High Court of KeralaSingle JudgeWrit petition dismissed.

Mini Sajan Varghese v. Kumily Grama Panchayat and The Taxation & Appeal Standing Committee, Kumily Grama Panchayat

Case / Petition Number:WP(C).No. 21936 of 2007 (J)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Antony Dominic
Judgment Date
2012-05-22
Court Decision / Holding
Writ petition dismissed.
Final Disposition
Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

  • Mini Sajan Varghese
  • SAJ Flight Services Pvt. Ltd.

Respondents

  • Kumily Grama Panchayath
  • The Taxation & Appeal Standing Committee, Kumily Grama Panchayath, Kumily

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Millu Dandapani

Counsels for Respondents

  • • Sri. Jice George, SC
  • • Sri. Shanavas Khan

Case Synopsis & Summary

The petitioner, Mini Sajan Varghese, owner of a resort within the jurisdiction of Kumily Grama Panchayath, challenged the building tax assessment and a library cess levied after notices under Rule 7 of the Kerala Panchayath Raj (Taxation, Levy and Appeal) Rules, 1996. The sequence began with Ext.P4, a building tax payment, followed by Ext.P5 notice proposing an amended assessment, and Ext.P6–P9 responses and final Ext.P9 order, which quantified tax at Rs. 6,30,840 and Rs. 34,032 as library cess. The matter earlier reached this Court in WP( C) No.5675/2007, where a judgment (Ext.P10) relegated the petitioner to pursue appellate remedies, and Ext.P11 appeal was filed under Rule 10. The Court, via Ext.P13 I.A., directed expeditious disposal with a stay in the meantime. During pendency, the Panchayath issued Ext.P14 demanding remittance of tax to consider Ext.P11, and Ext.P15 RR demand, prompting this writ petition to quash Exts.P14–P15 and direct disposal of Ext.P11. Respondents argued that Rule 7 justified P5–P9 and Rule 12(2) requires remittance for appeals; remittance is a condition precedent. The petitioner relied on Ext.P10, Ext.P13, and Sankara Narayanan v. State of Kerala to challenge Rule 6’s applicability. The Court held remittance is required and that Rule 6 does not apply here, ultimately dismissing the petition. The decision reinforces that tax remittance remains a prerequisite for appeal under the Rules.

Provisions of Law Cited

Rule 7 of the Kerala Panchayath Raj (Taxation levy and appeal) Rules, 1996Rule 12(2) of the Rules (Panchayath Raj (Taxation, Levy and Appeal) Rules, 1996)Rule 12 of the RulesRule 6 of the Kerala Panchayath Raj (Building Tax and the Sub Charge Thereon) Rules, 1996 (Kerala)G.O.(MS) No.166/2007/LAD dated 23.06.2007

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Exts.P14 and P15 (recovery demands) are impermissible since the Court’s earlier directions (Exts.P10 and P13) and the interim stay did not envisage liability to remit the tax to challenge Ext.P11; remittance is a condition precedent under Rule 12(2), and the appeal was to be disposed in accordance with law. The petition seeks quashing of Exts.P14 and P15 and a direction to consider Ext.P11 without the remittance prerequisite. The reliance on Sankara Narayanan’s interpretation of Rule 6 is argued to render the proceedings void, but the counsel concedes Rule 6 does not apply when Rule 7 is invoked. Respondents: They insist that Rule 7 justifies Exts.P5–P9, and Rule 12(2) requires remittance before appealing; thus Exts.P14 and P15 are legal, and the appeal was rightly deemed non-maintainable for non-compliance. The respondents further rely on Ext.R1(a) (order dated 05.12.2007) rejecting the appeal for non-compliance and on prior orders directing disposal in accordance with law.

