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2002 DIGILAW 563 (KER)

Sr. Tecla Francis v. District Collector

2002-08-26

G.SIVARAJAN

body2002
Judgment :- The petitioners is the Mother Superior of Assissi Sanyasini Samooham, Cherthala. She was originally assessed to plantation tax under Section 5(4) of the Kerala Plantation Tax Act, 1960 (hereinafter referred to as the Act’) for the years 1975-76 to 1984-85. Subsequently, the second respondent invoked Section 3(3) of the said Act and passed Ext.P1 order including few more items of properties in the assessment. The petitioner being aggrieved by the said order filed Ext.P2 appeal before the first respondent. Though the first respondent had initially entertained the appeal and granted stay of all further proceedings, pursuant to Ext.P1 the same was withdrawn by order dated 30.1.1993 (Ext.P5). The reason stated in the said order is that the appeal (Ext.P2) was preferred by the petitioner against an order passed under Section 5(4) of the Act and that by virtue of the proviso to Section 9, no appeal will lie against an order passed under section 5(4) of the Act. 2. This Original Petition challenging the said order was filed as early as in 1993 and an order of stay was also granted. Shri Mathew John, learned counsel for the petitioner submits that Ext.P5 order is unsustainable for two reasons: (1) the said order has been passed without complying with the principles of natural justice, viz., a personal hearing and (2) the second respondent has illegally taken the stand that Ext.P1 order is one passed under Section 5(4). 3. A counter affidavit has been filed on behalf of the respondents. Paragraphs 3 and 4 of the said counter affidavit read as follows: "3. The Assissi Sanyasini Samoohan own an extent of 4 acres in Manjoor village of Vaikom Taluk, 2.86 acres in Sherthallai South Village of Sherthallai Taluk. The tahsildar. Vaikom after verification reported to the second respondent that major portion of the plantation of the petitioner are in Vaikom Taluk and accordingly the assessment under Section 5(b) of the Kerala Plantation Tax Act was proposed. A notice u/s.4(3) dated 17.2.72 under the Kerala Plantation Act was also served on the assessee. The assessee did not submit any reply and accordingly a further notice u/s.5(2) of the Act was also served on the assessee on 3.6.75. the assessee did not submit any objection to the aforesaid proposal. The second respondent according completed the assessment and passed an order of assessment u/s.5(4) of the Act on 24.6.75. 4. The assessee did not submit any reply and accordingly a further notice u/s.5(2) of the Act was also served on the assessee on 3.6.75. the assessee did not submit any objection to the aforesaid proposal. The second respondent according completed the assessment and passed an order of assessment u/s.5(4) of the Act on 24.6.75. 4. Section 3(3) of the Act Authorises the Assessing Authority to Suo Moto revise order of assessment with reference to the extent of plantation held by the assessee after affording the assessee an opportunity of being heard. After verification, reports were called for from the concerned Tahsildars and thereafter a notice under Section 3(3) of the Act was served on the petittioner on 16.10.87. As per original assessment the extent held by the assessee was taken as 6.86 acres. But the subsequent verification revealed that the assessee really own and holding 35.31.906 acres in Manjoor, Vadayar, Naduvila and Vellor Village of Vaikom Taluk. In reply to the notice for revision dated 29.4.1987, the petitioner filed objections on 31.10.87 stating that all the properties mentioned in the notice are owned by the Convent and there are some difference with regard to the number of yielding tress. The second respondent heard the petitioner in the matter on 26.2.83. Subsequently on 18.4.88, the petitioner filed another written statement stating that the properties mentioned in her objection dated 31.10.87 are belonging to 5 separate institutions viz., (a) Saint Augustines Convent, Manvetuur Memuri, (b) Little Flower Convent, Thalayolaparambu, Vadayar, (c) Assumption Convent. Vaikom, (d) St.Joseph's Covent, Neerpara (e) Assissi Convent Green Gardens, Shertallai South and that these institutions may be exempted from plantation tax." In the counter affidavit it is only stated that the appeal was dismissed as not maintainable as no appeal is provided against an order under Section 3(3) and that the reasons stated are sound and legal. The learned Government Pleader appearing for the respondents submits that the petitioner herself had admitted in her reply to the show cause notice issued under Section 3(3) of the Act that all the properties assessed under Ext.P1 belong to the petitioner's convent and, therefore, Ext.P1 order is valid. 3. As already noted, this writ petition is filed against Ext.P5 order. The said order admittedly does not deal with the merits of the case. 3. As already noted, this writ petition is filed against Ext.P5 order. The said order admittedly does not deal with the merits of the case. The first respondent has dismissed the appeal on the ground that no appeal will lie against an order under Section 5(4) of the Act. The counter affidavit filed by the respondents however takes the stand that the appeal was dismissed on the ground that no appeal will lie against an order passed under Section 3(3) of the Act which was not the stand in Ext.P5. 