Kunju Ninan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943** ## **WP(C) NO. 9288 OF 2021** ## **PETITIONERS:** **KUNJU NINAN, AGED 62 YEARS, S/O.PHILIP, ANITHA BHAVAN, MAVILA, AREEPLACHI P.O., THOLICODU (VIA), PUNALUR, KOLLAM DISTRICT PIN 691 333 BY ADV ANCHAL C.VIJAYAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REP.BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001.** - **2 THE DISTRICT COLLECTOR OFFICE OF THE DISTRICT COLLECTOR, KOLLAM, PIN 691 013.** - **3 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PUNALUR, PIN 691 305, KOLLAM DISTRICT.** - **4 THE TAHSILDAR TALUK OFFICE PUNALUR, PIN 691 305, KOLLAM DISTRICT.** - **5 ANCHAL GRAMA PANCHAYAT REP.BY ITS SECRETARY, PANCHAYAT OFFICE, ANCHAL, PIN 691 306, KOLLAM DISTRICT. BY ADV SHRI.C.J.JOY, SC,ANCHAL GRAMA PANCHAYAT, DR. THUSHARA JAMES-SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 9288 OF 2021** **2** ## BECHU KURIAN THOMAS, J …........................................... ## W.P.(C) No.9288 of 2021 ….................................. Dated this the 8[th] day of September, 2021 ## JUDGMENT An order of assessment was passed against the petitioner on 24.02.2020 under the Kerala Building Tax Act, 1975. Challenging the said assessment order, petitioner preferred Ext.P12 appeal before the 3[rd] respondent. In preferring the appeal there was a delay of 30 days. It is seen from the order that the was filed on impugned appeal only 12.10.2020. The appellate authority by Ext.P13 order dated 27.10.2020 dismissed the appeal on the ground that the appeal was belated. The petitioner challenges the said order dismissing the appeal on the ground of delay. 2. Writ petitioner relies upon the judgment of the Hon'ble Supreme Court in Re Cognizance for **WP(C) NO. 9288 OF 2021** **3** Extension of Limitation v. XXX , Miscellaneous Application No.665/2021 in SMW(C) No.3/2020, and contended that the period of limitation in all cases have been extended by the afore stated decision. According to the petitioner, Ext.P13 is thus liable to be set aside and the appellate authority is bound to re-consider the appeal on merits. 3. I have heard Adv.Anchal C.Vijayan, the learned counsel for the petitioners. I have also heard Adv.Dr.Thushara James, learned Senior Government Pleader on behalf of respondents 1 to 4 and Adv.C.J.Joy, the learned Standing Counsel on behalf of the 5[th] respondent. 4. It is seen from Ext.P10 that this Court had granted permission to the petitioner to withdraw the writ petition filed by him and to prefer a statutory appeal against the order of assessment. It is, thereafter, that Ext.P12 appeal was filed by the petitioner before **WP(C) NO. 9288 OF 2021** **4** the 3[rd] respondent, challenging Ext.P6 order of assessment. However, the appeal stands dismissed on the ground of delay. 5. In the order impugned, the only reason stated for dismissing the appeal is that the appeal was filed beyond the period stipulated in Section 11(3) of the Kerala Building Tax Act, 1975. 6. As rightly contended by the learned counsel for the petitioner, the afore stated reasoning of the appellate authority is contrary to the judgment of the Apex Court in Re Cognizance for Extension of Limitation v. XXX [2021 (2) KHC 291]. In the above named case, the Apex Court had suo motu taken cognizance of the situation faced by the litigants on account of the pandemic and directed the extension of period of limitation under various Statutes. In fact the Hon'ble Supreme Court, had, by order dated 23.03.2020 reported in Re: Cognizance for Extension of **WP(C) NO. 9288 OF 2021** **5** Limitation [ILR 2020 (2) Kerala 75] directed that the period of limitation in filing petitions/ applications/ suits/ appeals/ all other proceedings, irrespective of the period of limitation prescribed under the general or special laws, shall stand extended with effect from 15.03.2020 till 14.03.2021. The said extension of limitation, was in fact, further extended by the Hon'ble Supreme Court by its order dated 08.03.2021 and again on 27.04.2021, which are in any case not relevant for this case since those falls in the period after the appeal was filed. 