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2013 DIGILAW 453 (KER)

Sayed Abdul Kader Bafakyh v. Secretary, GCDA, Ernakulam

2013-06-07

BABU MATHEW P.JOSEPH, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : Thottathil B. Radhakrishnan, J. 1. Heard learned counsel for the appellants, learned counsel for GCDA and learned Government Pleader. The application for condonation of delay in instituting the appeal is attributed to the time taken for prosecuting an application for review before the learned single Judge and also certain other grounds, which are attempted to be put u/s 5 of the Limitation Act. Having bestowed our anxious consideration to the grounds taken in support of that application, we are satisfied that sufficient cause has been shown to condone the delay. Hence, delay condoned. 2. On to the writ appeal, it appears that what was projected before the learned single Judge is the complaint that there was demand of building tax under the KBT Act, 1975 without sanction of law, on the facts of the case. The learned single Judge addressed that issue in paragraph 3 of the impugned judgment and repelled that ground. Immediately, a request was made for an installment facility. That was granted. The application for review before the learned single judge was on the ground that no concession was made by the request for installments. In law, we are clear that the request and grant of installment facility did not take away the right of the appellants to carry any ground raised in the writ petition in an intra-court appeal. 3. Be that as it may, examining the facts, we see that no incidence under the KBT Act is the subject matter of this litigation. Though the learned counsel for the appellants attempted to say that it is against a demand for property tax under the Municipalities Act, that appears to be misconceived. What is impugned is a notice given by the Greater Cochin Development Authority (for short, 'GCDA') requiring the appellants who are the lessees, to satisfy the requirement to pay property tax to the Corporation of Cochin under the provisions of the Municipalities Act, 1994, and produce the receipt of such payment before the GCDA. 4. We have examined the lease document which is the contract between the parties (exhibited as Ext. P2 along with the writ petition). Clause 4 of the document contains the term by which the lessees have agreed to bear, pay and discharge all existing and future taxes, charges, assessments and outgoings payable in respect of the shop room. 4. We have examined the lease document which is the contract between the parties (exhibited as Ext. P2 along with the writ petition). Clause 4 of the document contains the term by which the lessees have agreed to bear, pay and discharge all existing and future taxes, charges, assessments and outgoings payable in respect of the shop room. In the light of that clear provision, it was within the authority of GCDA, as the lessor, to ensure that the lessees carry out the obligations under the lease, because, failure to abide by the terms of lease, may lead to consequences between the lessor and the lessees in terms of the grant and also in terms of the laws. Having regard to such clear provision in Ext. P2, we see no ground to come to the aid of the appellants, at all. We also see that the appellants have produced three documents as Annexures A1, A2 and A3 along with this appeal. Annexures A2 and A3 are the judgments in the earlier round before the Division Bench and the memorandum of review before the learned single Judge. Those materials can be treated as Annexures. However, what is produced as Annexure A1 is a photocopy of a lease between GCDA and certain other persons. We are of the considered view that such material could not have been placed along with the appeal except with appropriate application for admission of additional evidence in terms of Order XLI Rule 27 of Code of Civil Procedure, because the provisions in Order XLI apply to appeals u/s 5 of the High Court Act. We make this observation regarding production of additional materials in writ appeals, for further guidance of the Registry also. Registrar (Judicial) to see this order. In the result, this writ appeal with the application for condonation of delay are dismissed, in limine.