High Court Kerala High Court

P.M.Appunni Panicker vs Kalapadan Rahamath on 6 March, 2009

Kerala High Court
P.M.Appunni Panicker vs Kalapadan Rahamath on 6 March, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 36140 of 2002(B)


1. P.M.APPUNNI PANICKER,
                      ...  Petitioner

                        Vs



1. KALAPADAN RAHAMATH, D/O. HAMZA,
                       ...       Respondent

2. THE TAHSILDAR, PERINTHALMANNA.

3. THE DISTRICT COLLECTOR,

                For Petitioner  :SRI.K.M.SATHYANATHA MENON

                For Respondent  :GOVERNMENT PLEADER ( NO MEMO)

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :06/03/2009

 O R D E R
                           C.K.ABDUL REHIM,J.
                 --------------------------------------------
                         OP.NO. 36140 of 2002
                ---------------------------------------------
               Dated this the 6th day of March, 2009.

                                JUDGMENT

The petitioner is challenging Ext.P6 order of the District Collector,

rejecting his appeal petition, as time barred. There existed a dispute

between the petitioner and the first respondent with respect to

payment of basic tax of 65 cents of property comprised in survey

No.42/5 of Valamboor Village. The second respondent Tahsildar after

adjudicating rival contentions, issued Ext.P4 order, holding that basic

tax could not be received from the first respondent or from the

petitioner unless there is a decision of a competent Civil Court with

respect to ownership of the property.

2. Aggrieved by Ext.P4, petitioner preferred appeal before the

Revenue Divisional Officer. But as per Ext.P5, the petitioner was

informed that the appropriate appellate authority is the District

Collector. Thereafter he filed appeal before the District Collector. But

through Ext.P6 order the appeal was rejected holding that it is not

filed within the time limit stipulated in Rule 12(ii) of the Kerala Land

Tax Rules. It is observed that the appellate authority is not

empowered to condone delay beyond the period of 90 days as per the

proviso to the said Rule. Since the impugned order of the Tahsildar

OP.36140/2002 2

was served on the petitioner on 23.10.1999, the District Collector

rejected the appeal, which was filed only on 1.8.2000.

3. The contention of the petitioner is that he had filed appeal

before the Revenue Divisional Officer, within the time stipulated under

Rule 12(ii) and it is only after a long lapse of time that the Revenue

Divisional Officer issued Ext.P5 notice. According to the petitioner, the

appeal need be considered as one filed before a wrong authority and

returned for presentation before the proper authority, who is the

District Collector.

4. As per Rule 12(ii) the appellate authority is empowered to

admit an appeal presented after the expiry of 30 days, if it is satisfied

that there was sufficient cause for not presenting the appeal within the

said period. But the proviso to Rule 12(ii) insists that no appeal shall

be entertained after expiry of the period of 90 days of service of the

impugned order. In the instant case, the petitioner filed an appeal

before the Revenue Divisional Officer against Ext.P4 order of the

Tahsildar. Since there is no contrary evidence it can be presumed that

the appeal was filed within 30 days of service of the order impugned.

In Ext.P6 it is noted that the date of service of Ext.P4 order was

23.10.1999. But Ext.P5 notice rejecting the appeal issued by the

Revenue Divisional Officer is dated 20.6.2000. Therefore, it is clear

OP.36140/2002 3

that the matter was kept pending for a considerably long period in the

office of the Revenue Divisional Officer. Eventhough the filing of the

appeal before the District Collector was not a re-presentation of the

appeal in its strict sense, considering the facts stated above, I am

inclined to direct to treat the appeal filed before the District Collector

as a re-presentation of the appeal returned by the Revenue Divisional

Officer. But still, there arose a question as to whether the petitioner

had filed the appeal before the District Collector within 30 days of

Ext.P5 notice by which the Revenue Divisional Officer had intimated

that the appeal is not maintainable. Ext.P5 is dated 20.6.2000. From

Ext.P6 it is evident that the appeal petition was presented before the

District Collector only on 1.8.2000, which admittedly is beyond the

period of 30 days. But it is pointed out that since the delay is below 90

days, the District Collector can condone the same. It is for the

petitioner to explain the cause of such delay and to seek condonation

by filing a proper application.

5. In view of the above, I am inclined to quash Exts.P6 and I do

so. If the petitioner files a proper application before the District

Collector within one month from today, seeking condonation of the

delay occurred beyond the period of 30 days in presenting the appeal,

between 20.6.2000 (the date of Ext.P5 order) and 1.8.2000, the

OP.36140/2002 4

District Collector will consider the said application on its merits and will

take a decision regarding condonation of delay. Needless to say that

if the District Collector is inclined to condone the delay, then the appeal

need be entertained and disposed on merits, after affording an

opportunity of hearing to the first respondent. The District Collector

will dispose of the petition and the appeal, if received, at the earliest,

at any rate, within two months from the date of receipt of such

application. It goes without saying that if there is failure to file any

such application, Ext.P6 order will survive.

The writ petition is disposed of with the above directions.





                                               C.K.ABDUL REHIM, JUDGE

Pmn/

OP.36140/2002    5