IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 WP(C).No. 29246 of 2008(F) -------------------------- PETITIONER(S): --------------------- MUTHOOT TECHNOPOLIS, COCHIN SPECIAL ECONOMIC ZONE (CSEZ), CSEZ POST, KAKKANAD 6892030, REPRESENTED BY ITS DIRECTOR, THOMAS GEORGE MUTHOOT. BY ADV. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES AND COMMERCE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. 3. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY GOVT. PLEADER SRI. BEJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.29246 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of October, 2008 JUDGMENT Prayers in the writ petition are as follows: “(i) declare that the petitioner is not liable to make payment of the Building Tax, as provided under the proviso to Section 11 (1) of the Kerala Building Tax Act, 1975, as a condition precedent to entertain Ext.P12 appeal filed by the petitioner before the 2nd respondent. (ii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to consider and dispose of Ext.P12 appeal filed by the petitioner without insisting for any payment as provided under the proviso to Section 11(1) of the Kerala Building Tax Act. (iii) stay all proceedings including recovery of the amount as per Exts.P11 and P11(a) until the 2nd respondent disposes off Ext.P12 appeal.” 2. Petitioner came to be assessed to building tax under the Kerala Building Tax Act vide Ext.P11 order dated 30.5.2008. It was accompanied by the order of assessment relatable to Rule (8) of the Building Tax Rules. Ext.P11(a) is the notice of demand in Form VI relatable to Rule (9) of the Building Tax Rules. Petitioner has filed a writ WPC.29246/2008. 2 petition against the said orders. The writ petition came to be dismissed by Ext.P6 judgment by a learned Single Judge of this court. Even though a review petition was filed, the review petition also came to be dismissed. It is the case of the petitioner that he preferred appeals against Ext.P6 judgment and Ext.P7 order. By Ext.P8 the Division Bench took the view that the learned Single Judge ought not have entertained the matter and decided the matter on merits and the writ petition ought to have been dismissed in view of the alternate remedy. Thereafter the following direction was issued: “In these circumstances, we set aside the judgment including recovery and allow the petitioner to file an appeal against the assessment and impugned orders. If an appeal is filed within one month from today, the same shall be considered in accordance with law without looking into the aspects of the time bar.” Petitioner accordingly preferred Ext.P12 appeal. Thereafter petitioner has been issued with Ext.P13 dated 3.9.2008. By Ext.P13 the petitioner was directed to furnish the chelan receipt in original showing the remittance of the first instalment of building tax within two weeks from the date of receipt of the letter, failing which appeal cannot be considered. 3. I heard learned Senior Counsel appearing on behalf of the WPC.29246/2008. 3 petitioner Sri.K.P. Dandapani and the learned Government Pleader. 4. Learned counsel for the petitioner would submit that having regard to Ext.P8 judgment, there is no basis for demanding payment of tax as done in Ext.P13. It is further pointed out that this is a case where the matter ought to have been referred to the Government under Section 3(2) of the Building Tax Act and this is a case where there is no inspection done by the authorities before the assessment is completed. It is further pointed out that petitioner is actually not the owner of the building and also it is pointed out that the building is situated in special economic zone and in respect of no other building situate therein there is assessment. He would further submit that actually a perusal of Ext.P8 judgment would show that the Division Bench had quashed recovery notice Ext.P11(a). 5. Per contra, learned Government Pleader would point out that all that is demanded is the payment of the first instalment under Ext.P13 and also all that is directed under Ext.P8 is that if an appeal is filed within one month from the date of Ext.P8, the same shall be considered in accordance with law without looking into the aspects of time bar. 6. I do not see any merit in the contention of the petitioner. The proviso to Section 11 of the Building Tax Act provides that no appeal shall lie unless the building tax has been paid. A Division Bench of this WPC.29246/2008. 4 court in the decision reported in Francis v. Revenue Divisional Officer (1989 (1) K.L.T. 550) has taken the view that if the appellant pays the first instalment, it could be said that the tax has been paid for maintaining the appeal under the proviso to Section 11 of the Act. It is in the light of the proviso to Section 11(1), that Ext.P13 has been issued. In my view the effect of the Division Bench decision, Ext.P8, cannot be that the Division Bench has permitted the filing of an appeal in violation of the law. The Division Bench only relaxed the obstacle in regard to bar of limitation and directed that the appeal should be considered if filed within one month. It may be true that the Division Bench quashed recovery notice Ext.P11(a). It is inconceivable that the Division Bench has interfered with the assessment. The assessment remain in tact and if the assessment did not remain in tact, it is further inconceivable as to how the Division Bench could have permitted the petitioner to prefer appeal. Rule 8 of the Building Tax Rules provides that there must be an assessment in Form V and the appeal is also provided in Rule 10 against the assessment. Ext.P11(a) at best is a notice of demand in Form VI. Even if the said demand is quashed, that would not and cannot mean that the petitioner is freed from the statutory obligation to pay the first instalment of tax in terms of the assessment order and also the demand under Ext.P11. Any other interpretation would be in the teeth of WPC.29246/2008. 5 the mandate of the proviso to Section 11 of the Act. Having regard to the litigation which culminated in Ext.P8 judgment and the terms of Ext.P8 judgment, it may not be open for me to consider the contentions of the learned Senior Counsel pertaining to the merits of the matter and I cannot possibly be called upon to do the same having regard to the specific prayers in the writ petition as also the fact that by Ext.P8 petitioner was relegated to prefer an appeal. In such circumstances, I see no merit in the writ petition. Accordingly, it is dismissed. However, learned counsel for the petitioner submits that two weeks time may be granted for remitting the amount. I feel that the said request can be granted. Accordingly, two weeks time from today is granted for remitting the amount as demanded in Ext.P13. (K.M. JOSEPH, JUDGE) sb