IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 OP.No. 23646 of 1999(M) ---------------------------------- PETITIONER(S): ----------------------- O.V.JAMEELA, W/O.T.P. UDMAN, KOTTUR DESOM, SREKANDAPURAM, DESOM, TALIPARAMBA TLUK. BY ADV. MR.C.KHALID MR.N.GOPINATHA PANICKER RESPONDENT(S): ------------------------- 1. THE TAHSILDAR, KERALA BUILDING TAX AUTHORITY, TALIPARAMBA. 2. THE REVENUE DIVISIONAL OFFICER, THALASSERY. 3. THE SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA (TAXES H.DIVISION), THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER (TAXES) MR.K.P.PRADEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/03/2009, ALONG WITH OP NO. 27638 OF 1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 23646/1999-M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.D4/12010/98 DATED 15/02/1999. EXT.P1(a): COPY OF THE DEMAND NOTICE NO.D4/12010/98 DATED 15/02/1999. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 23646 & 27638 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 4th March, 2009. J U D G M E N T In these two original petitions, the contentions raised by the petitioners are identical to the contentions raised in O.P.No. 17618/1999. That original petition was disposed of by me by judgment dated 2-12-2005, which judgment reads as follows: “This Original Petition is filed challenging Ext. P1 order passed by the first respondent assessing the petitioner's building to building tax under the Kerala Building Tax Act, 1975. The main contention of the petitioner is that the Kerala building Tax Act, 1975 as amended by Act 3 of 1992 and Act 13 of 1993 is unconstitutional and violative of Article 14 of the Constitution. I find that the constitutional validity of the Act has been upheld by Supreme Court in D.G.Gouse and Co. (Agents) Private Ltd. v. State of Kerala, reported in AIR 1980 SC 271. The petitioner would argue that although the validity of Act has been upheld by the said judgment, in view of the subsequent amendments the defects earlier noted by the Supreme Court in the earlier Act of 1961, in the decision of State of Kerala v. Haji Kutty & others, reported in 1968 KLT 649 SC has been brought back by the Government and hence the amended Act is unconstitutional for the same reasons on which the earlier Act was struck down. I am not impressed with the said argument. In so far as the Act has been upheld by the Supreme Court and has stood the test of time, I am neither inclined nor competent to go into the question of validity of the Act in these proceedings . 2. The petitioner further attacks Ext. P1 on its merit also. However, I find that the petitioner has got an alternate remedy by way of filing an appeal under Section 7 of the Kerala Building Tax Act, 1975 in which he can effectively challenge the order on merits which he has not exhausted. Further resolution of the disputes raised by the petitioner involves ascertainment of facts on evidence which can be done only in an appeal. 3. In the above circumstances, I dismiss the original petition without prejudice to the right of the petitioner to challenge Ext. P1 in a properly constituted appeal under Section 11 of the Kerala Building Tax act, 1975. It would be open to the petitioner to seek condonation of delay in filing such appeal if so filed, on the ground that he was bonafide prosecuting the original petition against Ext. P1 order.” That judgment had not been taken in appeal. That being so, it has O.P. Nos 23646 & 27638/99. -: 2 :- become final. In the above circumstances, these two original petitions, which also raise the same issues, are disposed of in terms of the said judgment. Sd/- S. Siri Jagan, Judge. Tds/