(iv) Appropriate orders in this regard shall be passed,

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after notice to the second petitioner within a period of two months from the date of receipt of a copy of this judgment.

Sd/-

A.M. SHAFFIQUE

JUDGE

Scl/25.11.2016

N.Jagadisan Nair v. the District Collector

Case brief

What is this about?

What did the court decide?

N.Jagadisan Nair v. the District Collector

Case brief

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