Devan Ramachandran, J.

1. The Kerala Building Tax Act, 1975 (hereinafter referred to as ‘the Act’ for short) defines a ‘building’ in Section 2(e) thereof; and then qualifies it through two explanations, the second of which alone, is relevant to our consideration in this matter.

2. The admitted facts in these cases are that, the builders of the buildings in question had entered into bilateral agreements with the owners of the lands on which they are constructed; based on which, the development was done. It is also conceded that, subsequently, the builder or the land owner, as the case may be, obtained buyers for individual units in the building; entering into agreements with them, or making conveyances in their favour with respect to it, as also the undivided rights on the land, as applicable.

3. This led to a controversy at the stage of assessment of the buildings involved in W.A.No.1870/2018, under the ‘Act’ – with the Assessing Authority holding that they require to be assessed as single building; leading to the assessee approaching this Court through a Writ Petition, namely WP(C)No.7947/2016. This Writ Petition was allowed, directing the Assessing Authority to reconsider the matter, adverting to the contentions of the assessee. The Assessing Authority, thereupon, again issued an order against the assessee citing the reasons that: (a) since the building is a commercial one, the 2nd explanation to Section 2(e) of the ‘Act’ would not apply; and (b) until the units in the building are actually sold to others, the builder would be construed to be in ownership.

4. In appeal, the Appellate Authority concluded in favour of the builder qua the first issue above; but still sustained the assessment, approving the opinion of the Assessing Authority on the second. The builder challenged the orders of the Assessing Authority  and  the  Appellate  Authority  by  filing

5. While so, the 1st respondent in W.A.No.1870/2018 also suffered a similar assessment with respect to the building involved in the said matter; and then challenged the orders of the Authorities under the ‘Act’ through WP(C)No.7568/2017.

6. Both the Writ Petitions have been allowed by the learned Single Judge through two separate judgments. The one issued in WP(C)No.7531/2017 is a detailed one, answering all the issues involved in favour of the writ petitioner therein; and based on it, WP(C)No.7568/2017 has also been allowed.

7. The learned Single Judge took incisive note of the factual and legal factors involved in both these matters; but did not accede to the objection of the appellants that the Writ Petitions are not maintainable on account of there being an alternative statutory remedy, for the reason that the matters stood already admitted, in which interim orders had also been issued. It is also relevant that, while answering the contentions, the learned Judge did not disturb the findings of the statutory first appellate authority that even a commercial building would come within the ambit and sweep of the second explanation to Section 2(e). The appellants do not assail these findings.

8. As ineluctable from the narrative above, the only relevant and germane question in these cases is whether the buildings in question are liable to be assessed as a whole, or as individual units; and for this, both sides rely on Explanation 2 to Section 2(e) of the ‘Act’, reproduced under:

                  Explanation 2 – 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 a separate building.

9. We notice from the impugned judgments, that the learned Single Judge found the projected facts to be rather unique; and then harmonized the various provisions and rival interests.

10. Travelling along the admitted facts, the buildings involved have multiple units; and it is asserted by the builders that they had already been sold to others, before the assessment under the ‘Act’ had been made. But, the Authorities under the ‘Act’ – who are the appellants in both these matters – assert that, since there is no evidence of sharing of expenses for the construction of the building, and because the units were sold after construction, it can only be construed to be subsequent sale, thus the builders obtaining no locus to claim benefit under the afore extracted explanation.

11. It is here that the controversy really has its genesis.

12. We notice from the impugned judgment in WP(C)No.7531/2017, that the views and holdings of the learned Single Judge are in paragraph 11 of it, which, for ease of reference and reading, is extracted under:

                  11. Now I shall come to the statutory provisions. The provisions contained in Sections 7 and 9 of the Act indicate beyond doubt that taxable event is completion of the construction of the building and the liability to pay tax is on the owner of the building. Section 2(e) of the Act defines 'building'. Explanation 2 to Section 2(e) of the Act clarifies that 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 for the purpose of the Act. Explanation 2 referred to above reads thus:

                  “Explanation 2 - 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.”

