IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 WP(C).No. 11335 of 2011(N) -------------------------- PETITIONER(S): ----------------------- MELETHODI PAREETH, AGED 51 YEARS S/O.LATE M MOHAMMED, MELETHODI HOUSE,IRINGALLOOR PO, MALAPPURAM DISTRICT , KERALA, REPRESENTED BY HIS P/A MR.SAMEER MELETHODI, AGED 35 YEARS, S/O.LAE M.MOHAMMED, SAMEER MANZIL, IRINGALLOOR PO MALAPPURAM DISTRICT. BY ADVS. SRI.C.A.MAJEED SRI.K.H.ASIF SRI. FAIZAL R. RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE SPECIAL CELL,DEPARTMENT GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695001 2. THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT - 676505 3. THE REVENUE DIVISIONAL OFFICER TIRUR, MALAPPURAM DT - 676101 4. THE TAHSILDAR, THIRURANGADI, MALAPPURAM DISTRICT -676306 5. THE VILLAGE OFFICER OORAKAM VILLAGE, THIRURANGADI TALUK, MALAPPURAM DT - 676306 BY SR. GOVT. PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11335 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PHOTOCOPY OF THE RETURN FILED IN RESPECT OF THE BUILDING OF THE PETITIONER. EXT.P2 : PHOTOCOPY OF THE PLAN OF THE BUILDING OF THE PETITIONER. EXT.P3 : PHOTOCOPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT. EXT.P4 : PHOTOCOPY OF THE ORDER DATED 14.8.2001. EXT.P5 : PHOTOCOPY OF THE NOTICE DATED 19.9.2002 ISSUED BY THE 4TH RESPONDENT. EXT.P6 : PHOTOCOPY OF THE ORDER DATED 25.3.2003 ISSUED BY THE 4TH RESPONDENT. EXT.P7 : PHOTOCOPY OF THE APPEAL MEMORANDUM DATED 25.3.2008 SUBMITTED BEFORE THE 3RD RESPONDENT. EXT.P8 : PHOTOCOPY OF THE ORDER OF THE 3RD RESPONDENT. EXT.P9 : PHOTOCOPY OF THE PETITION DATAED 29.7.2008. EXT.P10 : PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT DATED 16.8.2008. EXT.P11 : PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P12 : PHOTOCOPY OF THE DIRECTION DATED 9.9.2008 ISSUED BY THE 1ST RESPONDENT. EXT.P13 : PHOTOCOPY OF THE SAID INTIMATION DATED 22.6.2010. EXT.P14 : PHOTOCOPY OF THE STATEMENT DATED 12.7.2010 FILED BEFORE THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Kp S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 11335 OF 2011 ------------------------------------------------- DATED THIS THE 8th DAY OF JULY, 2011 J U D G M E N T In respect of building owned by the petitioner, after considering the contentions of the petitioner building tax was assessed and along with the same in view of the fact that plinth area exceeds the prescribed plinth area, petitioner was directed to pay luxury tax also. In respect of demand of luxury tax, the petitioner filed an appeal which was dismissed by Ext.P8 order on the ground that it is filed beyond the period of limitation prescribed. Petitioner thereafter filed Ext.P11 representation before the Government. In the writ petition, the petitioner seeks the following reliefs. “(i) Issue a writ of mandamus or any other writ, order or direction calling for the records leading to Exts.P1 to P14 and direct the 1st respondent to dispose of Ext.P11 representation filed by the petitioner immediately; (ii) declare that, insisting of payment towards Luxury Tax from the petitioner as illegal.” I have heard learned Government Pleader also. In view of the Division Bench decision in Assistant Commissioner of W.P.(C) No.11335/2011 -2- Central Excise V. Krishna Poduval (2005 (4) KLT 947), the petitioner cannot now re-agitate the issue in respect of period for which the petitioner's appeal has been rejected by Ext.P8 order. The petitioner contends that in view of the judgment of this Court in Mohamad Sadik V. Tahsildar (2006 (3) KLT 271), even if the petitioner cannot challenge the demand for earlier periods, the petitioner can challenge the demand for subsequent years. The said judgment reads as follows: “The petitioner has approached this Court challenging Ext.P3 order of the first respondent Tahsildar, levying building tax under the Kerala Building Tax Act, 1975. The petitioner submits, he has already paid the amount due under Ext.P3. The said order also imposes luxury tax of an amount of Rs.2,000/- per year, under S.5A of the above said Act. Since the challenge against Ext.P3 is highly belated, it is repelled. But, the luxury tax has to be paid every year. So, even assuming, he has suffered the payment of luxury tax for earlier years, he is entitled to challenge the order of demand made as per Ext.P6. It is declared so. The Petitioner may invoke the appellate remedy against the demand of luxury tax for the year 2005-06, made as per Ext.P6. In that event, the appellate authority shall dispose of the same, in accordance with law, after affording an opportunity of being heard to the petitioner. The petitioner may pay the amount under protest. In case the appeal is allowed, the amount paid shall be refunded to him. It is clarified that the finding of the Tahsildar, concerning the plinth area of the W.P.(C) No.11335/2011 -3- building contained in Ext.P3, will not operate as res judicata. The petitioner will be free to adduce fresh evidence and establish the correct plinth area before the appellate authority. The appellate authority shall consider his contentions, uninfluenced by the finding concerning the same in Ext.P3. The writ petition is disposed of as above.” In the above circumstances while dismissing the writ petition, I direct that if the petitioner files an appeal against future demands the same shall be considered in accordance with law. Sd/- S. SIRI JAGAN, JUDGE. AMG True copy P.A to Judge