IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 OP.No. 3612 of 1993(E) ---------------------------------- PETITIONER: -------------------- K.C.THOMAS, SECURITY EQUIPMENT AGENCIES, BANERJI ROAD, ERNAKULAM, COCHIN – 682 018. BY ADV. SRI.GEORGE THOMAS (MEVADA) SRI.REYNOLD FERNANDEZ SMT.JULIE DAVIS SRI.SUSEEL JOSEPH CYRIAC RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF KERALA, TRIVANDRUM. 2. THE AGRICULTURAL INCOME TAX OFFICER, ALATHUR. 3. THE APPELLATE ASST.COMMISSIONER, AGRL.INCOME TAX AND SALESTAX, PALGHAT. 4. DEPUTY COMMISSIONER (APPEALS), AGRL.INCOME TAX AND SALES TAX, KOZHIKODE. 5. TAHSILDAR, ALATHUR. 6. DISTRICT COLLECTOR, PALGHAT. 7. VILLAGE OFFICER, MANGALAM DAM, ALATHUR. Kss ..2/- ...2.... O.P.NO.3612/1993 E 8. C.M.THOMAS, CHUNGAPURA HOUSE, MANGALAM DAM VILLAGE, PALGHAT. *ADDL.R9 IS IMPLEADED: R9. SUSY, D/O.MATHEW, PARAKULANGARA KUDAYATHUR KARA, VELLIYAMATTOM VILLAGE, THODUPUZHA TALUK. NOW RESIDING AT: C/O. CYRIAC THOMAS, KIZHAKKEKARA HOUSE, MUNDALLUR P.O., PALAKKAD DISTRICT. (*ADDL.R9 IS IMPLEADED AS PER ORDER DTD. 25/02/2008 IN I.A.NO.14089/2004) R1 TO R7 BY GOVERNMENT PLEADER SRI.V.TEKCHAND R8 BY ADV. SRI.P.C.JOSEPH PAZHEPARAMBIL THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss O.P.NO.3612/1993 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER OF 4TH RESPONDENT DTD. 28/01/87. EXT.P2: COPY OF ORDER DTD. 26/05/87 PASSED BY THE 2ND RESPONDENT. EXT.P3: COPY OF DEMAND NOTICE DTD. 17/09/87 ISSUED BY 5TH RESPONDENT TO THE PETITIONER. EXT.P4: COPY OF NOTICE ISSUED BY THE 5TH RESPONDENT DTD. 12/01/88 REGARDING ATTACHMENT OF 2 ACRES OF PROPERTY OF PETITIONER & OTHERS. EXT.P5: COPY OF REPRESENTATION SENT BY LOVELY THOMAS TO 5TH RESPONDENT. EXT.P5(A): COPY OF POSTAL ACKNOWLEDGMENT DTD. 2/04/88 RECEIVED BY LOVELY THOMAS FROM 5TH RESPONDENT. EXT.P6: COPY OF PROCEEDINGS OF TAHSILDAR, ALATHUR, 5TH RESPONDENT DTD. 29/03/89. EXT.P7: COPY OF REVISIONAL ORDER PASSED BY THE 4TH RESPONDENT DTD. 27/08/90. EXT.P8: COPY OF PETITION FILED BY THE PETITIONER BEFORE THE 6TH RESPONDENT DTD. 28/06/90. EXT.P9: COPY OF PETITION FILED BY THE PETITIONER BEFORE THE 6TH RESPONDENT DTD. 7/06/91. EXT.P10; COPY OF ORDER PASSED BY HON'BLE HIGH COURT IN O.P.NO.7764/92Y DTD. 25/06/92. EXT.P11: COPY OF ORDER PASSED BY 6TH RESPONDENT DTD. 30/07/92. EXT.P12: COPY OF THE NOTICE DTD. 23/05/86 SENT BY THE PETITIONER THROUGH HIS COUNSEL, ADDRESSED TO THE BROTHER OF 8TH RESPONDENT SRI.CHUNGAPURAKKAL MATHEW. Kss ..2/- ...2..... O.P.NO.3612/1993E 8TH RESPONDENT'S EXHIBITS: EXT.R8(A); COPY OF CERTIFICATE OF SALE OF MOVABLE PROPERTY NO.R.DIS.4193/88 DTD. 31/08/89 ISSUED BY THE REVENUE DIVISIONAL OFFICER, PALGHAT. EXT.R8(B): COPY OF MAHAZAR DTD. 4/12/89 ISSUED BY THE VILLAGE OFFICER, MANGALAM DAM. 9TH RESPONDENT'S EXHIBITS: EXT.R9(A): COPY OF SALE DEED NO.1244OF 1994 DTD. 5/03/1994. EXT.R9(B): COPY OF SETTLEMENT DEED NO.2443 OF 1979 DTD. 9/8/1979 OF THE S.R.O., PALAKKAD. RESPONDENT'S ANNEXURE: ANNEXURE A: COPY OF THE PROCEEDING DTD. 4/10/2005. /TRUE COPY/ P.A.TO JUDGE Kss Thottathil B. Radhakrishnan, J. ================================== O.P.No.3612 of 1993 ================================== Dated this the 25th day of February, 2008. JUDGMENT I.A.No.14089 of 2004 is allowed today impleading the additional ninth respondent Sri.K.C.Thomas. Adv.Sri.Joseph Pazheparambil appears for him and also for the eighth respondent, Sri.C.M.Thomas. 2. This writ petition is filed challenging the revenue sale, which stands confirmed by the statutory officials. 