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Leonard Ashok Vs. Commercial Tax Officer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberW.P.(C) No. 18330 of 2006
Judge
Reported inAIR2007Ker87; 2007(1)KLT237;
ActsKerala Value Added Tax Act, 2003 - Sections 21, 22 and 67; Kerala General Sales Tax Act; Kerala Court Fees and Suits Valuation Act, 1959; Kerala High Court Act, 1958; Code of Civil Procedure (CPC) , 1908 - Sections 122 - Order 2, Rules 6; Madras Court Fees and Suits Valuation Act, 1955 - Sections 6, 6(3) and 6(4); Constitution of India - Articles 11, 11(1), 11(4), 225, 226 and 227; Kerala High Court Rules, 1971 - Rules 146 and 147
AppellantLeonard Ashok
RespondentCommercial Tax Officer
Appellant Advocate N. Muraleedharan Nair and; V.K. Shamsudeen, Advs.
Respondent Advocate V.V. Asokan, Government Pleader (Taxes)
Cases ReferredChandra Bhan Gosain v. State of Orissa
Excerpt:
- practice & procedure court fee; [b\v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] one writ petition challenging several penalty orders on the same set of facts and grounds held, petitioner need to pay one set of court fee only i.e., rs.100/- and not sperate court fee in respect of each cause of action. - it is the contention of the petitioner that though there was due intimation regarding the closure of business, notice on the proposal to levy penalty was issued in the same address and thereafter penalty orders were passed for failure to file monthly returns for the months of april 2005 to february 2006. the orders are marked as exts......twentyfive rupeesthough the state intended to re-introduce the provision of court fee for writ petitions, the same was done only by amendment to the rate as provided under article 11(1). the provision reads as follows:11(1) original petitions not otherwise provided one hundred rupeesfor when filed in the high court per petitioner.article 11(t) reads as follows:11(t) application or petition presented to the high court andnot otherwise specifically provided for ten rupees.prior to 2003 it was rs.2/-. in the bench decision in somanathanv. state of kerala (supra) it is held that the application orpetition referred to in article 11(1) is the interlocutory application and the court fee regarding original petition (writ petition) is to be governed by article 11(1)(iii). in radhamma v......
Judgment:

Kurian Joseph, J.

1. What is the court fee to be paid in a Writ Petition challengingseveral orders on the same set of facts and on same grounds is the question to be considered in this case. The matter was placed before us by reference order dated 28th July 2006 of the Division Bench. It would be profitable to refer to the factual matrix in order to appreciate the issue. Petitioner is an assessee under the provisions of the Kerala Value Added Tax Act, 2003. According to him on account of continuous loss he had stopped production during June 2005 upon due intimation. On account of the stoppage of production statutory monthly returns were not filed. It is the contention of the petitioner that though there was due intimation regarding the closure of business, notice on the proposal to levy penalty was issued in the same address and thereafter penalty orders were passed for failure to file monthly returns for the months of April 2005 to February 2006. The orders are marked as Exts. P1 to P11. According to the petitioner the penalty orders were issued in violation of the procedure under Section 67 of the Act, for want of notice. Aggrieved by Exts.Pl to P11 petitioner has filed revision petitions and also stay petitions . which are marked as Exts. Pl4 to P35 and the same are pending before the second respondent. In the meanwhile as per Ext. P36 recovery steps were initiated and hence the Writ Petition. When the Writ Petition came up for admission the learned Single Judge felt that since there is challenge on 11 penalty orders, the cause of action being multifarious, the court fee should be paid in respect of each cause of action as held by this Court in Writ Appeal No. 619/1989 and thereafter in an unregistered Writ Petition by another Division Bench in the order dated 6-11-1989 wherein the view taken was that when different proceedings are challenged in one Writ Petition, the petitioner is bound to pay separate court fee in respect of each of the proceedings. In both cases proceedings under the Kerala General Sales Tax Act were under challenge. The only difference is that in the instant case it is monthly returns whereas in the cases referred to above it is separate assessment order of each year. According to the learned single Judge despite the 2003 amendment in the Kerala Court Fees and Suits Valuation Act prescribing Rs.100/- per petitioner for the Writ Petition, when different and distinct proceedings are challenged, the petitioner should pay court fee in respect of each of the proceedings. The Division Bench in the order under reference noted that there is another Bench decision of this Court in Somanathan v. State of Kerala : 2003(3)KLT1148 wherein it was held that on interlocutory applications when more than one petitioner joins in a Writ Petition, only one set of consolidated court fee need be paid and there need not be court fee per petitioner. Inter alia it was also noted that as the 2003 Amending-Act used the expression 'per petitioner' as far as an original petition filed in the High Court is concerned, even when multifarious reliefs are clubbed in the writ petition the court fee is to be reckoned not in respect of the cause of action but counted in terms of the number of petitioners. The Division Bench which referred the matter for consideration by the Full Bench is of the opinion that 'a view possible is that petitioner ought to have challenged each penalty order by filing separate writ petition but since common question of law is available, he can be allowed to file one writ petition but separate set of court fees should be paid as if separate petitions are filed challenging each penalty order. Since this is a matter of importance, we are of the opinion that, it should be decided by a larger bench of this Court, and hence, we adjourn the case and place before the Honourable the Chief Justice for appropriate orders.'

