Siyad P.M. and Shafiq P.M. vs District Collector, The Revenue Divisional Officer and The Tahsildar, Kanayannur Taluk, Ernakulam

V. Chitambaresh, J.—The petitioners who are brothers challenge the concurrent orders of assessment made under the Kerala Building Tax Act. It is asserted that the first petitioner is the owner of the ground floor and the second petitioner is the owner of the first floor of the building. The total plinth area of the two floors has been reckoned for the purpose of assessment of tax under the Kerala Building Tax Act.

The following factors are significant;

i) Ext. P1 sale deed in respect of the land has been taken in the joint names of both the petitioners.

ii) Ext. P2 agreement has been entered into between the petitioners undertaking to meet the expenses for construction jointly.

iii) Ext. P8 extract of loan register reflect that the loan was sanctioned by the bank jointly in the name of the petitioners.

iv) Both the floors have been separately assessed for the purpose of property tax and separate door numbers have been assigned.

v) Both the floors have separate exit and entry points (doors) and capable of being used independently.

There is no warrant for the conclusion that the total area of both the floors has to be reckoned for the purpose of tax. Different floors can be owned by different persons as per the scheme of the Kerala Building Tax Act. The ''owner'' has been defined u/s 2(i) of the Act as a person entitled to receive rent and the liability to pay tax u/s 5(6) of the Act is on its owner only. Each floor has to be deemed to be a separate building when the cost of construction has been met jointly as evident by Explanation 2 to Section 2 of the Kerala Building Tax Act, 1975.

Exts. P3, P6 and P7 passed by the respondents are vitiated by an error of jurisdiction and are accordingly quashed. The liability to pay luxury tax as demanded under Ext. P5 order would arise only if both the areas of the ground floor and the first floor are totalled. I therefore quash Ext. P5 order as well as regards the imposition of luxury tax. The third respondent is directed to reassess the tax under the Kerala Building tax Act in respect of the separate floors as against the petitioners separately. The needful shall be done within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition with the judgment before the third respondent for compliance.

The Writ Petition (Civil) is allowed. No costs.