IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 16260 of 2006(I) -------------------------- PETITIONER: ------------------- M.PRABHAKARA MENON, PRATHEEKSHA, KALVAKULAM ROAD, KOPPAM, PALAKKAD. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR, PALAKKAD. 2. THE REVENUE DIVISIONAL OFFICER, PALAKKAD. 3. THE TAHSILDAR, PALAKKAD. BY GOVERNMENT PLEADER SRI MATHEW VADAKKEL FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.16260/2006 APPENDIX PETITIONER'S EXTS; EXT.P1 TRUE COPY OF THE ASSESSMENT ORDER DTD. 22/3/05 PASSED BY THE 3RD RESPONDENT. EXT.P2 TRUE COPY OF THE DEMAND NOTICE DTD. 22/3/05 ISSUED BY THE 3RD RESPONDENT. EXT.P3 TRUE COPY OF THE APPEAL DTD. 30/9/2005 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE DELAY CONDONATION PETITION DTD. 30/9/05 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER DTD. 18/11/05 PASSED BY THE 2ND RESPONDENT. EXT.P6 TRUE COPY OF THE REVISION PETITION DTD. 28/2/06 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P7 TRUE COPY OF THE DELAY CONDONATION PETITION DTD. 28/2/06 SUBMITTED BY THE PETITINER BEFORE THE IST RESPONDENT. EXT.P8 TRUE COPY OF THE STAY PETITION DTD. 28/2/06 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P9 TRUE COPY OF THE ORDER DTD. 24/3/06 PASSED BY THE IST RESPONDENT. EXT.P10 TRUE COPY OF THE RECEIPT DTD. 5/4/05. EXT.P11 TRUE COPY OF THE RELCEIPT DTD. 3/8/05. P.R.RAMAN, J. --------------------------- W.P.(C).NO.16260 OF 2006 ---------------------------- DATED THIS THE 1ST DAY OF SEPTEMBER,2008 JUDGMENT Petitioner appealed against the order of building tax assessment before the Appellate Authority. That appeal was dismissed by Ext.P5 stating that the appeal is filed beyond 6 months and 12 days and hence beyond the power of the Appellate Authority to condone the delay as it was limited by the provisions contained under Section 11 of the Kerala Buildings Tax Act. In other words, the Appellate Authority took the view that though the appeal time is ordinarily 30 days, it could condone the delay upto 6 months as per Section 11 and not beyond that period. The Revisional Authority in such circumstances, confirmed the order of the Appellate Authority. Aggrieved thereby the petitioner has preferred this writ petition seeking to quash Exts.P1 and P2. It is pointed out by the learned Government Pleader in the counter affidavit that the assessment order was received by the petitioner -2- WPC.16260/06 only on 1/5/2005. If so, the appeal filed on 30/9/2005 is well within the period of six months and therefore the Appellate Authority had power to condone the delay. But the learned Government Pleader points out that the appeal was filed only on 4/10/2005, after 6 months and 4 days of the receipt of the order of assessment. Thus beyond six months. Nothing is produced before me to show that the appeal was filed on or before the expiry of 6 months period provided under Section 11. Even though the appeal is dated 30/9/2005, there is nothing to show that the appeal was filed on the said date before the Appellate Authority. No other independent evidence is also produced to show that the appeal was filed on any day prior to the 6 months' period. In view of the counter affidavit filed by the State contending that the appeal has been received by the Appellate Authority only on 4/10/2005 and in the absence of any contra evidence, it has to be held that the petitioner has not established the basic fact required for setting up the contention that the Appellate Authority was wrong in not -3- WPC.16260/06 considering the appeal on merits. If the appeal was filed beyond six months' period, necessarily the Appellate Authority has no power to condone the delay and therefore, both the appellate order and the revisional order are correct. Since the petitioner has not exercised his right of appeal within the time as prescribed by law, Article 226 being a discretionary remedy cannot be exercised to overcome the period of limitation prescribed under the statute and to consider the same on merits. I find no merit in this writ petition and accordingly the same is dismissed. P.R.RAMAN, Judge. kcv.