IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WA.No. 49 of 2011 -------------------- AGAINST THE ORDER IN WPC.16470/2010 Dated 10/12/2010 .................... APPELLANT/PETITIONER: --------------------------- THE KERALA ADVERTISING INDUSTIRES ASSOCIATION, ERNAKULAM DISTRICT UNIT,4TH FLOOR MATHEWSONS TRADE CENTRE,KALOOR,KOCHI-682017 A SOCIETY REGISTRED UNDER THE TRAVANCORE-COCHIN LITERARY, SCIENTIFIC & CHARITABLE SOCIETIES REGISTRATION ACT,REP.BY ITS PRESENT SECRETARY K.VIJAYAKUMAR BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE ADV. SRI.K.PAUL KURIAKOSE RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE SECRETARY, CORPORATION OF COCHIN, COCHIN-682011 2. THE SECRETARY, ALUVA MUNICIPALITY, ALUVA-683101 3. THE SECRETARY, LOCAL SELF-GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM-695 4. PAUL JOSEPH, VALIYAPARAMBIL HOUSE, PULIKKAPULLY, PACALAM P.O., N.K.SREEDHARAN ROAD,KATTUNGAL TEMPLE EAST KOCHI-682012 R1 BY STANDING COUNEL SRI.S.RAMESH BABU R2 BY ADV.SRI.V.M.KURIAN R3 BY SR.GOVERNMENT PLEADER SRI.BENNY GERVACIS R4 BY SRI.GEORGE THOMAS MEVADA, SENIOR ADVOCATE ADV.SRI.BABU PAUL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 49 of 2011 ------------------------------------------ Dated this the 17th day of January, 2011 JUDGMENT J.Chelameswar, C.J. Aggrieved by an interim order dated 10th December, 2010 in W.P.(C) No. 16470 of 2010, the applicant who is the writ petitioner filed the present writ appeal. 2. The appellant/petitioner is an association registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act. It is an association of the persons engaged in the business of advertisement. 3. When the respondents initiated proceedings for recovery of certain amounts under the head 'permit fee' the above mentioned writ petition came to be filed questioning the legality of such a levy and collection on the ground that such a levy and collection of permit fee is not authorised by any enactment and therefore without the authority of the law. By an interim order dated 10.11.2010 in the said writ petition, it appears, a learned Judge of this Court directed that there shall be an interim order as prayed for. It may be mentioned here that the interim prayer in the writ petition is as follows: W.A. No.49 of 2011 - 2 - “It is prayed that this Hon'ble Court may be pleased to stay all further proceedings of the respondents 1 and 2 to collect permit fee and the measures for enforcement of such collection in respect of structures erected for displaying advertisements or removal of the same, pending final disposal of the above Writ Petition.” 4. The operation of the order dated 10.11.2010 was limited for a period of one month. Therefore, when the matter was again listed on 10.12.2010 the order was extended by a further period of three months. The relevant portion of the order reads as follows: “In such circumstances, I direct that the interim order passed by me on 10.11.2010 for a period of one month shall stand extended by a further period of three months from today only in the event of the members of the petitioner association paying the advertisement tax at the applicable rate within 15 days from today and producing the proof of such payment before the Secretary of Cochin Corporation. It is clarified that in the event of the members of the petitioner association failing to pay the advertisement tax within the stipulated period, it will be open to the Secretary of the local authority to treat such advertisements as unauthorised advertisements and take steps to remove them.” 5. It appears that the State of Kerala by a notification dated 2nd May, 2009 revised the advertisement tax leviable under Section 271 of the Kerala Municipality Act, 1994. So when the matter was taken on W.A. No.49 of 2011 - 3 - 10.12.2010 it was brought to the notice of the learned Judge who heard the matter that the members of the petitioner association are also not paying the advertisement tax apart from the permit fee which is the subject matter of dispute in the writ petition. It was in the above circumstances that the above extracted order came to be passed by the learned Judge. The appellant/petitioner accepted the order. However, the appellant filed an application, I.A.No.17810 of 2010, seeking extension of the time of 15 days stipulated in the order dated 10th December, 2010 for payment of the advertisement tax. The learned Judge by order dated 23rd December, 2010 granted such an extension. The relevant portion of the said order reads as follows: “Having regard to the submissions made at the Bar and the inability expressed by the members of the petitioner association to pay the arrear of advertisement tax in lump, I am of the opinion that the time fixed for payment of arrears of advertisement tax at the applicable rate can be extended by a further period of 15 days. I accordingly allow this application and enlarge the time limit fixed by this Court on 10.12.2010 for payment of advertisement tax at the applicable rate by a further period of 15 days from 25.12.2010, subject to the condition that no further extension of time will be granted.” 6. After having secured the extension, now the appellant seeks to challenge the correctness of the order dated 10th December, 2010 by W.A. No.49 of 2011 - 4 - which the interim order initially granted on 10.11.2010 was extended by a further period of three months subject to the condition that the members of the petitioner pay the enhanced advertisement tax within a period of 15 days from the date of the order. 7. The learned senior counsel for the appellant Sri.T.Krishnan Unni argued that the subject matter of the writ petition is the legality of the collection of permit fee and the advertisement tax is a distinct and different impost which was nothing to do with the cause of action in the writ petition and therefore the learned Judge was not justified in imposing a condition by the order dated 10th December, 2010 directing the members of the appellant to make payment of the advertisement tax within a period of 15 days. 8. In our view, the issue is not whether the learned Judge could have imposed such a condition which is unconnected with the subject matter of dispute in the writ petition. The appellant by filing a subsequent application in I.A.No.17810 of 2010 acquiesced in the said order and sought an extension of the time for complying with the said order. In fact, the prayer in I.A.No.17810 of 2010 is as follows: “For the reason stated in the affidavit filed herewith, it is prayed that this Hon'ble Court may be pleased to grant two months time to the members of the petitioner enlarging the period of 15 days to pay the advertisement tax stipulated in W.A. No.49 of 2011 - 5 - the interim conditional order dated 10.12.2010, in the above Writ Petition, for the purpose of paying the advertisement tax as per Exhibit P-5 or to challenge Exhibit P-5 in accordance with law, in the interests of justice.” 9. In the circumstances, we do not see any reason to permit the appellant to turn back and challenge the correctness of the condition imposed by the order dated 10.12.2010. The writ appeal is dismissed at the admission stage. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns