Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 PETITIONERS: 1 M/S. PTC BUILDERS, AREGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT P.T.C TOWERS, S.S. KOVIL ROAD THAMPANOOR, THIRUVANANTHAPURAM- 695001, REPRESENTED BY ITS MANAGING PARTNER, MR. BIJU JACOB, AGED 60 YEARS, S/O. LATE P. T. CHACKO, RESIDING AT PALLASERIYIL (H), MANNANTHALA P. O., THIRUVANANTHAPURAM - 695015.
2 BIJU JACOB, AGED 60 YEARS, S/O. LATE P. T. CHACKO, MANAGING PARTNER, M/S. PTC BUILDERS, RESIDING AT PALLASERIYIL HOUSE, MANNANTHALA P. O., THIRUVANANTHAPURAM, PIN - 695015. BY ADVS. SRI. SIDHARTH A. MENON SRI. MUHAMMED ALJUQ A. SRI. V. AJAKUMAR SMT. HARSHA RESPONDENTS: 1 STATE OF KERALA , REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA DISTRICT, COLLECTORATE , PATHANAMTHITTA, PIN - 689645. 2 THE THAHSILDAR (ASSESSING AUTHORITY), OFFICE OF THAHSILDAR, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN - 689641. 3 MR. JACOB MATHEW, S/O. LATE JACOB, RESIDING AT MULAKKILETHU HOUSE, NEAR CATHOLIC COLLEGE, MAKKAMKUNNU, PATHANAMTHITTA P. O., KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT, PIN - 689645. BY ADV SRI. V. PHILIP MATHEWS - FOR R3 SMT. JASMINE M. M. - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DINESH KUMAR SINGH, J.
-------------------------- W.P.(C) No. 17561 of 2023 ------------------------- Dated this the 29th day of February, 2024
JUDGMENT
1. The petitioners have filed this writ petition seeking the following reliefs;
(i) To pass a writ in the nature of mandamus
or any other writ or order or direction directing the 2nd respondent to pass orders in Exhibit P15 rectification petition filed by the petitioners under Section 15 of the Kerala Buildings Tax Act 1975 for rectification of the Exhibit P14 assessment order passed by the 2 nd respondent as per law after affording an opportunity of hearing to the petitioners and the 3rd respondent.
(ii) To pass a writ of mandamus or any other
writ order or direction directing the 2 nd respondent to make fresh assessment of Building Tax in respect of 65 apartments in the Apartment Complex PTC WESTERN GHATS as per law by issuing notice to the respective owners of those apartments.
(iii) To allow all costs.
2. The petitioners are the builders of PTC Western Ghats situated
within the municipal limits of Pathanamthitta Municipality. It appears that the petitioners have constructed the said residential complex consisting of 65 apartments under the joint venture agreement dated 10.09.2013 in Exhibit P-2, wherein the petitioners would get the ownership of 52 apartments and the 3 rd respondent will get the remaining 13 apartments. Despite the said agreement, it appears that the Assessing Officer has assessed the building tax under the provisions of the Kerala Building Tax Act, 1975 and the Rules made thereunder as the entire 65 apartments belongs to the petitioner.
3. The learned Counsel for the petitioners submits that the
petitioners were not issued any notice and, without having been issued the notice, the impugned order came to be passed. He also submits that the petitioners have executed the sale deed in respect of 29 apartments in favour of the different flat owners. Learned counsel for the petitioners further submits that the agreements were executed before Completion Certificate and Occupancy Certificate were issued and, it is only the agreement of sale which has been executed after the occupancy certificate was issued. In effect, the ownership of 29 flats were already transferred and only the execution of sale deed which has already been done. Learned Counsel for the petitioner submits that these 29 flat owners are liable to pay the building tax in respect of their flats and, nor the petitioners neither the 3rd respondent. He also submits that the 3 rd respondent is liable to pay the tax only in respect of 13 apartments of his share and the petitioners are liable to pay tax in respect of only 23 flats as they have already transferred 29 flats out of 52 in favour of the different flat owners.