7. Taking recourse to the order of the Hon'ble Supreme Court as mentioned above, the appeal filed by the on 12.10.2020 cannot be as petitioner regarded belated. The period from 15.03.2020 till the date of filing the appeal i.e., 12.10.2020 is liable to be excluded while calculating the limitation. So viewed, Ext.P13 order, which has hastily come to a **WP(C) NO. 9288 OF 2021** **6** conclusion that the appeal has been filed belatedly is incorrect and is contrary to the directions of the Hon'ble Supreme Court. In view of the above, Ext.P13 is set aside. 8. While setting aside Ext.P13 order of the 3[rd] respondent, I direct Ext.P12 appeal filed by the petitioner before the 3[rd] respondent on 12.10.2020 be treated as one filed within time and also direct the said appeal to be considered and disposed of on merits, as expeditiously as possible, after hearing the parties. The writ petition is allowed as above. Sd/- BECHU KURIAN THOMAS, JUDGE AMV/08/09//2021 **WP(C) NO. 9288 OF 2021** **7** ## **APPENDIX OF WP(C) 9288/2021** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.A5-8300/19 DATED 28.1.2020 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2 TRUE COPY OF RETURN SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT FOR ASSESSING THE EXTENSION OF THE RESIDENTIAL BUILDING EFFECTED AS PER THE BUILDING TAX ACT. EXHIBIT P2 (A) ENGLISH TRANSLATION OF EXHIBIT P2 EXHIBIT P3 TRUE COPY OF NOTICE ISSUED BY THE 4TH RESPONDENT DATED 21.12.2019 FOR HEARING ON 7.1.2020 TO THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 18.3.2020 EXHIBIT P4 (A) ENGLISH TRANSLATION OF EXHIBIT P4 EXHIBIT P5 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 11.2.2020 EXHIBIT P5 (A) ENGLISH TRANSLATION OF EXHIBIT P5 EXHIBIT P6 TRUE COPY OF THE ORDER OF ASSESSMENT DATED 24.2.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE COMMUNICATION NO.B4-11393/19 DATED 28.2.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE COMMUNICATION NO.B4-11393/19 DATED 29.2.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P8 (A) ENGLISH TRANSLATION OF EXHIBIT P8 EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 14.9.2020 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. EXHIBIT P9 (A) ENGLISH TRANSLATION OF EXHIBIT P9 EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 29.9.2020 IN W.P.C. NO.20296/2020 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P11 TRUE COPY OF THE RECEIPT NO.KL 02060208513/2020 DATED 1.10.2020 ISSUED BY THE VILLAGE OFFICER, ANCHAL EXHIBIT P11 (A) ENGLISH TRANSLATION OF EXHIBIT P11 EXHIBIT P12 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT IN FORM X ALONG WITH FACTS IN DETAILS. EXHIBIT P12 (A) ENGLISH TRANSLATION OF EXHIBIT P12 EXHIBIT P13 TRUE COPY OF THE ORDER NO.K.DIS. 5475/2020-J DATED 27.10.2020 ISSUED BY THE 3RD RESPONDENT IN THE APPEAL FILED BY THE PETITIONER. EXHIBIT P13 (A) ENGLISH TRANSLATION OF EXHIBIT P13** **8** ## **WP(C) NO. 9288 OF 2021** **EXHIBIT P14 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 16.11.2020 EXHIBIT P14 (A) ENGLISH TRANSLATION OF EXHIBIT P14. EXHIBIT P15 TRUE COPY OF THE ORDER IN MIS.APPLN.NO.665/2021 IN SMW(C) NO.3/2020 IN RE COGNIZANCE FOR EXTENSION OF LIMITATION VS.XXXX ON 27.04.2021 PASSED BY THE HON'BLE SUPREME COURT OF INDIA.** ## **RESPONDENTS EXHIBITS : NIL** **TRUE COPY P.A.TO JUDGE**