2. A litigant is required to pay court fee in view of the special services rendered to him by the State Government in the matter of adjudication of his grievances. Under Entry 3 of list 2 of Schedule VII of the Constitution of India it is for the State Legislature to prescribe the court fee in the High Court and other courts. There has to be a broad co-relationship with the fees collected and the cost of administration of justice. The value of the subject matter of the dispute, the procedure involved in the adjudication, the establishment expenses etc. are some of the relevant matters in fixing the court fee.

3. The Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960) was enacted to amend and consolidate the law relating to Court Fees and Valuation of Suits in the State of Kerala. As per Section 21 'the fee payable under this Act shall be determined or computed in accordance with the provisions of this Chapter, (Chapter IV) Chapter VI, Chapter IX and Schedules I and II.' Article 11 alone deals with the court fee in respect of the original petition in the High Court. Under Article 11(1), original petitions not otherwise provided for when filed in the High Court, the court fee payable is Rs.100/- per petitioner. Prior to 5-12-1990 it was only Rs.25/- and in between till 2003 there was no fees. There was no stipulation regarding the fee payable by each petitioner. Article 11(r) of Schedule II of the Act prior to its omission with effect from 5-12-1990 read as follows:

Petition to the High Court under Article 226of the Constitution for a writ other than thewrit of Habeas Corpus or a petition underArticle 227 of the Constitution. Twentyfive rupees

Though the State intended to re-introduce the provision of court fee for writ petitions, the same was done only by amendment to the rate as provided under Article 11(1). The provision reads as follows:

11(1) Original Petitions not otherwise provided One hundred rupeesfor when filed in the High Court per petitioner.

Article 11(t) reads as follows:

11(t) Application or petition presented to the High Court andnot otherwise specifically provided for Ten rupees.

Prior to 2003 it was Rs.2/-. In the Bench decision in Somanathanv. State of Kerala (supra) it is held that the application orpetition referred to in Article 11(1) is the interlocutory application and the court fee regarding original petition (writ petition) is to be governed by Article 11(1)(iii). In Radhamma v. Srivasthava 2003 (3) ALT 916 it is also held that for contempt of court cases irrespective of the number of petitioners the court fee payable is only Rs.100/-.

