A.K. JAYASANKARAN NAMBIAR, J.

1. The petitioners, who are husband and wife, purchased 13.510 cents of land in S. No. 390/5A/2 in Marady Village, Muvattupuzha Taluk by separate sale deeds. On the said piece of land, they constructed a building with a ground floor and a first floor. It is their case that the ground floor belongs to the 1st petitioner husband, and the first floor belongs to the 2nd petitioner wife. By Ext.P5 order dated 25.07.2012, the 3rd respondent assessing authority under the Kerala Building Tax Act, assessed both the floors as a single unit for the purposes of levy of building tax. The petitioners therefore preferred an appeal before the appellate authority. The said appeal was dismissed by Ext.P7 order dated 14.01.2013, where the appellate authority relied on the fact that an internal staircase that existed in building was the sole means by which access could be obtained to the first floor of the building, as also the ground floor of the building and hence, he was of the view that the building was essentially a single unit which would be subjected to levy of building tax as such. Aggrieved by Ext.P7 order of the 2nd respondent, the petitioner preferred a revision application before the 1st respondent. The 1st respondent by Ext.P9 order dismissed the revision petition on substantially the same ground as the 1st appellate authority. In the writ petition, the case of the petitioner is essentially that, the mere existence of a staircase that connected the two floors of the building, could not have been a ground to treat the separate portions of the building as one for the purposes of levy of building tax. The petitioner points to the separate sale deeds by which the land in question was purchased, the separate building permits that were issued in the name of the husband and wife, the separate electricity and water connection and also the separate contribution that was made by the petitioners at the time of construction of the building, to contend that the building should have been assessed separately in the names of the husband and wife. A counter affidavit has been filed on behalf of the 3rd respondent wherein Ext.P9 order of the 1st respondent is sought to be justified on the reasons stated therein. It is the case of the 3rd respondent that the agreement entered into between the husband and wife were essentially for avoiding/minimizing their liability to tax and hence could not be relied upon.

2. I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents.

3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that this is a case where the scheme of the Building Tax Act and, in particular, the provisions of Explanation 2 to Section 2(e) of the said Act have not been appreciated by the authorities, who were called upon to decide on the manner of assessment of the building to building tax and luxury tax. A perusal of the provisions of Explanation 2 to Section 2(e) would indicate that as per the Scheme of the Act, the levy of tax is on a building that is constructed after the cut-off date specified in the Act. While under normal circumstances, the building as a whole would have to be treated as a single unit for the purposes of tax, an exception is carved out in cases covered by Explanation 2 to Section 2(e) of the Act. As per the said explanation, where the 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 apartments or flats shall be deemed to be a separate building. It is apparent from a reading of the Explanation, therefore, that for the building to be assessed as separate units, it must be shown that:-

1. The building consists of different apartments or flats.

2. The said apartments or flats are owned by different persons.

3. That the cost of constr