Contentions of Respondents

Rule 7 justifies the amended tax proceedings and notices (Exts.P5–P9). Rule 12(2) requires remittance before an appeal can be entertained; Exts.P14 and P15 are lawful demands to secure stay of disposal, and the subsequent appeal was dismissed for non-compliance as per Ext.R1(a). The respondents argue that the interim orders did not erase the statutory requirement to remit tax before maintaining the appeal, and the Court’s later directions did not alter this condition precedent.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sankara Narayanan v. State of Kerala2012(1) 271DistinguishedThe court distinguished the proposition in Sankara Narayanan regarding applicability of Rule 6. Although cited by the petitioner, the court held that Rule 6 does not apply here because Rule 7 governs the Taxation proceedings, and therefore Sankara Narayanan’s reasoning was not controlling in this context.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **TUESDAY, THE 22ND DAY OF MAY 2012/1ST JYAISHTA 1934** **WP(C).No. 21936 of 2007 (J) ---------------------------** **PETITIONER(S): -------------** **MINI SAJAN VARGHESE, SAJ FLIGHT SERVICES PVT. LTD., JUNGLE VILLAGE, HERITAGE RESORT, THEKKADY.** **BY ADV. SRI.MILLU DANDAPANI** **RESPONDENT(S):** **--------------** **1. KUMILY GRAMA PANCHAYAT, KUMILY, REPRESENTED BY ITS SECRETARY.** **2. THE TAXATION & APPEAL STANDING** **COMMITTEE, KUMILY GRAMA PANCHAYAT, KUMILY.** **BY ADV. SRI.JOICE GEORGE,SC,KUMILY G.PANCHAYATH BY ADV. SRI.SHANAVAS KHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** ## **WP(C).No. 21936 of 2007 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF LICENCE NO.A2-350/2003 DATED 09.12.2003 ISSUED BY THE RESPONDENT TO THE PETITIONER.** - **P2: COPY OF LICENCE NO.A2-205/2003 DATED 09.12.2003 ISSUED BY THE RESPONDENT TO THE PETITIONER.** - **P3: COPY OF RECEIPT NO.99 FROM BOOK NO 51892 DATED 19.09.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER.** - **P4: COPY OF RECEIPT DATED 15.12.2004 EVIDENCING REMITTANCE OF BUILDING TAX FOR THE PERIOD 2004-2005 BY THE PETITIONER.** - **P5: COPY OF NOTICE NO.A/06 DATED 23.02.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER.** - **P6: COPY OF COVERING LETTER DATED 0303.2006 ALONG WITH THE RETURN SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.** - **P7: COPY OF NOTICE NO.A3-2/06 DATED 05.01.2007 OF THE RESPONDENT ISSUED TO THE PETITIONER.** - **P8: COPY OF OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT VIDE NO. SFS/D-286/2006-07 DATED 15.01.2007.** - **P9: COPY OF NOTICE NO.A3-2/2006 DATED 07.02.2007 ISSUED BY THE RESPONDENT TO THE PETITIONER.** - **P10: COPY OF JUDGMENT OF THIS HON'BLE COURT, DATED 09.4.2007 IN WPC NO. 5675/2007 A.** - **P11: COPY OF APPEAL PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT,DATED 02.06.2007 EXCLUDING ANNEXURES THEREIN.** - **P12: COPY OF POSTAL ACKNOWLEDGMENT WITH REGARD TO EXT P11.** - **P13: COPY OF INTERIM ORDER DATED 03.07.2007 RENDERED BY THIS HON'BLE COURT IN I.A.NO.8877/2007 IN WPC NO. 5675/2007 A.** - **P14: COPY OF NOTICE NO. A3-2/06 DATED 12.07.2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **P15: COPY OF REVENUE RECOVERY DEMAND NOTICE DATED 12.07.2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **P16: COPY OF THE APPLICATION DATED 13.03.2007 ALONG WITH ANNEXURES SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P17: COPY OF THE DEMAND NOTICE FOR AN AMOUNT OF RS.16,60,764/- ISSUED AGAINST THE PETITIONER.** - **LSN** ## **WP(C).No. 21936 of 2007 (J)** - **P18: COPY OF THE ORDER DATED 25.07.2007 IN R.P. NO. 702/2007 IN WPC 5675/2007.** - **P19: COPY OF GOVERNMENT ORDER G.O.(MS) NO.166/2007/LAD DATED 23.06.2007, REFERRED TO IN THE AFFIDAVIT.** - **P20: COPY OF INTIMATION RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT VIDE NO.A3-2/2006 DATED 16.03.2007.** ## **RESPONDENT'S EXHIBITS:** - **R1 (a): COPY OF THE ORDER NO. A3/2/07 DATED 05/12/07 OF THE KUMILY GRAMA PANCHAYATH.** **R1(b): COPY OF THE ROOM OCCUPANCY CHART DATED 17/12/05.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **LSN** ## **ANTONY DOMINIC,J** ## **----------------------------------** ## **W.P.(C)No.21936 of 2007** ## **------------------------------------Dated this the 22[nd] day of May, 2012** ## **JUDGMENT** Petitioner is the owner of a Resort which is situated within the jurisdiction of the first respondent Panchayath. 