                  If Explanation 2 to Section 2(e) is understood in the light of Sections 7 and 9 of the Act, it is clear that when a building consisting of different apartments or flats is constructed jointly by different persons, each contributing to the cost of construction of his/her respective units, each unit has to be assessed in the name of its owner. In other words, the object of Explanation 2 to Section 2(e) of the Act is to ensure that the building is assessed only in the name of the person to whom it belongs. It is on account of the said reason that this Court passed Exhibit P6 judgment directing the assessing authority to consider whether the building is liable to be treated as a composite one or different individual units for the purpose of assessment under the Act. If one would apply the same reasoning, there is no difficulty in holding that if the building is one constructed by a developer for another, the same has to be assessed in the name of the person for whom the same was constructed. The owner may get right in the property before or after the completion of construction. The same is not decisive at all in the matter of deciding the issue whether the independent units in the buildings are to be treated as separate buildings for the purpose of assessment under the Act. Similar view is seen taken by this Court in Balu v. State of Kerala [1994(2) KLT 42]. Paragraph 3 of the said judgment reads thus:

                  3. The sole question for decision is whether the assessment of the entire building consisting of twenty two flats as one unit is legal and valid. There is no dispute about the facts of the case. The building is an integral one consiting of twenty two flats. It is a multistoryed one. The land belongs to the various flat owners in co-ownership, after the transfer effected to them of the undivided interest in the land, the transfer being effected after the construction of the flats was complete. What Explanation 2 lays down is that if a building consists of different apartments or flats owned by different persons, and the cost of construction of the building is met by such persons jointly, each apartment or flat shall be deemed to be a separate building. The ingredients of the Explanation are (a) the existence of a building, (b) that building must consist of different apartments or flats, (c) the apartments or flats must be owned by different persons and (d) the cost of construction of the building should be met by such persons jointly. If these ingredients concur, each of the apartments or flats will be deemed to be a separate building, though the building is one structurally and there is an integral connection between the various parts of the building. The Explanation in effect splits on otherwise integral unit or building into multiple buildings, liable to be assessed separately. It would have been otherwise going by the main part of the definition alone. Evidently this has been done to encourage construction of apartments and flats and to alleviate the burden that will otherwise fall heavily by assessing the entire building as one unit. The fact that the undivided interest in the land is transferred only subsequent to the construction of the flats is in my opinion, irrelevant in deciding on the applicability of Explanation 2. The building in this case therefore satisfies the conditions of Explanation 2 to S.2(e). The assessing authority has not given any reasons in Ext.P7 to deny the benefit of separate assessment to the flat owners in this case, or any justification for assessing the entire building as one unit on the developer. Such assessments without keeping in mind the basic philosophy underlying the Explanation will only act as a damper to such construction activity in the State.” (underline supplied)

                  Section 7 of the Act provides for furnishing of the return by the owner of the building for the purpose of assessment. Section 8 of the Act provides that if a person has not furnished the return within the time stipulated, he may furnish the return at any time before the assessment is made. Section 9 of the Act provides for assessment in cases where return is filed and also in cases where return is not filed. In other words, as far as multi-storied buildings consisting of independent units are concerned, it appears to me that the scheme of the statute is that after completion of the construction, the owner has to obtain conveyance deed in respect of the unit from the developer and file the return. In case the return is not filed, the owner has time till the time of assessment for obtaining conveyance deed and for filing return. In other words, in cases where transfer of property is not effected before the assessment proceedings, as the obligation in terms of the statute to pay tax for the building is on the owner of the building and as the agreement for sale does not confer any title on the agreement holder, such units cannot be assessed in the name of the persons with whom the developer has entered into the agreement for sale, for, the same cannot be treated as units owned by such persons. It is, therefore, to be clarified that conveyance deeds have to be obtained at any rate by the owners concerned before the assessment of the building. This is the only plausible view which can be taken in a matter like this since it is not certain that the developer would certainly convey ownership of the unit to persons with whom they have entered into agreements for sale after the assessment. If for some reason, the agreement holder does not make the payment in full, the developer may not convey ownership of the unit to him and the assessing authority is not expected to wait until appropriate conveyance deed is executed by the developer in respect of all the units constructed by them.

13. Contesting the above findings, the argument of Sri.Sudhish Kumar – learned Special Government Pleader, is that, when there is absolutely no evidence on record to establish that the cost of construction of the buildings had been shared by the alleged individual owners, the benefit of Explanation 2 of Section 2(e) of the ‘Act’ cannot be offered to any of them, or even to the builders; and that the burden of paying tax, reckoning it as a single unit, falls on the latter. He insisted that there is a yard of difference between sharing the cost when the construction was carried on, and a subsequent purchase; alleging that the learned Single Judge did not consider this at all in the impugned judgments.

