IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 35757 of 2004(F) -------------------------- PETITIONER: ------------ HUSSAIN HAJI, S/O. ABDURAHIMAN, TRADER, AGED 47 YEARS, CHERUVATTIL HOUSE, KUNNUMMAKKARA, VADAKARA TALUK. BY ADV. SRI.B.KRISHNAN SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY SMT.S.LAKSHMY RESPONDENT: ------------- ASSESSMENT OFFICER, BUILDING & OTHER CONSTRUCTION WORKERS WELFARE CESS ACT, OFFICE OF THE DISTRICT LABOUR OFFICER, CIVIL STATION, KOZHIKODE. BY GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON 19/06/2008 DELIVERED THE FOLLOWING: W.P(C).No. 35757/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE NOTICE DTD.20.11.95. P2. COPY OF THE RECEIPT FOR PAYMENT DTD.29.12.95. P3. COPY OF -DO- DTD.21.3.90. P4. COPY OF -DO- DTD.6.7.96. P5. COPY OF -DO- DATED 19.9.96. P6. COPY OF THE NOTICE DTD.7.7.04. P7. COPY OF THE STATEMENT BY ABDUL KARIM HAJI DTD.15.7.04. P8. COPY OF THE ASSESSMENT NOTICE TO ABDUL KARIM HAJI DTD.20.7.04 P9. COPY OF THE NOTICE FOR PAYMENT TO ABDUL KARIM HAJI DTD.26.8.04. P10. COPY OF THE POWER OF ATTORNEY DEED BY ABDUL KARIM TO THE PETITIONER. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.35757 of 2004 ================== Dated this the 19th day of June, 2008 J U D G M E N T The petitioner, the owner of a building, challenges Ext.P8 assessment order under the Buildings and Other Construction Workers' Welfare Cess Act, 1996, directing the petitioner to pay amount of Rs.8,268/- as cess under the Act. The contention of the petitioner is that the date of commencement of the Act was 3.11.1995 whereas the petitioner's building was constructed prior to that date. In support of his contention, he relies on Ext.P1 notice of demand under Section 10 of the Kerala Building Tax Act, 1975, which is dated 20.11.1995, pursuant to which, the petitioner paid tax as evidenced by Ext.P2 tax receipt issued in December, 1995. The petitioner also relies on Ext.P7 statement and list of documents submitted by the petitioner before the respondent wherein a notice dated 20.10.1995 issued by the Tahsildar, Vadakara under the Kerala Building Tax Act is shown as one of the documents relied upon to prove this contention. With the help of these avements, the petitioner would contend w.p.c.35757/04 2 that the petitioner has proved that the date of completion of the building was prior to the notification date viz., 3.11.1995. On that ground, he would contend that Ext.P8 assessment order is unsustainable. 2. This is disputed by the learned Government Pleader. With the help of the counter affidavit he would submit that the building stated to have been completed on 20.10.1995 is not the building on which cess is assessed. According to the respondent, as per the information received from the Municipal office, Vadakara, rooms were numbered on 1.4.1999 and that the date of completion is 31.3.2000. He would also submit that copy of the receipt produced by the petitioner is not relating to the building for which cess is assessed. The petitioner would contend that the petitioner does not own any building other than the building for which cess is demanded. 3. From the above contentions, it is clear that there is a dispute regarding the issue. Therefore, it is for the petitioner to conclusively prove that the date of completion of the construction of the building is prior to 3.11.1995. Admittedly the building is in a Municipal area. That being so, for construction of the building, w.p.c.35757/04 3 building permit from the Municipality is essential. Consequently, the petitioner should have obtained completion certificate and certificate of occupation. The petitioner could have produced those documents which would have proved the case either way. The fact that the petitioner has not produced those documents, would go against the petitioner. Further, Ext.P1 assessment would not conclusively prove that the completion of the building was prior to 3.11.1995. Ext.P1 is dated 20.11.1995, which is issued after the coming into force of the Act. In such circumstances, I am of opinion that the petitioner has not discharged his onus of proving that the building was completed prior to 3.11.1995. That being so, I am not inclined to accept the contention of the petitioner. Consequently the writ petition fails and the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.35757/04 4