4. Under Schedule II of the Court Fees and Suits Valuation Act, in contra distinction to all other Articles, Article 11(1)(iii) alone stipulates the fee as payable per petitioner. As per Section 21 of the Act the court fee payable is in accordance with the provisions of Chapter IV, Chapter VI, Chapter IX and Schedules only. Chapter IV deals with suits, Chapter VI deals with Probate, Letters of administration and Certificates of administration, Chapter IX provides for certain miscellaneous provisions regarding stamp, penalty, rule making power of the High Court, Government etc. Schedule I deals with ad valorem fees. Schedule II alone provides for the fees payable in a writ petition. It would be profitable to note that Article 11(1) is a residuary provision providing for original petitions not otherwise provided for in Schedule II. As noted above Article 11(r) omitted by Act 6 of 1999 was not re-introduced by the Amendment Act of 2003. Article 11(r) as it originally stood specifically provided for writ petition under Articles226 and 227 of the Constitution of India and the fee payable was Rs.25/-. It was in that context the earlier Division Bench of this Court held that in respect of separate cause of action when distinct and different reliefs are sought in a writ petition, the court fee payable is at the rate of Rs.25/- per cause of action. The Legislature obviously did not intend to retain the concept. A new concept was introduced by the Amendment Act of 2003 prescribing that in respect of Writ Petitions in the High Court, the court fee payable is only Rs. 100/- per petitioner.

5. The Kerala High Court Act 1958 was enacted to make provision regulating the business and exercise of the powers of the High Court of the State of Kerala. Rules of the High Court of Kerala 1971 were framed in'exercise of the powers conferred under Article 225 of the Constitution of India, Section 122 of the Code of Civil Procedure, by the High Court. Rule 146 deals with the contents of an original petition which reads as follows:

146. Contents of the applications. - Every application shall set out the provision of law under which it is made, the name and description of the petitioner and the respondent, a clear and concise statement of facts, the grounds on which the relief is sought and shall be signed by petitioner and by his Advocate, if he has appointed one, as in Form No. 10.

Provided that no petition shall be entertained by the Registry unless it contains a statement as to whether the petitioner had filed any petition seeking similar reliefs in respect of the same subject matter earlier and if so, the result thereof.

Rule 147 A permits more than one petitioner to join in a single writ petition on condition that each petitioner should pay court fee as prescribed under Schedule II of the Kerala Court Fees and Suits Valuation Act, 1959. The Rule reads as follows:

147A. More persons than one may join in one Writ Petitionas petitioners in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons present separate Writ Petitions, any common question of law or fact would arise provided that each person joining in such Writ Petition shall pay the court fee payable under Article 11(4) of Schedule II of the Kerala Court Fees and Suits Valuation Act, as if each of them had filed a separate Writ Petition.

6. The learned Special Government Pleader contends that in view of Section 6 of the Court Fees and Suits Valuation Act when an original petition embraces two or more distinct or different causes of action and separate reliefs are sought based on them, court fee should be paid in respect of each cause of action. The section reads as follows:

6. Multifarious suits. -

(1) In any suit in which separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the reliefs:

Provided that, if a relief is sought only as ancillary too the main relief, the plaint shall be chargeable only on the value of the main reliefs.

(2) Where more reliefs than one based on the same cause of action are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable in respect of any one of the reliefs.

(3) Where a suit embraces two or more distinct and different causes of action and separate reliefs are sought based on them, either alternatively or cumulatively, the plaint shall be chargeable with the aggregate amount of the fees with which plaints would be chargeable under this Act if separate suits were instituted in respect of the several causes of action:

Provided that, where the causes of action in respect of reliefs claimed alternatively against the same person arise out of the same transaction, the plaint shall be chargeable only with the highest of the fees chargeable on them.

Nothing in the sub-section shall be deemed to affect any power conferred upon a Court under Rule 6 of Order II of the Code of Civil Procedure, 1908 (Central Act V of 1908).

(4) The provisions of this section shall apply mutatis mutandis to memoranda of appeals, applications, petitions and written statements.

Explanation.-- For the purpose of this section, a suit for possession of immovable property and for mesne profits shall be deemed to be based on the same cause of action.

