WP(C) Nos.4981, 5083, 9303, 9397, 9977, 10095 & 10120 of 2007

Common questions arise for decision in these Writ Petitions. Therefore, they are heard and disposed of by this common judgment. The main point that arises for decision in these cases is whether the petitioners, who are builders of residential apartments, are entitled to get the benefit of the second explanation to Section 2(e) of the Kerala Building Tax Act. The said explanation reads as follows:

"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."

2. Essentially, whether the petitioners are entitled to get the benefit of the above quoted explanation is a question of fact, which cannot be decided in a Writ Petition. It has to be decided by the fact finding authorities. But, alleging that the decision making process is vitiated, the petitioners have directly approached this Court. Since I find considerable force in their submission, these Writ Petitions are entertained.

3. The petitioners in these Writ Petitions are builders, who constructed residential flats in the properties owned by them. They submit, all those flats were allotted to individual flat owners under separate agreements before the commencement of the construction or immediately thereafter. The individual allottees have advanced the necessary funds for completing the construction, as agreed, from time to time, in instalments. By the time, the construction was over and they paid the entire amount. Thereafter, the undivided rights in the land were also assigned to them by registered sale deeds. In some cases, the sale deeds were executed even before the completion of the construction. So, the petitioners submit, while assessing the building tax for the residential complexes constructed by them, they are entitled to get the protection of Explanation 2 to Section 2(e) of the Kerala Building Tax Act.

4. All the petitioners point out that they were not given an effective opportunity to present their case, claiming the benefit of the above quoted explanation. Without giving them a proper opportunity and without referring to the materials produced by them, they have been held to be not entitled to get the benefit of the said explanation and the buildings have been assessed to building tax, treating the same as a single unit. In some cases, the assessment orders have been issued in printed formats, without referring to any of the facts of the case. So, the petitioners pray for quashing the impugned assessment orders and consequential demands.

5. I heard the learned Government Pleader appearing for the respondents. In most of the cases, I find that without giving a proper opportunity of being heard to the petitioners and without dealing with the contentions raised by them, the assessments have been made. The agreements entered into between the allottees of the flats and the petitioners were ignored, for the reason that they were not registered agreements. Apparently, it was done, on the strength of two circulars issued by the Government to ignore unregistered agreements. Those circulars are produced as Exts.P8 and P9 in Writ Petition (C) No.10095 of 2007.

6. The assessment of building tax is a quasi-judicial function. While making the assessment, the Assessing Officer will be guided, only by the provisions of the Building Tax Act and the Rules. He shall not be guided by any instruction issued by the superior officers or by the Government. The circular issued by the Government that unregistered agreements entered into between the builders and the allottees of the flats should be ignored, is illegal and unsustainable. The assessing authority shall not, in any way, be influenced by the said circular.

7. Under the provisions of the Kerala Building Tax Act, the Government have power to issue orders for removal of difficulties. B