IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8367 of 2006(U)
1. T.K.MOHANAN, KURUM KUNALU,
... Petitioner
Vs
1. THE SUB COLLECTOR, KANHANGAD,
... Respondent
2. THE TAHSILDAR, HOSDURG.
For Petitioner :SRI.A.SUDHI VASUDEVAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
Dated :29/08/2008
O R D E R
P.R. RAMAN, J.
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W.P.(C) NO. 8367 OF 2006
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DATED THIS, THE 28TH DAY OF AUGUST, 2008.
J U D G M E N T
Ext. P5 is under challenge, which is an order passed by the Appellate Authority
under the Kerala Building Tax Act.
2. Petitioner was assessed to building tax, against which he filed an appeal. By
Ext.P5 order, the appeal was rejected on the ground that the petitioner has not produced
the original assessment order and did not adduce any evidence to show remittance of
tax. It was also held that the appeal was belated. Petitioner contends that no
assessment order was served on him. However, he remitted the tax, but did not produce
the receipt which is only a defect and if at all, it would have been cured. According to
him, he produced the receipt along with the appeal and therefore, there is no delay nor
the defect pointed out, namely, the non-production of receipt and both are factually
incorrect. But according to him, Ext.P5 order was passed without affording an
opportunity to him. He also raised a contention that the plinth area was not correctly
measured before assessment.
3. The learned Government Pleader, based on instruction, submitted that the
assessment order was served on the petitioner through his son who accepted the same as
otherwise he could not have remitted the tax. But the learned counsel appearing on
WP(C) 8367/2006 2
behalf of the petitioner submitted that only a demand was served and not an
order of assessment.
4. Heard both sides. In the facts and circumstances, it is not
necessary to go into the merits of the case since the appeal has to be
disposed of on merits. Even though it is prayed by the learned counsel for
the petitioner that since there is a dispute regarding the plinth area, the
appellate authority may be directed to re-measure the property. I am not
inclined to accept this contention since even the very appeal is belated or
not is to be considered by the appellate authority and only if it is not belated
the question of considering such contentions would arise.
5. In the facts and circumstances, I find that Ext.P5 order was
passed without affording an opportunity to the petitioner of being heard in
the matter. Petitioner ought to have been given an opportunity to show
cause as to why the appeal should not be dismissed on the grounds as
mentioned in Ext.P5 in which event he would have get an opportunity to
appraise before the appellate authority that those defects are non-existing
and convince that authority of the same, in which event it could have
considered the matter on merits. Therefore, Ext.P5 is quashed. The
appellate authority may issue a fresh notice and the petitioner may be heard
in the matter. It is up to the petitioner to produce materials to show that
WP(C) 8367/2006 3
none of the points mentioned in Ext.P5 was existing as on the date of
passing of that order and the appeal was within time. Once the appellate
authority is satisfied with this contention and if it is found that the appeal is
not belated and compliance is also made, then the appellate authority shall
consider the matter on merits. If it is found that the appeal is belated
beyond the prescribed period up to which he could condone the delay,
necessarily he could dismiss the appeal; but he could enter a finding
depending on facts.
The writ petition is allowed as above.
P.R. RAMAN,
(JUDGE)
knc/-