IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 19577 of 2007(E) -------------------------- PETITIONER: ------------------- N.SADANANDA PAI & COMPANY, XXXXIV/853, T.C.ROAD, P.B.NO.21, THALASSERY-670101 REPRESENTED BY PARTNER P.MANJUNATHA KAMMATH. BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENTS: --------------------- 1. ASSISTANT COMMISSIONER(ASSMT.), COMMERCIAL TAXES DEPARTMENT, SPECIAL CIRCLE, KANNUR. 2. COMMISSIONER OF COMMERCIAL TAXES, PUBLIC OFFICE BUILDINGS, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY(TAXES), GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 4. KERALA ELECTRIC TRADERS ASSOCIATION, P.B.NO.2430, CHITTOOR ROAD, KOCHI-682016 REPRESENTED BY ITS SECRETARY SRI.MOHAN PRASAD. R1 TO R3 BY GOVERNMENT PLEADER SRI. K.P. PRADEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON 29/07/2009 DELIVERED THE FOLLOWING: WP(C).No. 19577 of 2007(E) APPENDIX PETITIONER'S EXHIBITS: P1 : TRUE EXTRACT OF THE LIST OF MEMBERS OF THE 4TH RESPONDENT ASSOCIATION MARKED AS EXT.P1 IN OP.11071/93 P2 : COPY OF THE LETTER DATED 6.4.2004 TO THE 1ST RESPONDENT ALONG WITH THE CERTIFICATE SENT BY PETITIONER. P3 : COPY OF THE REGD. LETTER DATED 26.10.2005 TO THE 1ST RESPONDENT P4 : COPY OF LETTER DATED 23.11.2005 SENT TO THE 1ST RESPONDENT BY THE ASSOCIATION. P5 : COPY OF THE REPLY DATED 31.3.2006 FROM THE 1ST RESPONDENT TO THE PETITIONR. P6 : COPY OF THE REGD. LETTER DATED 18.4.2006 FROM THE ASSOCIATION TO THE 1ST RESPONDENT. P7 : COPY OF LETTER DATED 17.7.2006 FROM THE DEPUTY COMMISSIONER, KANNUR TO THE PETITIONR. P8 : COPY OF LETTER DATED 25.7.2006 FROM THE PETITIONER TO THE 1ST RESPONDENT. P9 : COPY OF REPLY DATED 28.7.2006 FROM THE 1ST RESPONDENT TO THE PETITIONER. P10 : COPY OF THE LAWYER NOTICE DATED 23.10.2006 ISSUED ON BEHALF OF THE PETITIONER TO THE 1ST RESPONDENT. P11 : COPY OF THE REPLY DATED 30.10.2006 TO THE LAWYER NOTICE FROM THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: N I L // TRUE COPY // P.A. TO JUDGE. app/- C.K. ABDUL REHIM, J. ------------------------- W.P ( C) No.19577 of 2007 ------------------------------------ Dated this the 29th July, 2009 J U D G M E N T 1. The petitioner is aggrieved by rejection of application for refund of renewal registration fee paid under section 14(5) of the Kerala General Sales Tax Act, which provision was struck down by this court. Validity of section 14 (1), 14 (1A), and 14 (5) as it stood amended with effect from 1.4.1988, was subject matter of challenge before this court in a batch of writ petitions. The first one among those writ petitions, which were disposed of by a Division Bench of this court through a common judgment is OP.No.11071/1993, filed by Kerala Electrical Traders Association and others. The said judgment is reported as 'Kerala Electric Traders Association and another Vs. State of Kerala and others (2004) 12 KTR 114 (KER)'. This court while striking down validity of section 14(1A) and 14(5), in paragraph 14 of the said judgment observed as W.P ( C) No.19577 of 2007 2 follows:- “Only some assessees have approached this Court. Others were paying the amount without protest. Some petitioners approached the Court when the rate was increased substantially in 1993 and before that date they were paying renewal fee also as the rates were substantially increased in 1992. Some petitioners approached this Court in the year 2003 only and before, that they, were paying the fees voluntarily. Therefore, as far as refund of the fees paid is concerned it will be applicable only to the petitioners who approached the Court questioning correctness of levy that too in respect of fees collected for the period after they approached the Court”. 2. According to the petitioner he was a member of the Association which filed OP. No.11071/1993. It is stated that the petitioner's name was also included in the list of members appended as Ext.P1 in that writ petition. Extract of the list is produced as Ext.P1 in this writ petition. Further, the petitioner had produced a certificate from the said Association to the effect that the petitioner is a member of that Association. Pursuant to the above said judgment, the petitioner submitted Ext.P2 application W.P ( C) No.19577 of 2007 3 claiming refund of the registration fee paid during the years 1993-1994 to 2003-2004. Since there was no response, the petitioner submitted various representations and approached different authorities in the department. Ultimately his claim was rejected through Ext.P9 letter of the 1st respondent, stating the reason that refund of renewal fee paid under section 14(5) is not allowable since the petitioner was not a party in the writ petition filed by the Association. Thereafter, the petitioner caused Ext.P10 lawyer notice which was replied through Ext.P11, reiterating the very same reason for refusing refund. But it is stated in the reply notice that the 1st respondent is seeking clarification from the commissionerate with respect to the question as to whether the refund can be affected in the case of the petitioner. But nothing turned out till today. 