IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 11835 of 2010(D) -------------------------------------- PETITIONER: ------------------- M/S. ST.MARY'S HOTELS(P) LTD., KODIMATHA, KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR, T.O.ABRAHAM, RESIDING AT THOTTATHIL HOUSE, THURUTHIKKAD, MALLAPPALLY. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE, ADV. SRI.MILLU DANDAPANI. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM. 3. THE DEPUTY COMMISSIONER (INTELLIGENCE), COMMERCIAL TAXES, TRIVANDRUM. 4. THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE), COMMERCIAL TAXES DEPARTMENT, KOTTAYAM. 5. THE INTELLIGENCE OFFICER, INTELLIGENCE SQUAD NO.1, COMMERCIAL TAXES DEPARTMENT, KOTTAYAM. 6. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, KOTTAYAM. W.P.(C). NO.11835/2010-D: 7. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES DEPARTMENT, KOLLAM. 8. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES DEPARTMENT, KOTTAYAM. R1 TO R8 BY GOVT. PLEADER SRI. V.K. SHAMSUDEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.11835 of 2010-D ---------------------------- Dated this the 6th day of April, 2010. J U D G M E N T Being aggrieved of the proceedings pursued by the departmental authorities, the petitioner had approached this Court earlier by filing W.P(C) No.3500 of 2010, where interference was declined, as borne by Ext.P14 judgment. Aggrieved of the said verdict, the petitioner preferred W.A.No.433 of 2010, which was subsequently withdrawn; however without prejudice to pursue the statutory remedy; giving appropriate direction to the appellate authority to consider and pass appropriate orders on the interlocutory applications for stay, during the pendency of the appeals. 2. Pursuant to Ext.P15 judgment passed by the Division Bench as above, the interlocutory applications for stay were taken up and posted for consideration on 17.3.2010 and notice of posting was communicated to the authorised representative, who is a lawyer representing the petitioner before the seventh respondent. However, it remains a fact that the learned counsel who represented W.P(C) No.11835 of 2010-D 2 the petitioner could not turn up before the seventh respondent on the scheduled date for hearing and he sent a 'telegram' stating that he could not appear on that date as he was laid up and requesting for three week's time for further consideration of the matter. 3. After considering the said request, sent by telegram, the seventh respondent, as per Ext.P18 series of orders observed that there was a clear default on the part of the petitioner/appellant and accordingly, the said petitions were dismissed for default, which are under challenge in this Writ Petition. The petitioner is also aggrieved of Ext.P20 prohibitory order dated 27.3.2010 passed by the concerned authority, in furtherance to this. 4. Heard the learned Government Pleader as well. 5. On going through the materials on record, it is very much evident from Ext.P18 that the only reason for dismissing the petitions for stay is that there was no evidence in support of the statement that the 'advocate' was not well. Admittedly, the merit involved has not been considered or decided by the appellate authority and this being the position, eventhough the counsel representing the petitioner had not appeared before the appellate authority, the merit ought to have been considered, so as to give the W.P(C) No.11835 of 2010-D 3 effect of the verdict passed by the Division Bench of this Court vide Ext.P15; if the adjournment was not possible. In other words, it cannot be said that the impugned order passed by the appellate authority is with an intent to give effect of the verdict passed by this Court. That apart, absolutely no reason has been stated as to any prejudice likely to be caused to the opposite side, if the adjournment was granted by three weeks or as to the necessity to have the matter finalised on 24.3.2010 itself; more so, when the matter was actually scheduled for hearing on 17.3.2010, on which date, the appellate authority did not find it necessary to dismiss the matter for default and such a course was pursued only after the receipt of the telegram on 23.3.2010. 6. In the above circumstances, this Court finds that the impugned orders (Ext.P18 series) are not correct or sustainable. Accordingly, they are set aside. The seventh respondent is directed to reconsider the matter and to pass appropriate orders in the interlocutory applications in accordance with law, with specific reference to the grounds in the appeal and the contentions made on the part of the petitioner, after giving an opportunity of hearing of the petitioner, which shall be done within one month. So as to W.P(C) No.11835 of 2010-D 4 facilitate such exercise, the petitioner is directed to be present before the seventh respondent on the 23rd of this month, so as to the matter can be decided by the seventh respondent, on the said date or on such other date to which the matter is adjourned, however, keeping the time schedule as specified above. Implementation of Ext.P20 prohibitory order shall be kept in abeyance for the time being and it shall be subject to the orders to be passed by the appellate authority as above. The Writ Petition is allowed to the above extent. No cost. Sd/- P.R.RAMACHANDRA MENON JUDGE //True Copy// P.A to Judge ab