IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 11208 of 2010(A) -------------------------- PETITIONER: --------------- C.K. JACOB, PROPRIETOR, C.K. JACOB AND COMPANY, PARK LANE, KOTTAYAM, CHIRAYIL HOUSE, VELOOR, KOTTAYAM. BY ADV. SRI.K.M.VARGHESE RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY COMMISSIONER, COMMERCIAL TAXES, OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM. 2. SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOTTAYAM. 3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOTTAYAM. 4. SALES TAX OFFICER, SALES TAX OFFICE, II CIRCLE, KOTTAYAM. 5. THOMAS VARGHESE, THENGADAYIL, ROSE VILLA, VAZHOOR EAST, KOTTAYAM. BY GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.11208 of 2010-A ---------------------------- Dated this the 5th day of April, 2010. J U D G M E N T Can the 'financial difficulty' of the litigant be an adequate reason, for not satisfying the 'Additional Court Fee' prescribed under the relevant provisions of law to entertain the statutory appeal; for availing the discretionary jurisdiction of this Court under Article 226 of the Constitution of India? That too, when the earlier attempt made by the very same petitioner in this regard has already been turned down by this Court declining interference in the Writ Petition, which admittedly has become final on dismissal of the Writ Appeal. 2. With regard to the sequence of events, case of the petitioner is that, he was engaged in some petty rubber trade dealing with raw rubber and when the respondents completed the assessment without any regard to the actual facts and figures and the mandatory requirements under the statute, the petitioner approached this Court by filing W.P.(C) No.38448 of 2003, which led to Ext.P3 judgment. As per Ext.P3, the assessment orders were set W.P(C) No.11208 of 2010-A 2 aside and the departmental authorities were directed to furnish copies of the relevant proceedings first and then finalise the assessment. 3. Pursuant to Ext.P3, provisional assessment was made as borne by Ext.P7 and P8, in respect of which, the petitioner submitted statement of objections, raising many a contention. Allegedly, without properly appreciating the objections raised by the petitioner, the final assessment orders were passed, as borne by Ext.P9 and P10; aggrieved of which, the petitioner preferred statutory appeals before the third respondent; however, without remitting the additional Court fee of 0.5% (towards Kerala Legal Benefit Fund), under which circumstances, the appeals were rejected by the third respondent as per Ext.P12 order. The petitioner preferred second appeal before the second respondent/Tribunal, challenging the course and procedure pursued by the third respondent. The petitioner also filed Exts.P15 and P16 applications for exemption from the requirement to satisfy the additional Court fee. Taking note of the facts and circumstances, the Tribunal observed that there was no provision in the statute to provide such exemption and accordingly, the applications filed in this regard W.P(C) No.11208 of 2010-A 3 were rejected as per a common order (Ext.P17). As a natural consequence, the appeals were found as defective and were rejected. 4. Challenging the impugned orders passed by the appellate authority, the petitioner had approached this Court by filing W.P.(C) No.14763 of 2009, contending that, the provisions under Order XLIV and Order XXXIII of the Code of Civil Procedure had to be made applicable to the proceedings before the Tribunal as well, for enabling the petitioner to have contested the matter in 'forma pauperis'. Reliance was also placed on the decision rendered by the Apex Court in State of Hariyana V. Smt.Darsana Devi and others (AIR 1979 SC 855). 5. After considering the various contentions raised by the petitioner, it was held by this Court that the challenge raised against the statutory prescription to remit the additional Court fee was quite wrong and misconceived, in view of the declaration of law by a Single Bench of this Court as per the decision in Ismail V. State of Kerala (2005(3) KLT 1052) and affirmed by the Division Bench as per the decision rendered in Chackolas Spinning and Weaving Mills V. State of Kerala (2006(1) KLT 989) . With regard to the claim for W.P(C) No.11208 of 2010-A 4 entertaining the matter, applying the provisions under Order XLIV and Order XXXIII of the Code of Civil Procedure; it was held by this Court that they were not applicable to the case. The scope of the decision of the Apex Court in State of Hariyana V. Smt. Darsana