2. The building tax payable was assessed and was paid as per Ext.P4 receipt. Subsequently, based on the directions issued by the Standing Committee for Finance as per Rule 7 of the Kerala Panchayath Raj(Taxation levy and appeal) Rules, 1996, proposing to amend the tax inadequately assessed, the petitioner was given Ext.P5 notice. On receipt of the notice, petitioner filed Ext.P6 reply. Thereafter, Ext.P7 notice was again given, which was also objected by filing Ext.P8. Finally, by Ext.P9 order tax was assessed at Rs.6,30,840/- and Rs.34,032/- was levied towards the library cess. 3. This levy was challenged before this Court in writ petition No.5675/2007, which was disposed of by Ext.P10 judgment relegating the petitioner to pursue the appellate remedies. Accordingly, the petitioner filed Ext.P11 appeal as per Rule 10 of ## **W.P.(C)No.21936 of 2007 2** the Rules mentioned above. Later, by Ext.P13 order in I.A.No.8877/2007 in writ petition No.5675/2007, this Court directed expeditious disposal of the appeal keeping recovery in abeyance. 4. During the pendency of the appeal, the Panchayath issued Ext.P14 intimating the petitioner that unless the amount due under Ext.P9 is paid, the Panchayath will not be in a position to consider the appeal. This was followed by Ext.P15 R.R. demand notice. It was at that stage, this writ petition was filed seeking to quash Exts.P14 and 15 and to direct the second respondent to consider Ext.P11 appeal. 5. Respondents have filed a statement relying on Rule 7 of the Rules to justify Ext.P5 culminating in Ext.P9 proceedings. Insofar as, Exts.P14 and P15 are concerned, they are rely on Rule 12 of the Rules, which provide that no appeal shall lie against the imposition of tax unless the tax mentioned in the demand notice has been remitted. ## **W.P.(C)No.21936 of 2007 3** 6. As already seen, there are only two prayers in this writ petition. First one is to quash Exts.P14 and P15. By Exts.P14 and 15, petitioner was called upon to remit the tax due under Ext.P9 to consider Ext.P11 appeal. Rule 12(2) of the Rules referred to above provide that no appeal shall lie against imposition of tax unless the tax due has been remitted. If that be so, the remittance of tax is a condition precedent for maintaining an appeal and Exts.P14 and P15 demanding payment of tax was perfectly in terms of Rule 12(2). In such a situation, Exts.P14 and 15 cannot be said to be illegal. 7. Insofar as, the second prayer for a direction to dispose of Ext.P11 appeal is concerned, along with the statement filed on behalf of the respondents, they have produced Ext.R1(a) order, which shows that for non-compliance of Rule 12(2), the appeal was rejected by order dated 05.12.2007. In the light of this order, which is not under challenge, the second prayer in the writ petition also has become infructuous and cannot be granted. ## **W.P.(C)No.21936 of 2007 4** 8. However, the counsel for the petitioner contended that in view of the orders passed by this Court evidenced by Exts.P10 and P13, the petitioner did not have the liability to remit the tax demanded as per Exts.P14 and P15 and therefore, the rejection of the appeal for non-compliance of Rule 12(2) is erroneous. I am unable to agree with the counsel. By Ext.P10 judgment in W.P. (c) No.5675/2007 while relegating the petitioner to pursue appellate remedy, this Court ordered continuation of the interim order for three months from 09.04.2007. Subsequently, when Ext.P13 order was passed, this Court did not pass any such order. Even in Ext.P18 while disposing of the review filed by the petitioner, the Panchayath was given the liberty to deal with the appeal in accordance with the law. Therefore, the interim order of stay passed in Ext.P10 continued only till July, 2007 and was not in force when Ext.R1(a) order was passed on 05.12.2007. 9. Relying on the judgment of this Court in **Sankara Narayanan v. State of Kerala (2012(1) 271),** counsel for the petitioner contended that in view of Rule 6 of the Panchayath Raj ## **W.P.(C)No.21936 of 2007 5** (Building Tax and the Sub Charge Thereon) Rules, 1996(Kerala), Panchayath cannot revise the annual rental value already assessed for the period of 5 years, except in case of renovation or addition. On this basis, the counsel contended that the very proceedings are without jurisdiction. Here again, I am unable to agree with the counsel. Rule 6, as clarified in paragraphs 4 and 6 of the judgment itself, does not apply to a situation where Rule 7 of the Kerala Panchayath Raj (Taxation, Levy and Appeal) Rules, 1996 is invoked. As already stated, both in Exts.P5 and P7, it was Rule 7 of the Rules, which was invoked by the respondent Panchayath. Therefore, this contention also has to be rejected. For the aforesaid reasons, the writ petition deserves to be rejected and it is dismissed. ## **ANTONY DOMINIC, JUDGE** ln