IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 15102 of 2007(W) --------------------------------------- PETITIONER(S): ---------------------- DR.C.K.RENJITH, AGED 38 YEARS, S/O. DR.P.NARAYANAN NAIR, `AAROHANAM', CHOOTAKADAVU ROAD, MANANTHAWADY, WAYANAD DISTRICT. BY ADV. MR.JOBI JOSE KONDODY RESPONDENT(S): ------------------------ 1. DEPUTY TAHSILDAR (REVENUE RECOVERY), TALUK OFFICE, MANANTHAVADY, WAYANAD DISTRICT. 2. THE ASSESSMENT OFFICER, CONSTITUTED UNDER BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT (DEPUTY LABOUR OFFICER), KALPETTA, WAYANAD. 3. THE SECRETRY, SULTHANBATHERY CO-OPERATIVE HOUSING SOCIETY LTD. NO.D.1999, SULTHANBATHERY P.O., WAYANAD DISTRICT. R1 & R2 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR. R3 BY ADV. MR.PHILIP MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15102/2007-W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AGREEMENT DATED 15/03/1995 ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT. EXT.P2: COPY OF THE DETAIL ESTIMATED PREPARED BY THE CONTRACTOR WHICH IS APPROVED BY THE 3RD RESPONDENT WITHOUT DATE. EXT.P3: COPY OF THE ASSESSMENT NOTICE DATED 07/09/2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P4: COPY OF THE OBJECTION TO EXHIBIT-P3 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5: COPY OF THE DEMAND NOTICE FOR REVENUE RECOVERY DATED 23/04/2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P6: COPY OF THE AGREEMENT DATED 15/03/1995 BETWEEN THE PETITIONER AND THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R3(1): COPY OF THE LOAN SANCTION ORDER DATED 25/02/1995 PASSED BY THE REGIONAL MANGER OF THE KERALA STATE CO-OPERATIVE HOUSING FEDERATION LTD. EXT.R3(2): COPY OF THE DEED OF AGREEMENT DATED 13/07/1997. //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 15102 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th July, 2009. J U D G M E N T The petitioner was allotted a plot and a building constructed thereon by the 3rd respondent-Society. The construction was made by the society after availing of a loan on behalf of the petitioner from the Kerala State Co-operative Housing Federation. The title in the property and the building would be transferred to the petitioner only when he clears off the entire loan arrears. As such, presently, the society continues to be the owner of the building and the property. According to the petitioner, as is clear from Exts.P1 and P2, it can be seen that the society constructed the house according to the plan prepared by them and the constructed building was handed over to the allottees. However, the 2nd respondent issued Ext. P 3 notice to the petitioner under the Kerala Building and Other Workers Welfare Fund Cess Act, assessing the petitioner to cess amounting to Rs.8,289/- under the Act. Although the petitioner filed Ext. P4 objections, the 2nd respondent has initiated Ext. P5 revenue recovery proceedings . Aggrieved by the same, the petitioner has filed this writ petition. 2. According to the petitioner, the petitioner is not a person liable to pay cess under the Act, insofar as he is not the owner or builder of the building. The owner and builder of the building is the 3rd respondent-Society. According to the petitioner, if at all, it is only the 3rd respondent-society who can be proceeded against for recovery of cess under the Act. 3. Respondents 1 and 2 have not filed any counter affidavit. The 3rd respondent has filed a counter affidavit stating that as per Ext. R3(2) agreement between the petitioner and the 3rd respondent- society, the petitioner had undertaken to pay the cess under the Act and therefore he cannot now escape from the liability to pay the W.P.C. No. 15102/07 -: 2 :- same. 4. I have considered the rival contentions in detail. 5. Ext.R3(2) is an agreement between the petitioner and the 3rd respondent. Despite the undertaking therein by the petitioner to pay dues under the abovesaid Act, it does not make the petitioner a person liable to pay cess to respondents 1 and 2 under the Act. That wold not also enable respondents 1 and 2 to proceed against the petitioner for recovery of the cess under the Act. Perhaps, by enforcing Ext. R3(2), the 3rd respondent-Society may be entitled to recover the cess paid by them from the petitioner. Therefore, insofar as the petitioner is neither the owner or builder of the building in question, the petitioner cannot be proceeded against for recovery of cess under the Act. For that reason, the impugned proceedings are not sustainable. Accordingly, the same are quashed. It would be open to respondents 1 and 2 to proceed against the 3rd respondent in accordance with law for recovery of the cess under the Act. It would be open to the 3rd respondent to contest the same on all grounds available to them under law. It would also be open to the 3rd respondent to enforce any contract between the petitioner and the 3rd respondent if, as per that contract, the petitioner has agreed to pay the cess due under the Act also by resort to appropriate proceedings as permitted by law. The amount paid as per the impugned orders shall be refunded to the petitioner within one month from today. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/