IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 197 of 2009(W) ------------------------ PETITIONER: --------------- M. KAMALUDEEN, S/O.MOHAMMED ABU BACKER, AGED 71 YEARS, RESIDING AT SHEEJA COTTAGE NMC XII/387, ALUMMOODU,NEYYATTINKARA THIRUVANANTHAPURAM DISTRICT. BY ADV. MR. G.P.SHINOD MR. RAM MOHAN.G. MR. MANU.V RESPONDENTS: --------------- 1. THE DISTRICT COLLECTOR THIRUVANANTHAPURAM , HAVING OFFICE AT COLLECTORATE KUDAPPANAKKUNNU, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM REVENUE DIVISION THIRUVANANTHAPURAM. 3. THE TAHSILDAR,NEYYATTINKARA TALUK TALUK OFFICE, NEYYATTINKARA THIRUVANANTHAPURAM DISTRICT. 4. THE VILLAGE OFFICER NEYYATTINKARA VILLAGE, VILLAGE OFFICE, NEYYATTINKARA THIRUVANANTHAPURAM DISTRICT. BY GOVERNMENT PLEADER MR. BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 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