Kerala High Court · 2009

P.R.Raman & P.S.Gopinathan, JJ.---------------------------------------------------W.A.No.2516 of 2008--------------------------------------------------Dated: February 27, 2009.JUDGMENTRaman, J.This writ appeal is directed against the judgment of thelearned Single Judge dated 3.10.2008 in WP(c)29246/2008.2. The petitioner was assessed to building tax underthe Kerala Building Tax Act by Ext.P11 order. He filed a writpetition challenging the assessment. That was dismissedby Ext.P6 judgment. Subsequently the review petition filedwas also dismissed. Then he filed a writ appeal. By Ext.P8,a Division Bench disposed of the writ appeal. The Benchtook the view that the matter ought not have beenentertained and decided on merits, rather ought to havedeclined jurisdiction on the ground of alternate remedy. In W.A.No.2516 of 2008-:2:-such circumstances, the judgment of the learned SingleJudge was set aside and an opportunity to file an appealagainst the assessment order was extended to thepetitioner. We say "extended" to the petitioner because bythe time the writ appeal came to be disposed of, the normaltime for filing an appeal against the assessment order hadelapsed and therefore this Court to enable the appellant toseek such appellate remedy, gave a further period of onemonth from the date of the judgment. The appellantthereafter invoked the appellate remedy in terms of Ext.P8judgment and filed an appeal. So, however, he did notmake any pre-deposit as contemplated by the provisionscontained in sec.11(1) of the Kerala Building Tax Act.Therefore, the Appellate Authority directed the petitioner toproduce evidence for payment of one-fourth of the amountof tax which became due by the time the appeal waspreferred so as to entertain the appeal on merits. W.A.No.2516 of 2008-:3:-Challenging the said order the petitioner preferred a writpetition before this Court.3. The learned Single Judge after considering the rivalsubmissions found that there is no merit in the writ petitionand declined to consider the contention on merits, since thequestion of considering such contention in a writ petitionwas held to be wrong in the earlier judgment in Ext.P8. Thepetitioner, aggrieved by the dismissal of the writ petition,has filed this writ appeal.4. We have heard both sides.5. Learned Sr. Counsel Sri K.P.Dandapani, appearingon behalf of the appellant, contended that in a case like thiswhere the very liability to pay building tax is very muchdisputed since the building constructed by him is on theGovernment land in a free zone area and after a prescribedperiod the building will become owned and possessed bythe Government. According to him similar buildings are W.A.No.2516 of 2008-:4:-already exempted by the Government and there is noreason why a discrimination could be meted out against thepetitioner alone in the matter of payment of building tax.He also contended that when Ext.P8 judgment in the writappeal permitted him to prefer an appeal within one month,and he having filed an appeal in terms thereof, and in theabsence of anything in the writ appeal judgment requiringhim to deposit an amount, the authorities ought not haveinsisted for a pre-deposit condition as in the other cases.Thus he draws a distinction between this and the othercases where normally the condition precedent for deposit ofthe amount is insisted by the section.6. Though the argument is attractive, on a deeperconsideration we find there is no merit in this contention.7. This Court, as a matter of fact, granted aconcession to the petitioner to prefer an appeal though bythat time the very time for filing an appeal had elapsed. W.A.No.2516 of 2008-:5:-Therefore a separate period of limitation was prescribed bythis Court giving him one month's time to prefer an appeal.The other conditions are matters of statute and no court candispense with the condition when the statute compels a pre-deposit of the amount in dispute for entertainment ofappeal. In this case only one-fourth of the amount wasrequired to be paid. Therefore, if the petitioner really wantsa decision on the merits - may be he has got a strongercase - still, a decision on the merits of the contention raisedby him can be passed only when an appeal is entertained.It is a condition precedent for entertaining the appeal thatthe deposit has to be made. Therefore, irrespective of themerits of the contention raised, deposit has to be made orelse the appeal will be defective. Unlike the other statuteswhere there is a provision for dispensation of pre-depositcondition, there is no such similar provision contained in thepresent statute. In the absence of such a provision, we do W.A.No.2516 of 2008-:6:-not find any infirmity or illegality in the order passed callingupon him to pay one-fourth of the amount and we are incomplete agreement with the view taken by the learnedSingle Judge. We find no merit in this writ appeal.8. Since the appellant has a claim for exemption andthe only authority competent to consider the same is theGovernment as per sec.3(2) of the Building Tax Act and thepetitioner/appellant having exercised to invoke such remedyfrom the Government, the said claim for exemption will beconsidered on merits and disposed of in accordance withlaw. Since the matter was pending before this Court in thewrit appeal stage itself, we grant a stay against the recoveryof the amount due as per the assessment order for a periodof three weeks and it is open to the appellant to seek suchinterim relief from the Government and they will begoverned by such orders that will be passed by theGovernment after the expiry of the period of three weeks. W.A.No.2516 of 2008-:7:-If, however, he seeks adjudication on merits based on othergrounds raised in the appeal, necessarily he is bound tocomply with the statutory conditions of pre-deposit. The appeal thus fails except to the limited extent asindicated in the foregoing paragraph on the direction todispose of the exemption claim pending before theGovernment.P.R.Raman, Judge.P.S.Gopinathan, Judge. mt/-