J.B. Koshy, J.

All these Original Petitions are filed challenging the orders of assessment under the Kerala Building Tax Act, 1975 (hereinafter referred to as 'the Act'). The buildings in question, though integral ones, portions of which are alleged to belong to various persons separately and they claimed separate assessment in their names. Their claim is based upon the definition of 'building' in S.2(e) of the Act as well as Explanation 2 to-the above sub-section. It is also submitted that tax is payable by the owner and if a separate ownership in separate flat, apartment or separate portions is proved, there should be separate assessment based upon the definition of 'owner' as well as the liability to pay tax. These buildings are also commercial buildings and a contention was raised by the Revenue that, in any event, Explanation to S.2(e) of the Act is not applicable to commercial buildings. Considering the various contentions, the learned single judge referred these matters to the Division Bench following the reference order which we quote below:

"An important question relating to the interpretation of explanation 2 to S.2(e) of the Kerala Building Tax Act, 1975 arises for consideration in these cases. The buildings in question, though integral ones, are alleged to belong to various persons in portions and these persons claimed separate assessments under the Act over the portions alleged to belong to them. There are cases where a single building has been put up on land belonging in co-ownership to various persons and the portions are different floors of the building and are claimed as belonging to each under some arrangement between them; cases where the building is claimed as belonging even to persons who do not have any ownership in the land, but who claim to have contributed to the construction and thereby claim an identified portion of the building as their own; there is also a case where the building is alleged to have been constructed on land lying contiguous of various owners, with the respective portions separated by common walls, but a common hall is put in the upstairs. All these raise complicated questions of law, particularly the last one mentioned as to how the assessment of the entire building is to be completed.

2. Incidentally, in some of these cases, the question of capital value is also involved. I am only referring to it as a question arising in these cases! but the question which requires serious consideration is the question of joint ownership and the interpretation of explanation 2 to S.2(e) of the Act. I may also mention that in many of these cases the buildings concerned are shopping complexes and the question will arise whether portions thereof can be treated as apartments or flats to which alone reference is made in Explanation 2 mentioned earlier.

Having regard to the complexity of the questions involved, I refer these cases for decision by a Division Bench."

2. Before going through the merits of the matter, we may refer to provisions in S.2(e) of the Act. S.2(e) of the Act is as follows:

"2 (e) 'building' means a house, out-house, garage, or any other structure, or part thereof, whether or masonry, bricks, wood, metal or other material but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the

main structure."

Owner' is defined under S.2(i) as follows:

"'Owner' includes a person who for the time being is receiving, or is entitled to receive, the rent of any building, whether on his own account or on account of himself and others or as an agent, trustee, guardian or receiver for any other person or who should so receive the rent or be entitled to receive it if the building or part thereof were let to a tenant;"

S.2(1) was added to the definition clause with effect from 10-2-1992 defining 'residential building' which is as follows:

"(1) 'residential building' means a building or any other structur