The petitioner was the owner of 91 cents of land in Sy. No. 56/44 of Block No. 80 of Lalam Village. It is stated that this property was subsequently settled in favour of his two sons. In so far as the petitioner wanted to put up a building on the said property, and did not have the means to finance the entire construction on his own, he sought financial assistance from his two sons and his two sons-in-law, as also from his wife, for the purpose of effecting the construction. Accordingly, a plan was prepared and the necessary sanction was also obtained from the Pala Municipality on 13-04-1999. Ext.P1 is the agreement dated 2-4-2000, whereby the petitioner and the aforesaid persons who agreed to finance the construction decided upon the respective shares, in the building that was proposed to be constructed, in proportion to their contribution to the cost of construction of the building. While completing the building tax assessment, W.P. C. NO. 35922 of 2007 2 however, the first respondent assessed the building by treating it as a single unit and not as separate units under the ownership of the various persons in Ext.P1 agreement. This led the petitioner to file an appeal before the 2nd respondent which was dismissed by Ext.P5 order 27-8-2003. A Revision Petition filed by the petitioner against the said order before the 3rd respondent was also dismissed by Ext.P8 order dated 26-2-2004. The petitioner, therefore, challenged Ext.P8 order before this Court in Writ Petition 9247/2004. This Court by Ext.P9 judgment quashed Ext.P8 order and directed the 3rd respondent to re-consider the matter. Pursuant to the judgment of this Court, the 3rd respondent re-considered the matter and once again dismissed the revision petition by Ext.P12 order dated 24-10-2007. In Ext.P12 order, the 3rd respondent finds that the tax in respect of the land was paid only by two persons and further there was no document to establish the separate ownership of the various persons mentioned in Ext.P1 agreement over different portions of the building that was put up. The 3rd respondent also took objection to the fact that Ext.P1 agreement was not a registered W.P. C. NO. 35922 of 2007 3 one. In the Writ Petition, the petitioner impugns Ext.P12 order, inter alia on the ground that while passing Ext.P12, the 3rd respondent did not apply his mind to the factors that are relevant for consideration of the issue of how an assessment under the Kerala Building Tax Act, 1975, is to be completed in respect of a building where there are several persons who own separate portions of the building.
2. A counter affidavit has been filed on behalf of the respondents wherein it is pointed out that Ext.P12 order was passed by the 3rd respondent only on account of the fact that the petitioner had not produced any material to substantiate his contentions with regard to the separate assessment to be done in respect of the building. It is in particular, pointed out that there were no documents relied upon by the petitioner to substantiate his contention that the cost of construction of the building ha been separately met by the various contributories shown in Ext.P1 agreement.
W.P. C. NO. 35922 of 2007 4
3. I heard Sri. Mathew John, the learned counsel for the petitioner as well as Smt. Lilly, the learned Government Pleader for the respondents.
4. On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I am of the view that Ext.P12 order of the 3rd respondent suffers from a patent non-application of mind with regard to the factors that are germane to a consideration of the manner in which an assessment is to be done of a building which is jointly put up by several persons. In Ext.P12 order, the 3rd respondent appears to have placed considerable emphasis on the fact that Ext.P1 agreement was not registered and further that the land tax in respect of the land was paid only by two persons. These findings, cannot have any hearing on the issue to be considered under Explanation 2 to Sec.2 (e) of the Building Tax Act, 1975. I am of the view that the 3rd respondent ought to have considered the issue as to whether the several persons who entered into Ext.P1 agreement in fact had separate ownership over various portions W.P. C. NO. 35922 of 2007 5 of the building commensurate with their contribution to the cost of construction of the building. The 3rd respondent had necessarily to consider the documents, stated to have been produced by the petitioner, that showed the manner in which the cost of construction of the building was met and those that suggested that the various persons shown in Ext.P12 agreement do have separate ownership over the different portions of the same building. The 3rd respondent would also have to take note of the judgments 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. As these aspects are not seen dealt with by the 3rd respondent in Ext.P12 order, I quash the same and direct the 3rd respondent to consider the matter afresh and pass orders after hearing the petitioner and adverting to the documents produced by him in support of his contentions. The W.P. C. NO. 35922 of 2007 6 3rd respondent shall pass fresh orders within a period of three months from the date of receipt of a copy of this judgment and the said orders shall specifically advert to the documents produced and relied upon by the petitioner and shall also contain the reasons for the decisions arrived at by the 3rd respondent.
This Writ Petition is disposed as above.
Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE Ani/3/12/ /truecopy/ P.S.toJudge