14. In contra-argument, Sri.M.P.Shameem Ahamed – learned counsel for the respondents, submitted that the materials on record limpidly prove that the cost of construction had been shared by all the individual owners – who had entered into agreements with the builders, while it was being carried out, or in whose names the Units are presently registered; and hence that the learned Single Judge was without error in having found the benefit of explanation 2 of Section 2(e) of the ‘Act’ in their favour. He showed us that the learned Judge has, in fact, evaluated the factual matrix under two broad heads, namely; (a) with respect to those units, qua which, there were agreements of sale even when the construction was going on; and (b) those units, though not covered by such agreements, were eventually registered in the name of the owners, before the assessment under the ‘Act’ had been initiated or completed. He pointed out that the learned Single Judge has found, as evident from the afore extracted portion of the impugned judgment, that the assessments will have to be done of the independent Units separately, in both the afore scenarios, in the names of the agreement holders, or owners; and not in the name of the builders because, they would only concede that the cost was shared, by the time the construction had been fully completed. He prayed that, therefore, the impugned judgments be left uninterdicted.

15. The rival submissions thus recorded, when one reads the impugned judgment, it is rendered perspicuous that the learned Single Judge did not answer if a commercial building is liable to be assessed as per Explanation 2 to Section 2(e) of the ‘Act’; since the Appellate Authority had already found so in its orders. The learned Court then has found that, those units which were covered by agreements of sale at the time when the construction was going on, will certainly have to be given the benefit of the above mentioned Explanation; and then proceeded to declare that, as regards those units which were not covered by such agreement, but the ownership of which were registered in the name of the individual owners antecedent to the assessment under the ‘Act’, will also be entitled to such benefit. He then left it to the competent Authorities to make an assessment of the factual matrix and documents, based on the above declarations; to take final decisions.

16. We must say that we cannot find fault with the course adopted by the learned Single Judge, or any error in his holdings, for the singular reason that the benefit of Explanation 2 to Section 2(e) of the ‘Act’ revolves on the aspect of sharing of, and contribution to, the cost of construction. This phrase has not been defined anywhere; and will have to, therefore, align with the normal semantic meaning assigned to it.

17. Normally, when a construction goes on and agreements are entered into by individual buyers, the cost of construction would be shared by them, paying the sale price in tranches. To the extent to which the learned Single Judge finds in favour of the builders in such circumstances, one cannot cavil; nor are we expected to intervene because it travels with the settled law and forensic principles perfectly.

18. The only difference of opinion that can be impelled is with respect to units, over which there were no agreements at the stage of construction, but individual owners having obtained registration of separate Units after construction, but prior to the assessment under the ‘Act’. The learned Government Pleader also edifices his arguments on this factual difference, asserting that it operates as sale subsequent to completion of construction.

19. As already noticed, the learned Single Judge has held that, in cases where individual Units of the buildings are agreed to be sold, or are sold, to persons before they are assessed under the ‘Act’, such persons would be liable to be assessed, qua their holding. This can hardly concede to a difference in opinion because, the charging provision of the ‘Act’, namely Section 5, unambiguously declares that the taxable event is the completion of a building, done on or after the appointed day. In such an event, the scheme of Sections 7, 8 and 9 operates, whereby, the owner of the building becomes enjoined to furnish a return in the prescribed form to the Assessing Authority; leading to such Authority to make assessment. The burden of tax is thus apodictically on the owner of the building, or Units thereof; and this is cemented by the manner of explanation to Section 2(e) of the ‘Act’, extracted in para 7 supra.

20. The conclusions of the learned Single Judge, therefore, obtains our full approval; and we offer imprimatur to them.

21. That said, there are factual factors in these cases – especially with respect to the existence of agreements of sale; or conveyances, executed before the date of assessment, as have been claimed – which require proper inquiry. This is why the learned Single Judge has correctly left it to the Assessing Authority to verify if, as claimed by the builders, there are agreements for sale – stated to have been entered into before 27.05.2014 – and/or deeds of conveyance, before the date of assessment – namely 02.02.2016; and if so, to assess the Units covered by the same in the name of the beneficiaries therein, with all others remaining, in the name of the builders.

22. We, therefore, obtain no reason either to differ from the views and holdings of the learned Single Judge, or to intervene in the impugned judgments.

These appeals are, consequently, dismissed.