4. In order to appreciate the rival contentions, it is necessary to refer to the relevant provisions of the Act. Section 3 is the charging section. Sub-section (1) thereof reads as follows: "(1) Subject to the other provisions contained in this Act, for every financial year commending on and from the first day of April, 1960, there shall be charged in respect of the lands comprised in plantations held by a person on the corresponding valuation date a tax (hereinafter referred to as "plantation tax") at the rates specified in Schedule I; and the person holding such plantations shall be liable to pay the plantations tax". "˜Person" is defined in Section 2(5) of the Act, which means any individual whether as owner trustee, receiver, common manager, administrator or executor or in any capacity recognised by law, and includes any institution capable of holding properties. Section 5 deals with the determination of the extent of plantation and the assessment of plantation tax. Under Section 5(4) if any person fails to make a return under. sub-section (3) of Section 4, or fails to comply with all the terms of a notice issued under sub-section (5) of that section or under sub-section (2) of this section, the assessing authority shall determine the extent of plantation to the best of his judgment and assess the plantation tax payable by the assessee on the basis of extent of the plantation so determined. Section 3(3) (a) of the Act provides that the assessing authority may, at any time, suo motu revise the extent of plantations held by an assessee determined under Section 5 after affording him a reasonable opportunity of being heard. Section 9 of the Act deals with appeal against assessment. Section 3(3) (a) of the Act provides that the assessing authority may, at any time, suo motu revise the extent of plantations held by an assessee determined under Section 5 after affording him a reasonable opportunity of being heard. Section 9 of the Act deals with appeal against assessment. Section 9(1) along with the proviso reads as follows: "(1) Any assessee objecting to the extent of plantation or the amount of plantation tax assessed under Section 5 or section 6A or denying his liability to be assessed under this Act or objecting to any order of the assessing authority under this Act may appeal to the appellate authority against the assessment or against such order; Provided that no appeal shall lie in respect of an assessment made under sub-section (4) of Section 5 or under Section 6." 4. Coming to the facts of the case, admittedly the assessment has been made under Section 5(4) of the Act. The said order is not the subject matter in this Original petition. Ext.P1 is an order passed under Section 3(3) of the Act. By the said order few more items or properties are also included in the assessment. Admittedly the petitioner has filed Ext.P2 appeal only against Ext.P1 order, which is one passed under Section 3(3) of the Act. Unfortunately, the first respondent has taken the stand that the said order is one passed under Section 5(4) of the Act. It is patently incorrect. Ext.P1 order clearly states that it is an order passed under Section 3(3). Section 3(3) contemplates a case where Section 5 order has been passed. It is the admitted case that an assessment under Section 5(4) of the Act was made earlier. Hence, the reason stated by the first respondent for rejecting the appeal is illegal. 5. Thus the only question to be considered is as to whether an appeal would lie under Section 9 against an order passed under Section 3(3) of the Act. I have already extracted the provisions of Section 9(1) of the Act which deals with appeals. It must be noted that Section 9 Clearly provides for an appeal by any assessee objecting to the extent of plantation. Proviso to Section 9(1) only provides that no appeal shall lie in respect of an assessment made under sub-section (4) of Section 5 or under Section 6. It must be noted that Section 9 Clearly provides for an appeal by any assessee objecting to the extent of plantation. Proviso to Section 9(1) only provides that no appeal shall lie in respect of an assessment made under sub-section (4) of Section 5 or under Section 6. Section 9(1) also clearly provides for an appeal by any assessee objecting to any order of the assessing authority under this Act. Needless to say that Ext.P2 appeal is filed against an order passed under this Act, i.e., an order under Section 3(3) regarding the extent of the land. 6. In the above circumstances the appellate authority has committed a serious illegality in rejecting the appeal filed by the petitioner. That apart since the appellate authority had initially entertained the appeal and granted stay, the said authority was duty bound to afford an opportunity of being heard to the petitioner before passing the impugned order. No such opportunity was given. If the appellate authority had afforded such an opportunity to the petitioner, it would have been possible for the petitioner to submit before the appellate authority that an appeal against Ext.P1 order will lie under Section 9 of the Act. Ext. P5 order is bad for that reason also. In the above circumstances, I quash Ext P5 order. I direct the first respondent to consider Ext.P2 appeal afresh on merits and in accordance with law, after affording an opportunity of being heard to the petitioner. This will be done within three months from the date of receipt of a copy of this judgment. I make it clear that I have not considered the merits of the appeal in this Original Petition. Original Petition is disposed of as above.