IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 8367 of 2006(U) ------------------------- PETITIONER: ----------------- T.K.MOHANAN, KURUM KUNALU, VELLARIKUNDU P.O., PARAPPA (VIA), KASARAGOD. BY ADV. SRI.A.SUDHI VASUDEVAN RESPONDENTS: ---------------------- 1. THE SUB COLLECTOR, KANHANGAD, KASARGOD. 2. THE TAHSILDAR, HOSDURG. BY GOVT.PLEADER SRI MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.8367/2006 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE CERTIFICATEL DTD. 5/8/05 ISSUED BY THE SECRETARY, KINANOOR KARINDALAM GRAMA PANCHAYAT TO THE PETITIONER. EXT.P2 TRUE COPY OF THE DEMAND NOTICE DTD. 8/3/05 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER UNDER THE R.R. ACT. EXT.P3 TRUE COPY OF THE RECEIPT DTD. 30/3/05 ISSUED BY THE VILLAGE OFFICER, EVIDENCINGL; RECEIPT OF RS.10,000/- FROM THE PETITIONER. EXT.P4 TRUE COPY OF THE APPEAL DTD. 4/6/05 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER DTD. 28/6/05 PASSED BY THE IST RESPONDENT. EXT.P6 TRUE COPY OF THE REPRESENTATION DTD. 13/3/06 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7 TRUE COPY OF THE ASSESSMENT ORDER DTD. 22/12/2003 ISSUED BY THE 2ND RESPONDENT. EXT.P8 TRUE COPY OF THE SKETCH SHOWING THE PLINTH AREA OF THE HOUSE AND THE CAR PORCH. TRUE COPY P.S. TO JUDGE P.R. RAMAN, J. = = = = = = = = W.P.(C) NO. 8367 OF 2006 = = = = = = = = = = = = = = = = 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/-