IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 12524 of 2004(N) -------------------------- PETITIONER: ------------ M/S. CEMEX ENGINEERS AND CONTRACTORS, A REGISTERED PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER, G.CHITAMBARA KUTTALAM, S/O. GOPALA PILLA, AGED 49, RESIDING AT `ABHILASH' POOJAPPURA, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT. SECRETARIAT, TRIVANDRUM. 2. ASSESSING OFFICER (AUTHORITY UNDER BUILDING AND OTHER CONSTRUCTION WORKS CESS ACT) OFFICE OF THE DISTRICT LABOUR OFFICER,VANCHIYOOR, TRIVANDRUM. 3. M/S. MUTHOOT BANKERS, STATUE, TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR. BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI SRI.U.K.RAMAKRISHNAN (SR.) FOR R3 SRI.P.V.LOHITHAKSHAN FOR R3 SMT.P.VIJAYAMMA FOR R3 SMT.UMA GOPINATH FOR R3 SRI.SANDEEP.E. SRI.DEVIDAS.U.K FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 12524/2004. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF CONSTRUCTION AGREEMENT DT. 23-11-1995. EXT.P2 NOTICE DT. 3-5-2001. EXT.P3 OBJECTION SUBMITTED BY R2. EXT.P4 ORDER DT. 3-11-2001. EXT.P5 OBJECTION DT. 28-9-2002. EXT.P6 JUDGMENT DT. 1-2-2002 IN O.P.78/2002. EXT.P7 ORDER DT. 27-2-2003. EXT.P8 MEMORANDUM OF APPEAL. EXT.P9 APPLICATION FILED BY PETITIOER. EXT.P10 COMMUNICATION DT. 14-7-2003. EXT.P11 LETTER DT. 19-1-2004. EXT.P12 LETTER DT. 7-11-2003. EXT.P13 LETTER DT. 25-2-2004. EXT.P14 LETTER DT. 10-3-2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 12524 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd June, 2008. J U D G M E N T The petitioner claims to be a contractor employed by the 3rd respondent for construction of a building. In respect of that building, proceedings were initially initiated against the 3rd respondent for recovery of cess under the Building and Other Construction Workers Welfare Cess Act, 1996, which resulted in Ext. P4 order by the assessing authority against the 3rd respondent. The 3rd respondent challenged the order passed by the assessing authority under the Act before this Court by filing O.P. No. 78 of 2002 in which Ext. P6 judgment was passed remanding the matter to the assessing authority for re-consideration of the matter. The assessing authority thereafter issued notice to the petitioner and the 3rd respondent and passed Ext. P7 order wherein the petitioner was found liable to pay an amount of Rs. 1,93,935/-. The petitioner filed an appeal, namely, Ext. P8 against Ext. P7 order. As per Rule 14(2) of the Rules applicable, the appellant was bound to deposit the amount assessed by the assessing authority for entertaining the appeal. The petitioner filed an application for waiver of that condition, which was rejected since there was no provision in the Rules for such waiver. The petitioner did not deposit the amount even thereafter. Therefore, the appeal was also dismissed by Ext. P11 order. The petitioner is now challenging Exts. P7 and P11 orders. 2. In so far as the petitioner has invoked the appellate remedy, I am not inclined to entertain the challenge against ext. P7 order at this juncture. Since the petitioner's appeal was rejected on the technical ground, I am of opinion that the petitioner can be given another opportunity to deposit the amount and prosecute the appeal thereafter. Learned Government Pleader submits that in addition to the amount to be deposited, the petitioner is also liable to pay 1% as W.P.C. No. 12524/2004. -: 2 :- fees for the appeal. In the above circumstances, Ext. P11 is quashed. The appellate authority is directed to give the petitioner another opportunity to deposit the amount assessed as also the fees applicable. If the petitioner pays the same within one month from the date of receipt of a copy of this judgment, the appellate authority shall take back the appeal on file and dispose of the same on merits, after affording an opportunity of being heard to the petitioner as well as the 3rd respondent. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/