VAZHAKKALA ESTATE PRIVATE LIMITED Vs. STATE OF KERALA

JUDGEMENT

(1.) The matter arises under the Kerala Plantations Tax Act, 1960 (Act 17/60). The petitioner is an assessee under the said Act in respect of plantation held by it in four. Taluks spread in three districts. The Assistant Collector, Ottapalam initiated proceedings under S.19(b) of the Act against the petitioner alleging that it had not filed proper return under S.4 of the Act. According to the third respondent, the petitioner had not filed return under S.4 of the Act until 29.5.1989 though there was yield from the properties from 1969 onwards which is a violation of the provisions of sub-ss. (1) and (2) of S.4 of the Act. The petitioner filed returns only on 29.5.1989 and plantation tax was assessed on the petitioner from 1969-70 to 1989-90 for a total sum of Rs. 1,01,025/-. It is also stated that the non filing of returns under S.4 of the Act in time and non furnishing the information regarding plantations in four Taluks in three revenue districts in the return filed before the third respondent was with the sole motive of escaping the assessment of plantation tax. On these grounds the third respondent imposed on the petitioner a fine of Rs. 5/- per day for 7365 days from 1.4.1969 to 28.5.1989 totalling to Rs. 36,825/- and the petitioner was directed to remit the said amount on or before 25.3.1991, evidenced by Ext. P1. Aggrieved by the said order, petitioner filed appeal before the second respondent. During the pendency of the appeal when proceedings were initiated for recovery of the demand, petitioner filed O.P. No. 3632 of 1991 and this court by judgment dated 24th June, 1996 disposed of the same by directing the second respondent to consider and pass orders on the appeal, evidenced by Ext. P2. Thereafter, the second respondent disposed of the appeal by order dated 28.5.1997, evidenced by Ext. P3. It is stated in the said order that the fact that the petitioner is having estates in more than one district came into light only when the appeal petition against the assessment order of the Tahsildar, Mannarkkad was disposed of by the Sub Collector, Ottapalam on 25.7.1989 and on that basis the Sub Collector revised the assessment from 1969 onwards after getting verification report from the concerned officers as per assessment orders dated 6.3.1991. It was also noticed that assessments were not being made in each Taluk separately from 1969. It is also stated that the fact that the appellant (petitioner herein) is being assessed separately by the Tahsildar, Mannarkkad and Tahsildar, Punalur is also accepted by the assessing authority and therefore, it is not a case of not filing a return, but not filing a proper return before the proper assessing authority. The second respondent had remitted the matter to the third respondent with the direction to give an opportunity to the petitioner to put forward its case and also to verify the returns filed by the appellant from 1969-70 before the Tahsildar, Mannarkkad and to verify whether the details of all lands in the State were declared in those returns. While doing so, the second respondent rejected the plea of the petitioner that the authority to impose penalty under S.19(b) is not clearly mentioned and that the assessing authority is not competent to impose penalty stating that the authority to impose fine for not filing returns is the authority before whom the return ought to have been filed and in this case the Sub Collector, Ottapalam is the authority.

(2.) In this Original Petition the petitioner has challenged the very jurisdiction of the third and second respondents in imposing the fine under S.19(b) of the Act. The learned counsel appearing for the petitioner submitted that the second and third respondents have no authority to pass an order imposing fine under S.19(b) of the Act. The learned counsel further submitted that the fine under S.19(b) can be imposed only by a Magistrate and therefore, Ext. P1 order imposing fine and Ext. P2 order holding that the third respondent has power to impose the fine under S.19(b) are unauthorised and non est in law. The learned counsel also submitted that though a remedy by way of reference to the District Court is provided under S.9A and since Exts. P1 and P2 orders are wholly without jurisdiction, the petitioner has not resorted to the said remedy and has challenged the same in this proceedings. It is also stated that though the petitioner had initially challenged Ext. P3 order passed by the second respondent and also sought for a declaration that the third respondent has no jurisdiction to proceed against the petitioner under S.19 of the Act for imposition of fine, the petitioner filed CMP No. 29892 of 1997 for amendment of the O.P. by challenging Ext. P1 order passed by the third respondent also. The learned counsel took me to the provisions of S.19, 22 and 23 of the Act and also the Notification No. 37225/B3/60/RD dated 6th October, 1960 published in the Gazette dated 25th October, 1960 and submitted that the third respondent has no authority to pass orders under S.19 and that even the second respondent, who is the authority notified as provided under S.20(1) of the Act, has jurisdiction only to sanction prosecutions for offences under S.18, 19, 20 and 21 of the Act.

(3.) I have heard the learned Government Pleader also. He submitted that it is the assessing authority who has got the power to impose fine as contemplated under S.19 of the Act if it is found that there is violation of the provisions of S.4 of the Act. He also submitted that Ext. P1 proceedings has been initiated by the third respondent assessing authority in the course of the assessment proceedings. He further submitted that if the petitioner is aggrieved by Exts. P1 and P3 orders passed by the third and second respondents respectively its remedy is only by way of a reference to the District Court as provided under S.9 A of the Act and that the petitioner has not availed the said remedy.