Devi and others (AIR 1979 SC 855) (pertaining to the rights and liberties in respect of an Award passed by the Motor Accidents Claims Tribunal under the Motor Vehicles Act) was very much explained by this Court and held as not applicable. Accordingly, interference was declined vide Ext.P18 judgment. Being aggrieved of Ext.P18 verdict, the petitioner preferred W.A.No.2381 of 2009. After considering the case projected by the petitioner/appellant, Ext.P18 judgment was confirmed, dismissing the appeal as per Ext.P19; whereby the matter has become final. The petitioner has now approached this Court again, challenging the very same proceedings (Ext.P9 and P10), raising the very same grounds and also the inability of the petitioner to satisfy the additional Court fee to have had the statutory appeals entertained and in turn, seeking the merits of the case to be considered and decided in the Writ Petition. 6. The learned counsel for the petitioner submits that the W.P(C) No.11208 of 2010-A 5 dictum in Balakrishnan Nair V. State of Kerala (2007(2) KLT SN 16) (Case No.24) rendered by the Division Bench of this Court is applicable to the case in hand. Going by the said decision, it is seen that the issue considered therein was whether the revision petition filed under Section 41 of the KGST Act was maintainable or not, if the appeal preferred before the Tribunal was dismissed on the ground of delay in filing the same. After considering the relevant provisions of law, it was observed by this Court that, on dismissal of the appeals refusing to entertain the same beyond the period of limitation, by virtue of 'proviso' to Section 39(1) of the KGST Act; the order declining to entertain the appeals by the Tribunal was not revisable under Section 79(1) of the KGST Act. However, one sentence was also added in the following manner. “It will be open to challenge orders 'probably' in the Writ Petition”. The factual position as narrated in this case is entirely different from the factual circumstances dealt with in the above case. That apart, absolutely no law was declared that the petitioner therein was having the right of remedy under Article 226 and the observation was only with regard to the probability of challenge by W.P(C) No.11208 of 2010-A 6 way of Writ Petition; in the particular circumstances. 7. The learned counsel for the petitioner also placed reliance on the dictum laid by the Apex Court in M/s.Baburam V. Zilaparashad (AIR 1969 SC 556) contending that the alternate remedy is not a bar to entertain the Writ Petition under Article 226. Reference is also made to the decision in Harbanslal Sahnia V. Indian Oil Corp. Ltd. (2003 (2) SCC 107), holding that interference is very much possible, on satisfying the 'three' conditions specified therein. 8. It does not require any second thought for this Court to hold that alternate remedy is no bar to entertain the Writ Petition; which is a settled position. The only question is whether the 'financial difficulty' of the petitioner is a ground to exempt the petitioner from satisfying the statutory requirement of paying the additional Court fee for entertaining the appeal and to have the merits of the case considered, invoking the discretionary jurisdiction under Article 226 of the Constitution of India. No such proposition has been made by the Hon’ble Supreme Court in the above decision and no other decision in this regard has been brought to the notice of this Court. Ext.P15 and P16 applications preferred by the W.P(C) No.11208 of 2010-A 7 petitioner for exempting from such liability were rejected by the Tribunal as per Ext.P17, holding that there was no provision to provide such exemption. The correctness and sustainability of the impugned orders passed by the third and second respondents was subjected to challenge before this Court, leading to Ext.P18 judgment declining interference in this Writ Petition; which has been confirmed by the Division Bench by passing Ext.P19; dismissing the Writ Appeal. This being the position, the attempt of the petitioner to reconsider the matter further, by raising the very same grounds of challenge through a fresh Writ Petition, cannot but be described as an abuse of the process of Court. In the above circumstances, no interference is warranted. The Writ Petition is dismissed with cost of Rs.5,000/-. The Registry shall forward a copy of this verdict to the Principal Secretary, Department of Finance, Ministry of Revenue for taking further steps for realisation of the cost ordered as well. P.R.RAMACHANDRA MENON JUDGE ab