M. Kamaludeen vs The District Collector on 12 June, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 197 of 2009(W)


1. M. KAMALUDEEN, S/O.MOHAMMED ABU BACKER,
                      ...  Petitioner

                        Vs



1. THE DISTRICT COLLECTOR
                       ...       Respondent

2. THE REVENUE DIVISIONAL OFFICER,

3. THE TAHSILDAR,NEYYATTINKARA TALUK

4. THE VILLAGE OFFICER

                For Petitioner  :SRI.G.P.SHINOD

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :12/06/2009

 O R D E R
                  P.R. RAMACHANDRA MENON J.
                    ~~~~~~~~~~~~~~~~~~~~~~~
                      W.P. (C) No. 197 of 2009
                    ~~~~~~~~~~~~~~~~~~~~~~~
               Dated, this the 12th day of June, 2009

                             JUDGMENT

The petitioner’s building bearing No. 37/248 of Neyyattinkara

Muncipality, which actually is having a total plinth area of 200 Sq.

Meters is consisting of ‘commercial portion’ (61 M2) and a ‘residential

portion’ (139 M2). Despite this, assessment was finalized by the 3rd

respondent treating the building as ‘other building’, fixing huge liability

upon the petitioner. Even though the said assessment order was

challenged by filing Ext.P3 appeal before the second respondent, there

was no response at all, which made the petitioner to file Ext.P4

proceedings before the first respondent, simultaneously producing

copies of the judgment rendered by this Court holding that, in a case

where the building consists of ‘residential portion’ as well as

‘commercial portion’ assessment shall be effected separately in respect

of the different portions constituting ‘commercial’ and ‘residential’.

Ext.P4 submitted by the petitioner was turned down by the first

respondent as per Ext.P5 stating that, the grievance of the petitioner

could not be looked into, as the petitioner was never a party to the

judgments, copies of which were produced before the said respondent.

2. The 3rd respondent has filed counter affidavit stating that, as

per the report of the Revenue Inspector and as reported by the Deputy

WP (C) No. 197 of 2009
: 2 :

Tahasilder, the building was actually a ‘commercial building’ and that

there was no residential portion at all. However, it is added in

paragraph 5 of the said counter affidavit that, the building even if it

contained a portion being used for residential purpose, it could only be

treated as ‘other building’, in view of the contents of the Government

letter No. 23474/H3/93 TD dated 3.1.96. It is also pointed out that, the

petitioner has not stated at the time of the assessment, that a portion of

the building was being used for residential purpose.

3. The contents of the counter affidavit are not reflected in Ext.P5

reply given by the 1st respondent, while dealing with Ext.P4 petition

preferred before him. Ext.P3 appeal filed by the petitioner before the

second respondent/appellate authority was left unattended to. The

only reasoning given in Ext.P5 is that, the grievance of the petitioner

could not be looked into, since the petitioner was not a party to the

judgment, which was cited by him to have separate assessment. The

reasoning given by the respondents in the counter affidavit as well as in

Ext.P5 does not attract any consideration at all, in view of the law

declared by this Court as per the decision in Sukumaran Vs. Tahsildar

(1999(2) KLT 373) and the subsequent decisions on the point holding

that, in the case of a building having ‘commercial’ as well as ‘residential’

portions, the same shall be assessed separately.

WP (C) No. 197 of 2009
: 3 :

4. In the above circumstances, the impugned orders including

Ext.P5 are set aside. The third respondent is directed to consider the

matter afresh and after satisfying the exact nature of building, by

conducting a spot inspection with prior notice to the petitioner, if it is

found that the building is being separately used for commercial and

residential purposes, the same shall be assessed separately, fixing the

liability as aforesaid. It is made clear that, till the matter is reconsidered

and finalized as above, no coercive steps shall taken against the

petitioner. The amount already stated as remitted by the petitioner shall

be given credit to and will be dealt with, subject to the outcome of

reassessment.

The Writ Petition is disposed of as above.

P. R. RAMACHANDRA MENON, JUDGE

kmd