3. Heard learned counsel for the petitioner and the Government Pleader. It is pointed out by the Government Pleader that in Kerala Electrical Traders Association case W.P ( C) No.19577 of 2007 4 (cited supra) the observations made by this court is to the effect that, only the dealers who have approached this court challenging the provisions alone are covered in the operative portion of the judgment, held as entitled for refund. Since the petitioner is a dealer who had not approached this court, he is not entitled to the benefit of the judgment, is the contention. 4. On a perusal of the judgment of Kerala Electrical Traders Association, it is clear that the 1st case dealt with by this court is one filed by the said Association. This court in that judgment has not specifically dealt with question as to whether the members of that Association is entitled for refund or not. But it is clear that the petitioners name was also shown as a member of that Association, in Ext.P1 list appended along with that writ petition. However, there is no serious dispute with respect to the fact that the petitioner is a member of the Association. Under such circumstances while taking a decision on the question of W.P ( C) No.19577 of 2007 5 refund, it cannot be said that the direction contained in that judgment is not applicable to a members of the 1st petitioner/Association in that case, especially because the finding that the “petitioners who have approached the court” are eligible for refund. Since the Association and certain members were parties in that case and since the relief sought for was on behalf of its members, I think it is not justified to deny benefit of the judgment to its members. There is no specific observation made by this court excluding the members of the 1st petitioner Association from the fruits of the judgment. 5. The learned Government Pleader pointed out that in a subsequent decision this court held that, with respect to a writ petition filed by any Associations, the individual members of such Associations will not be eligible for the benefit of such writ petitions, unless separate court fee is paid by each members. But on considering the direction in the judgment in the case of Kerala Electrical Traders W.P ( C) No.19577 of 2007 6 Association (cited supra) the said dictum cannot be applied, because the entitlement for refund is totally dependent upon the issue decided in that judgment. There is no specific exclusion made by this court making the members of the association as ineligible. Therefore it is not proper to hold that the members of the 1st petitioner/association are ineligible for the benefit granted by this court. 6. Under the above circumstances, I am inclined to hold that the petitioner is eligible for the benefit granted in the judgment of this court in Kerala Electric Traders Association and another Vs. State of Kerala and others (2004) 12 KTR 114 (KER). Therefore the 1st respondent is directed to make refund of the eligible amounts to the petitioner, treating him as entitled to the benefit of the above said judgment. A final decision in this regard shall be taken and refund of amount due should be affected as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. W.P ( C) No.19577 of 2007 7 7. It is mentioned by the learned Government Pleader that from the judgment of the Division Bench, the State Government have approached the Hon'ble Supreme Court and Civil Appeal No.2132/2008 and connected cases are pending disposal. Under such circumstances it is made clear that the refund if any made pursuant to the directions as above, will be subject to final result of the civil appeal pending before the Hon'ble Supreme court, and the respondents will be at liberty to realise the amount refunded in case the judgment of this court is reversed. C.K. ABDUL REHIM, JUDGE. app/-