IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 20550 of 2009(K) ---------------------------------------- PETITIONER(S): ------------------------ THE BUILDING & OTHER CONSTRUCTION WORKER'S WELFARE BOARD, NIRMAN BHAVAN, METTUKADA, THYCAUD.P.O,THIRUVANANTHAPURAM-695 014. REPRESENTED BY ITS SECRETARY IN-CHARGE. BY ADV. SRI.M.N.SANJITH RESPONDENT(S): -------------------------- 1. V.P. FAKHRUDHIN, SON OF PARREKUTTY, FATHIMA MANZIL,CHADIROOR-688 547. 2. THE ASSISTANT LABOUR OFFICER GRADE-1, PULIKKAL, ALAPPUZHA-688 011. 3. THE DISTRICT LABOUR OFFICER, PULIKKAL, ALAPPUZHA-688 011. R2 & R3 BY GOVT. PLEADER SRI.K. RAMESH. R1 BY ADV. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, ALONG WITH WPC NO. 32707 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20550/2009-K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER ISSUED BY RESPONDENT NO.3 DATED 16/07/2007. EXT.P2: COPY OF THE ORDER BEARING NO.C1-CHL/439/03 ISSUED BY RESPONDENT NO.2 DATED 11/01/2008. EXT.P3: COPY OF THE ORDER ISSUED BY RESPONDENT NO.3 BEARING NO.G2- 4239/06 DATED 12/03/2008. EXT.P4: COPY OF THE JUDGMENT OF HONOURABLE HIGH COURT OF KERALA IN WP(C) NO. 26350/2008 DATED 18/03/2009. EXT.P5: COPY OF THE ORDER OF HONOURABLE HIGH COURT OF KERALA IN R.P.NO.562/2009 DATED 23/06/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 20550 & 32707 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of June, 2010 J U D G M E N T The petitioner in these two writ petitions is the Kerala Building and Other Construction Worker's Welfare Board. They are challenging orders passed under the Building and Other Construction Worker's Welfare Cess Act, 1996, wherein accepting the contention of the 1st respondent in the two writ petitions that, the 1st respondent's building was constructed prior to coming into force of the Building & Other Construction Workers' Welfare Cess Act, 1996, orders of assessment under the Act were set aside directing the petitioner to refund the cess collected from the 1st respondent to the 1st respondent in both writ petitions. The contention raised is that, even prior to the coming into force of the Act, the Kerala Construction Workers Welfare Fund Act, 1989 was in force and authority was given to the petitioner Board constituted under the 1996 Act, to collect W.P.(C)Nos. 20550 & 32707 of 2009 -2- cess payable under the State Act also, which only has been collected, which was set aside by the impugned orders on the ground that the construction of the building was prior to coming into force of the Act, which is wrong since prior to coming into force of the 1996 Act, cess was payable under the State Act. The contention is that the cess collected is under the Kerala Construction Workers Welfare Fund Act, 1989 and therefore the same could not have been set aside on the ground that the Central Act came into force after the construction of the building. 2. I have considered the contentions of the parties in the two writ petitions. As far as W.P.(C) No.20550/2009 is concerned the orders challenged are Exts.P1, P2 & P3 which are dated 16.07.2007, 11.01.2008 & 12.03.2008. The petitioner has filed the writ petition on 10.07.2009. No explanation is forthcoming for the inordinate delay, except that the petitioner Board was not heard in the matter. Even otherwise the 1st respondent had filed W.P.(C) No.26350/2008 for implementation of Exts.P1, P2 & P3 W.P.(C)Nos. 20550 & 32707 of 2009 -3- orders, in which judgment Ext.P4 has been passed by this court directing the petitioner to refund the amount of Rs.31,770/- to the 1st respondent in the writ petition with 10% interest. The petitioner herein filed a review petition namely R.P.No.562/2009 which was dismissed and again the petitioner was directed to comply with the judgment. As such, it is too late in the day for the petitioner to come with a challenge against Exts.P1, P2 & P3. Therefore there is no merit in W.P.(C) No.20550/2009 and accordingly the same is dismissed. 3. In W.P.(C) No.32707/2009 Exts.P1 & P2 orders under the 1996 Act are under challenge. Ext.P1 is dated 11.06.2007 wherein the appellate authority under the 1996 Act, directed the petitioner to refund the cess amounting to Rs.25,999/- collected from the 1st respondent. That was followed by Ext.P2 letter dated 08.02.2008 issued by the District Labour Officer, Kasargod, to the petitioner directing them to refund the cess paid by the 1st respondent. Here also, the writ petition is filed only on 13.11.2009. No W.P.(C)Nos. 20550 & 32707 of 2009 -4- explanation is forthcoming regarding the long delay. The petitioner cannot feign ignorance about the orders, since Ext.P2 is addressed to the petitioner. In the above circumstances, I do not find any merit in that writ petition also. Accordingly the same is also dismissed. S. SIRI JAGAN JUDGE shg/