IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 WA.No. 592 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.5785/2008 Dated 28/02/2008 .................... APPELLANT: PETITIONER --------------------- T.S. DHARMARAJAN COMMERCIAL TAXES OFFICER, 11 CIRCLE PALAKKAD (UNDER ORDERS OF REVERSION AS COMMERCIAL TAXES INSPECTOR) BY ADV. SRI.K.G.ANIL BABU RESPONDENTS: RESPONDENTS ------------------------ 1. THE SECRETARY, TAXES DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, COMMERCIAL TAXES THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.K.SANDESH RAJA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.A. NO. 592 OF 2008 ----------------------------------------- Dated 11th March, 2008. JUDGMENT Balakrishnan Nair, J. Feeling aggrieved by Ext.P3 order of punishment imposed by the Commissioner of Commercial Taxes, the appellant filed Ext.P4 appeal before the Government. Thereafter, the writ petition was filed, seeking the following reliefs: “(i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the papers leading to Ext.P3 and quash the same. ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to consider and dispose of Exhibit P4 appeal after hearing as expeditiously as possible, at any rate within a time limit to be fixed by this Honourable Court. iii) Stay the operation and implementation of all further proceedings pursuant to Exhibit P3, pending disposal of Exhibit P4 appeal by the 1st respondent.” The learned single Judge disposed of the writ petition, directing the Government to consider and pass orders on Ext.P4 within a time limit. This WA 592/08 2 Writ Appeal is filed, seeking stay of Ext.P3 during the pendency of Ext.P4 appeal. According to the appellant, the learned Judge should have issued such a direction also. 2. The appellant has not moved the appellate authority for stay of the original order. The appellate authority, which is competent to set aside the order, should be conceded power to keep the order in abeyance, pending disposal of the appeal. If the appellant has moved the appellate authority and it did not consider the stay application, then this Court would have asked the appellate authority to dispose of the stay petition. If the appellate authority considered and rejected the stay application on wrong grounds, then also this Court could judicially review that order. But, the present prayer under Article 226 of the Constitution of India to stay the impugned order during the pendency of the appeal before the Government is plainly untenable. So, the appeal lacks merit. Accordingly, it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/