IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WA.No. 2516 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.29246/2008 Dated 04/11/2008 .................... APPELLANT(S): -------------- MUTHOOT TECHNOPOLIS, COCHIN SPECIAL ECONOMIC ZONE (CSEZ), CSEZ POST, KAKKANAD 682 030, REPRESENTED BY ITS DIRRECTOR, THOMAS GEORGE MUTHOOT. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES AND COMMERCE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. 3. THE TAHSLDAR, KANAYANNUR TALUK, ERNAKULAM DIST. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.Raman & P.S.Gopinathan, JJ. --------------------------------------------------- W.A.No.2516 of 2008 -------------------------------------------------- Dated: February 27, 2009. JUDGMENT Raman, J. This writ appeal is directed against the judgment of the learned Single Judge dated 3.10.2008 in WP(c) 29246/2008. 2. The petitioner was assessed to building tax under the Kerala Building Tax Act by Ext.P11 order. He filed a writ petition challenging the assessment. That was dismissed by Ext.P6 judgment. Subsequently the review petition filed was also dismissed. Then he filed a writ appeal. By Ext.P8, a Division Bench disposed of the writ appeal. The Bench took the view that the matter ought not have been entertained and decided on merits, rather ought to have declined jurisdiction on the ground of alternate remedy. In W.A.No.2516 of 2008 -:2:- such circumstances, the judgment of the learned Single Judge was set aside and an opportunity to file an appeal against the assessment order was extended to the petitioner. We say "extended" to the petitioner because by the time the writ appeal came to be disposed of, the normal time for filing an appeal against the assessment order had elapsed and therefore this Court to enable the appellant to seek such appellate remedy, gave a further period of one month from the date of the judgment. The appellant thereafter invoked the appellate remedy in terms of Ext.P8 judgment and filed an appeal. So, however, he did not make any pre-deposit as contemplated by the provisions contained in sec.11(1) of the Kerala Building Tax Act. Therefore, the Appellate Authority directed the petitioner to produce evidence for payment of one-fourth of the amount of tax which became due by the time the appeal was preferred so as to entertain the appeal on merits. W.A.No.2516 of 2008 -:3:- Challenging the said order the petitioner preferred a writ petition before this Court. 3. The learned Single Judge after considering the rival submissions found that there is no merit in the writ petition and declined to consider the contention on merits, since the question of considering such contention in a writ petition was held to be wrong in the earlier judgment in Ext.P8. The petitioner, aggrieved by the dismissal of the writ petition, has filed this writ appeal. 4. We have heard both sides. 5. Learned Sr. Counsel Sri K.P.Dandapani, appearing on behalf of the appellant, contended that in a case like this where the very liability to pay building tax is very much disputed since the building constructed by him is on the Government land in a free zone area and after a prescribed period the building will become owned and possessed by the Government. According to him similar buildings are W.A.No.2516 of 2008 -:4:- already exempted by the Government and there is no reason why a discrimination could be meted out against the petitioner alone in the matter of payment of building tax. He also contended that when Ext.P8 judgment in the writ appeal permitted him to prefer an appeal within one month, and he having filed an appeal in terms thereof, and in the absence of anything in the writ appeal judgment requiring him to deposit an amount, the authorities ought not have insisted for a pre-deposit condition as in the other cases. Thus he draws a distinction between this and the other cases where normally the condition precedent for deposit of the amount is insisted by the section. 6. Though the argument is attractive, on a deeper consideration we find there is no merit in this contention. 7. This Court, as a matter of fact, granted a concession to the petitioner to prefer an appeal though by that time the very time for filing an appeal had elapsed. W.A.No.2516 of 2008 -:5:- Therefore a separate period of limitation was prescribed by this Court giving him one month's time to prefer an appeal. The other conditions are matters of statute and no court can dispense with the condition when the statute compels a pre- deposit of the amount in dispute for entertainment of appeal. In this case only one-fourth of the amount was required to be paid. Therefore, if the petitioner really wants a decision on the merits - may be he has got a stronger case - still, a decision on the merits of the contention raised by him can be passed only when an appeal is entertained. It is a condition precedent for entertaining the appeal that the deposit has to be made. Therefore, irrespective of the merits of the contention raised, deposit has to be made or else the appeal will be defective. Unlike the other statutes where there is a provision for dispensation of pre-deposit condition, there is no such similar provision contained in the present statute. In the absence of such a provision, we do W.A.No.2516 of 2008 -:6:- not find any infirmity or illegality in the order passed calling upon him to pay one-fourth of the amount and we are in complete agreement with the view taken by the learned Single Judge. We find no merit in this writ appeal. 8. Since the appellant has a claim for exemption and the only authority competent to consider the same is the Government as per sec.3(2) of the Building Tax Act and the petitioner/appellant having exercised to invoke such remedy from the Government, the said claim for exemption will be considered on merits and disposed of in accordance with law. Since the matter was pending before this Court in the writ appeal stage itself, we grant a stay against the recovery of the amount due as per the assessment order for a period of three weeks and it is open to the appellant to seek such interim relief from the Government and they will be governed by such orders that will be passed by the Government after the expiry of the period of three weeks. W.A.No.2516 of 2008 -:7:- If, however, he seeks adjudication on merits based on other grounds raised in the appeal, necessarily he is bound to comply with the statutory conditions of pre-deposit. The appeal thus fails except to the limited extent as indicated in the foregoing paragraph on the direction to dispose of the exemption claim pending before the Government. P.R.Raman, Judge. P.S.Gopinathan, Judge. mt/-