4. This Court find that there may be some substance in the
submission of the learned Counsel for the petitioners for which they have filed the rectification application in Exhibit P-15. Therefore, the 2nd respondent Assessing Officer is directed to consider Exhibit P-15 rectification application in accordance with the law and should consider all the relevant materials/evidences produced before him and pass a decent order expeditiously, preferably within a period of one month. With the aforesaid directions, the present writ petition stands finally disposed of. Sd/- DINESH KUMAR SINGH JUDGE Svn APPENDIX OF WP(C) 17561/2023 PETITIONERS’ EXHIBITS Exhibit P1 TRUE COPY OF BUILDING PERMIT NO.BA NO.199/13-4 DATED 29.08.2013 Exhibit P2 TRUE COPY OF LAND OWNERS AGREEMENT DATED 10.09.2013 Exhibit P3 TRUE COPY OF POWER OF ATTORNEY DATED 10.09.2013
Exhibit P4 TRUE COPY OF DETAILS OF APARTMENTS OWNED BY LAND OWNER JACOB MATHEW IN THE APARTMENT COMPLEX Exhibit P5 TRUE COPY OF DETAILS OF 29 APARTMENTS ALREADY SOLD OUT WITH ITS DETAIL OF OWNER Exhibit P6 TRUE COPY OF DETAILS OF APARTMENTS THAT REMAINS TO BE SOLD IN THE PETITIONER FIRM Exhibit P7 TRUE COPY OF INTERIM AWARD DATED 25.11.2019 ALONG WITH COMPROMISE PETITION DATED 27.10.2019 Exhibit P8 TRUE COPY OF THE COMPLETION CERTIFICATE ALONG WITH THE APPLICATION TO ISSUE OCCUPANCY CERTIFICATE FILED BY THE 3RD RESPONDENT Exhibit P9 TRUE COPY OF OCCUPANCY CERTIFICATE ISSUED BY PATHANAMTHITTA MUNCIPALITY Exhibit P10 TRUE COPY OF FINAL AWARD IN DATED 28.07.2021 AR 67/2018 Exhibit P11 TRUE COPY OF THE NOTICE DATED 6.01.2021A COPY FORWARDED B THE LAND OWNER TO THE PETITIONER FIRM Exhibit P12 TRUE COPY OF THE LETTER DATED 4.03.2021 Exhibit P13 TRUE COPY OF THE LETTER DATED 15.03.2021 ISSUED BY 2ND RESPONDENT Exhibit P14 TRUE COPY OF THE ASSESSMENT PROCEEDINGS DATED 28.04.2021 ISSUED BY MR. JACOB MATHEW AND COPY FORWARDED TO TH PETITIONER FIRM ON 8.06.2021 ALONG WITH HIS E MAIL DATED 8.06.2021 Exhibit P15 TRUE COPY OF THE PETITION DATED 18.06.2021 FILED BY THE 2ND RESPONDENT Translation of Exhibit P13 Translation of Exhibit P14 3RD RESPONDENT’S EXHIBITS Exhibit R3(a) COPY OF THE LAND OWNERS AGREEMENT DATED REPRESENTED BY ITS MANAGING PARTNER BIJU JACOB, SECOND PETITIONER TO THIS WRIT PETITION, AND THIRD RESPONDENT MR JACOB MATHEW Exhibit R3(b) COPY OF THE GENERAL POWER OF ATTORNEY DATED JACOB MATHEW AUTHORIZING M/S PTC BUILDERS, REPRESENTED BY ITS MANAGING PARTNER BIJU JACOB, SECOND PETITIONER TO THIS WRIT PETITION TO CONDUCT THE ACTS SPECIFIED Exhibit R3(c) COPY OF THE BUILDING PERMIT ISSUED BY THE SECRETARY, PATHANAMTHITTA MUNICIPALITY DATED AUTHORIZING M/S PTC BUILDERS, REPRESENTED BY ITS MANAGING PARTNER BIJU JACOB, SECOND PETITIONER Exhibit R3(d) COPY OF THE REVOCATION OF POWER OF ATTORNEY DATED 17/08/2013 EXECUTED BY THIRD RESPONDENT MR JACOB MATHEW