At the outset it has to be noted that the provision deals withonly suits and not original petitions in the High Court. The expression 'petition' under Section 6(4) is intended to provide for petitions filed in the suit and not an original petition. The learned Government Pleader invited our attention to the interpretation given to the section under the provisions of the Madras Court Fees and Suits Valuation Act, 1955. Section 6 herein is identically worded. A learned single Judge of the Madras High Court in R. Sethupathi v. The State : AIR1957Mad570 , observed that the petitioner referred to in Section 6(4) would include writ petitions also. We are afraid the interpretation does not reflect the correct position in law. It has to be noted that the court fee payable in a suit is ad valorem. Hence only it is stipulated in Section 6(3) that where a suit embraces two or more different and distinct causes of action and separate reliefs are sought based on them, the plaint should be valued on the aggregate amount of plaint claim for the purpose of court fees. It is also to be noted that under the Madras Court Fees and Suits Valuation Act, 1955, the court fee prescribed under Appendix II, Article 11(1)(iii) in respect of original petitions not otherwise provided for is only Rs.20/- at the relevant time. There is no stipulation in the Schedule regarding the fees to be paid by each petitioner when more than one person join in a Writ Petition. Under the Kerala Act the scheme is different. In the matter of payment of court fee in a writ petition the same is to be computed in terms of the number of petitioners in a writ petition. There is no stipulation in the Schedule or in the High Court Rules with regard to payment of court fee in respect of each cause of action. That does not mean that a writ petitioner can consolidate all his grievances in a bundle of facts and file one Writ petition. It would only mean that in a writ petition based on the same set of facts and on the very same question of law a writ petitioner need pay only one set of court fee, namely Rs. 100/-. The facts in the instant case are almost identical to that of the case considered by the Supreme Court in Chandra Bhan Gosain v. State of Orissa : [1963]50ITR195(SC) , wherein it has been held that in a petition under Article 226 challenging the validity of various assessment orders there was only one proceeding and hence in the appeal to the Supreme Court there need only be one set of court fee.

7. In this context it would also be profitable to refer to the contents of Form No. 10 prescribed under Rule 146 of the Rules of the High Court of Kerala in the matter of original petitions. The format reads as follows:

Form No. 10(Ruleb 146)

In the High Court of Judicature, Kerala

(Special Original Jurisdiction)

Original Petition No. ...of 19...

BETWEEN

AB....Petitioner

And CD....Respondent

Petition under Article 226 of the Constitution of India. The petitioner above named states as follows:

1. The petitioner is (give description and address). The address of the petitioner for service of all notices is....

2. The respondent is (give description and address)

3. * (Here set out the facts).

4. (Here set out the grounds for relief)

5. For the reasons set out above and in the affidavit filed herewith the petitioner prays that (set out the reliefs sought) ** including the interim reliefs.

(Sd) Petitioner.

(Sd) Advocate for petitioner.

Date

The Form also indicates that even if there are several reliefs, there need only be one writ petition in case the reliefs arise out of the same set of facts and rest on same set of grounds.

8. One of the reliefs prayed for in the writ petition is a direction to the second respondent to dispose of Ext. P14 to P24 revision petitions filed against Exts. P1 to P11 orders of penalty. The main ground in the writ petition is that the impugned orders have been passed without notice to the petitioner, in violation of the procedure prescribed under Section 67 of the Kerala Value Added Tax Act 2003. According to the petitioner, as soon as he received notice he has taken steps under Section 22 of the Act and hence he is not liable to be visited with any penalty. Since appreciation of facts is also involved in the case it is only appropriate that the statutory authority considers the revision petitions. Accordingly we direct the second respondent to consider and dispose of Exts.P14 to P24 revision petitions expeditiously, with notice and opportunity for hearing to the petitioner. Pending disposal of the revision petitions, the second respondent shall consider and pass orders on Exts.P25 to P35 stay petitions within one month from today. Till such time, the recovery steps pursuant to Ext. P36 demand notice will be kept in abeyance.

The Writ Petition is disposed of as above.


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