3. This writ petition was once decided by a learned single Judge holding that the petitioner will be entitled to refund of certain moneys in deposit after the sale confirmed as per Ext.P11 stands. That judgment had been set aside by the Division Bench and this writ petition remitted for OP3612/1993 -:2:- re-consideration on merits. 4. The petitioner faces an order of assessment under the Agricultural Income Tax Act as if he is an individual. It was his contention that he is to be treated along with certain others as tenants in common in relation to the property, the income of which was subject to assessment, under the Agricultural Income Tax Act. That issue was decided against the petitioner by the assessing authority, the second respondent. By Ext.P1, the fourth respondent remitted that issue for reconsideration to the second respondent. The second respondent again decided the issue against the petitioner as per Ext.P2. That order, as of now, stands set aside by the fourth respondent in Ext.P7, which again is an order of remit to consider the question as to whether the petitioner is to be assessed as an individual or one among the tenants in common. It is the admitted situation OP3612/1993 -:3:- that, as of now, no final order of assessment has been passed in relation to the petitioner following the order of remit made in Ext.P7.” 5. Learned counsel for the eighth respondent, the auction purchaser and his transferee, the additional ninth respondent, rightly states that the legality, regularity and propriety of the sale impugned in Ext.P11 proceedings would be too premature to be considered since the primary question to be decided is to ascertain the amount due to the Government. Taking note of the aforesaid submission, I issued an interim order on 9-1-2006 directing the authorities under the Agricultural Income Tax Department to finalize the proceedings of assessment. This was done after noticing that those proceedings were not concluded, though a sale has been conducted. It is now submitted on behalf of the State Government that assessment orders have been issued and that OP3612/1993 -:4:- the writ petitioner has filed appeals against those orders which will have to be considered by the statutory appellate authorities. Therefore, the order impugned in this writ petition, namely Ext.P11, cannot be treated as a final order and has to be subjected to further consideration, particularly when, it will be too premature, as of now, to consider the legality, propriety or regularity of the sale proceedings. In the aforesaid circumstances, this writ petition is disposed of directing that the statutory appeals filed by the petitioner against the assessment orders passed during the pendency of this writ petition shall be concluded within a period of six months from the date of receipt of a copy of this judgment and the petitioner's application to set aside the sale be taken up by the competent authority and the matter would be re- considered, having regard to the context. It is OP3612/1993 -:5:- also clarified that Ext.P11 order will not stand in the way of de novo consideration of the sustainability of the sale on all grounds as are available under law. Thottathil B.Radhakrishnan, Judge. sl. OP3612/1993 -:6:- Thottathil B. Radhakrishnan, J. ================================== O.P.No.3612 of 1993 ================================== JUDGMENT Dated:25-2-2008