IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 WP(C).No. 5869 of 2005(W) ------------------------- PETITIONER(S): --------------- 1. ALL INDIA DEFENCE CIVILIAN CLERKS' ASSOCIATIONS, REPRESENTED BY ITS BRANCH SECRETARY, K.G.BIJI KUMAR, DSC RECORDS, MILL ROAD, CANANNORE-13. 2. NIRMAL JOSEPH, LOWER DIVISION CLERK, DSC RECORDS, MILL ROAD, CANANNORE-13. BY ADV. SRI.C.S.GOPALAKRISHNAN NAIR RESPONDENT(S): --------------- 1. THE CANANNORE, CANTONMENT BOARD, REPRESENTED BY ITS PRESIDENT, CANANNORE-13. 2. EXECUTIVE OFFICER, CANTONMENT BOARD, CANANNORE-13. 3. CHIEF RECORDS OFFICER, DEFENCE SECURITY CORPS RECORDS, MILL ROAD, CANANNORE-13. 4. UNION OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF DEFENCE, SOUTH BOLCK, NEW DELHI-1. ADV. SMT.DEEPSUR D.JAYAN, ADDL.CGSC SRI.M.RAMESH CHANDER SMT.A.SREEKALA, CGC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 5869/2005 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE JUDGMENT IN W.P.No. 945/1998, 2292/1989 AND 2814/88. P2. COPY OF THE JUDGMENT IN C.M.A.NO.43/97 TO 41/97 DTD.20.12.03. P3. COPY OF THE CIRCULAR DTD.5.5.03 BY THE CGDA. P4. COPY OF THE PETITION DTD.20.10.04. RESPONDENT(S)' EXHIBITS: R2A. COPY OF THE JUDGMENT IN W.P.(C).No. 34511/2004 OF THIS COURT. R3. COPY OF THE OFFICE MEMORANDUM DTD.20.11.75 BY THE MINISTRY OF DEFENCE. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 5869 of 2005 ================== Dated this the 19th day of August, 2011 J U D G M E N T The 1st petitioner claims to be an association of Defence Civilian Clerks based in the cantonment area in Kannur. The 2nd petitioner claims to be a member of the 1st petitioner association. They are in the office of the DSC Records under the control of the Cannanore Cantonment Board. Under Section 60 of the Cantonment Act, 1924, the Cantonment Board may by notification in the official gazette impose in any cantonment area any tax which, under any enactment for the time being in force, may be imposed in any municipality in the State, wherein such cantonment is situated. It appears that the 1st respondent has issued such a notification imposing profession tax on persons employed within the cantonment area. The petitioners' contention is that the civilian clerks are not liable to pay profession tax in view of the exemption available to army personnel. According to them, they also come within the purview of the Army Act by virtue of Section 2(1)(i) of the Army Act, 1950. The petitioners claim that the persons covered by the Army Act are entitled to exemption from profession tax, although the petitioners have not stated as to under which provision of law, they are entitled to such exemption. They say that the issue as to whether the persons like the petitioners are eligible for exemption from payment of profession tax is covered by the w.p.c.5869/05 2 decision of the Bombay High Court in Raut v. State of Maharashtra [1991 LAB IC 891] as also the decision of the High Court of Karnataka in Writ Appeal No.404/2006. The petitioners, therefore, seek the following reliefs: “i) issue a writ of mandamus or other appropriate writ, direction or order directing the 1st and 2nd respondents not to demand profession tax from the Defence Civilian Employees working in DSC Records, Cannanore. ii) issue a writ of mandamus or other appropriate writ, direction or order directing the 1st and 2nd respondents to refund the profession tax collected from the Defence Civilian Employees working in DSC Records, Cannanore with in a stipulated period.” 2. The 2nd respondent has filed a counter affidavit, wherein they would refute the claim of the petitioners. In the same, they contend that under Section 84 of the Cantonments Act, an appeal would lie to the District Court as against the assessment or levy or any tax under the Act. Therefore, according to the 2nd respondent, the petitioners should approach the District Court under Section 84 of the Cantonments Act. It is further submitted that similarly placed persons had already filed C.M.A.Nos.43/97 to 61/97, which were allowed originally by the District Court. The order in the same was challenged in W.P.(C).No. 34511/2004. By Ext.R2(a) judgment, a learned Judge of this Court has set aside the order and remanded the matter to the District Court for fresh disposal. 3. In view of the above facts, I am of opinion that the w.p.c.5869/05 3 members of the 1st petitioner or any other persons aggrieved by recovery of profession tax from them should first file appeal before the District Court under Section 84 of the Cantonments Act as done by others as is evident from Ext.R2(a) judgment. Therefore, I relegate the members of the 1st petitioner association and the 2nd petitioner to their remedy by way of an appeal before the District Court under Section 84 of the Cantonments Act. In this connection, I may also observe that liability to pay profession tax being personal, the individuals, who are aggrieved by the levy of profession tax should file the appeal and not the association. In view of fact that this writ petition was pending before this Court from 2005 onwards, if any of the members of the 1st petitioner or the 2nd petitioner himself files an appeal before the District Court under Section 84 of the Act within one month from today, the same shall be entertained as an appeal filed within time and disposed of accordingly in accordance with law, along with C.M.A.Nos.43/97 to 62/97, if they are still pending. Otherwise the same shall be disposed of independently. I note that subsequently the Act has been amended and the appeal provision is now contained in Section 93. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge