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Shenoy Real Estates Private Ltd. versus The Tahsildar & Others

    WA.No.1737 of 1998

    Decided On, 03 September 2003

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K.A. ABDUL GAFOOR & THE HONOURABLE MR. JUSTICE J.M. JAMES

    For the Appellant: Suseela R. Bhatt, Advocates. For the Respondent : K.G. Bhaskaran, Government Pleader.



Judgment Text

Abdul Gafoor, J.


The appellant/writ petitioner company incorporated for development activities purchased 11 cents of land from one K. Sreenivasa Pai. Thereafter several apartments were constructed in the plot and later the apartments were sold to 7 persons. But the building tax in terms of the Kerala Building Tax Act of the building was assessed in favour of the appellant. The appellant/petitioner disputes it contending that the building being a multi apartments structure owned by different persons, Explanation 2 to Sec.2(e)should have been applied for the purpose of assessment of building tax. In other words, the building tax shall be assessed following the yardstick in the Act. In respect of each of the apartment owners separately rather than on the appellant who had undertaken the construction of the entire apartment complex.


2. It is an admitted fact that the appellant had transferred the ownership of each of the apartment to 7 persons separately, later than the completion of the work of the entire complex. With this factual position, we will read Explanation (2) to Sec.2(e) which defines building:


"Where a building consists of different apartment 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".


3. Here, the ownership of each of the flat came to the different individual occupier later than the completion of the construction and the cost of construction was not jointly met by all of them, but by the appellant-builder. Necessarily, the apartment complex will not come within Explanation 2 to contend that each of the apartment will be a building for the purpose of assessment of tax.


4. It was contended, relying on the decision of a learned single Judge of this court reported in Balu v. State of Kerala (1994 (2) KLT 42), that in a similar situation, this court had held that each of the apartment is a "building" to come under Explanation 2 to Sec.2(e) of the Act. But the fact situation here is different because in that case, a firm undertook construction works and "accordingly entered into agreement for construction of flats for them and according to the plan and lay-out and design prepared by it. The outlay on this construction was provided by these persons, and after completion of the construction the undivided interest in the land was transferred to owners of the flats by separate deeds of sale.". There each of the occupier was the owner of the flat as the outlay and desigh were prepared by the firm, what remained was only the transfer of the land in which the flats were constructed.

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That was the factual difference in that case. Such situation does not arise here. 5. Necessarily, that decision does not have any application to this case. Therefore, there arises no question of any interference with the impugned judgment. Writ appeal fails, dismissed.
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