Meena Kumari vs The Revenue Divisional Officer on 29 May, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 14857 of 2009(B)


1. MEENA KUMARI, AGED 59 YEARS,
                      ...  Petitioner
2. KRISHNAN NAIR, S/O.LATE K.SETHUMADHAVAN

                        Vs



1. THE REVENUE DIVISIONAL OFFICER,
                       ...       Respondent

                For Petitioner  :SRI.SUNIL NAIR PALAKKAT

                For Respondent  : No Appearance

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

 Dated :29/05/2009

 O R D E R
                 P.R. RAMACHANDRA MENON J.
                   ~~~~~~~~~~~~~~~~~~~~~~~
                     W.P. (C) No.14857 of 2009
                   ~~~~~~~~~~~~~~~~~~~~~~~
                Dated, this the 29th day of May, 2009

                             JUDGMENT

Ext.P1 order passed by the assessing authority under the Kerala

Building Tax Act was subjected to challenge by filing Ext.P3 appeal

before the respondent, which however was dismissed as belated vide

Ext.P5 order, which is impugned in the present Writ Petition filed by the

petitioner.

2. The reason given by the respondent for not entertaining the

statutory appeal, as discernible from Ext.P5 is that, the impugned order

was passed serving the demand notice on the petitioner on 29.10.2008;

whereas the appeal was “filed in the office” only on 03.12.2008, i.e.

after one month and 6 days from the date of service of demand notice,

which hence was not liable to be entertained, since it did not

accompany any petition for condoning the delay.

3. Obviously, the reasoning given by the respondent in Ext.P5

cannot be held as correct, particularly in view of the fact that Ext.P3

memorandum of appeal was actually ‘sent’ by the petitioner by

registered post to the respondent on 27.11.2008, as evident from

Ext.P4 receipt regarding registration, issued by the postal authorities.

This shows that the appeal was prepared and sent to the appellate

authority properly within the prescribed time and it was never taken to

WP (C) No. 14857 of 2009
: 2 :

be filed in the office of the respondent on 3.12.2008 as mentioned in

Ext.P5. That apart, the appeal, if at all were defective in any manner

(for not supported by a petition for condoning the delay) it was a defect

which ought to have been permitted to be cured by giving opportunity to

the petitioner. Obviously, no notice whatsoever was issued from the

office of the respondent, informing the petitioner of any date fixed for

hearing the matter, even on the question of alleged delay and the

impugned order was passed without hearing the petitioner, which hence

is in contravention of all the known principles of natural justice.

4. In the above facts and circumstances, Ext.P5 order cannot

have existence any more and hence it is set aside. The respondent is

hereby directed to consider Ext.P3 appeal afresh, after giving an

opportunity of hearing to the petitioner and in accordance with law. It

will be open for the petitioner to cure the defect, if any. The appropriate

orders as above shall be passed by the respondent, as expeditiously as

possible, at any rate, within a period of three months from the date of

receipt of copy of this judgment.

Disposed of accordingly.

P. R. RAMACHANDRA MENON, JUDGE
kmd