IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 WP(C).No. 26448 of 2005(W) -------------------------- PETITIONER: -------------- G.MOHANDAS, JAYAMOHAN BHAVAN, CHANDRAMANGALAM, ANAD P.O., NEDUMANGADU. BY ADV. SRI.ANIL NARAYANAN SMT.A.K.PREETHA RESPONDENTS: ----------------- 1. APPELLATE AUTHORITY UNDER THE BUILDING CONSTRUCTION WORKERS WELFARE CESS ACT, (DISTRICT LABOUR OFFICER),THIRUVANANTHAPURAM. 2. THE ASSESSING AUTHORITY UNDER THE BUILDING CONSTRUCTION WORKERS WELFARE CESS ACT, THIRUVANANTHAPURAM. ADDL. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR AND EMPLOYMENT, NEW DELHI. ADDL. 4. BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. (R3 & R4 IMPLEADED AS PER ORDER DATED 9.9.05 IN I.A. No.13729/05) R1 & R2 BY GOVT. PLEADER, SMT.SMITHA SUKUMARAN R3 BY ADV. SRI. AJITH KRISHNAN, ADDL.CGSC R4 BY SC FOR BCWWCA TVM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26448 of 2005(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF CERTIFICATE ISSUED BY M/S.KEERTHI AND BHAVANA DATED 17.08.2004. EXT.P2 : TRUE COPY OF ORDER PASSED BY THE 2ND RESPONDENT DATED 23.06.2004. EXT.P3 : TRUE COPY OF APPEAL DATED 4.9.2004 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4 : TRUE COPY OF ORDER PASSED BY THE 1ST RESPONDENT DATED 23.06.2005. /TRUE COPY/ PA TO JUDGE P.R.RAMACHANDRA MENON,J - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 26448 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of September, 2011 JUDGMENT The petitioner is stated as aggrieved of the assessment made under the Building and Other Construction Workers Welfare Cess Act (referred to as 'Act' in short), 1996. The case of the petitioner is that the petitioner is the owner of an old building which was a dilapidated one, requiring immeidate renovation. In view of the dire necessity, the petitioner effected the reconstruction by engaging some architects and the renovation work started in the year 1993 was allegedly completed much prior to the 'appointed date', which is 03.11.1995, notified as per Section 1(3) of the Act, on which day the Act came into force. As per the relevant provisions of the statute, the owner of the building assessable is liable to deposit the requisite amount satisfied at the rate of 1% of the cost as 'Cess', with regard to which, there is no dispute. 2. The case of the petitioner is that, after issuance of the notice by the 2nd respondent with regard to the assessment, WP(C) No. 26448 of 2005 -:2:- the proceedings were finalised as per Ext.P2 assessment order dated 23.06.2004, whereby the petitioner was required to satisfy a sum of `68,040/-, being 1% of the cost of renovation. Being aggrieved of Ext.P2, the petitioner preferred Ext.P3 appeal before the 1st respondent, which however was not entertained by the appellate authority for want of 'pre-deposit' as contemplated under the relevant provisions of law. The appeal was rejected accordingly as per Ext.P4, which forms the subject matter of challenge in this writ petition. 3. The learned counsel for the petitioner submits that the petitioner has raised several grounds; mainly challenging the vires of the rule particularly Rule 14(2) (b) which stipulates the pre-deposit. It is stated that the appeal(Ext.P3) preferred by the petitioner ought to have been considered on merit which hence is sought to be interfered in this writ petition. 4. Going by the materials on record, it is seen that the petitioner was served with a notice in connection with the steps for assessment by the 2nd respondent, as contemplated under the relevant provisions of law. In spite of the service of WP(C) No. 26448 of 2005 -:3:- pre-assessment notice, asking for explanation if any, the petitioner, did not submit any explanation. There was no case for the petitioner before the 2nd respondent that the building was actually constructed before the relevant date '03.09.1995'. It was in the said circumstance the assessment was finalised as per Ext.P2; which in turn was subjected to challenge by filing Ext.P3 appeal, leading to Ext.P4 rejection. 5. besides the factual sequence as above, it is also relevant to note that, no such material, but for Ext.P1 has been produced by the petitioner along with the writ petition in support of the contention that the building in question was renovated prior to the appointed date. The only reliance sought to be placed on is Ext.P1, which is a letter dated 17.08.2004 issued by the Architect, who allegedly had designed the building and undertook the supervision of construction of the building belonging to the petitioner stating that the said construction was completed in September, 1995. No copy of the agreement executed with the said Architect is produced before this Court, nor is there any reference in Ext.P1 as to the relevant records, if any, maintained WP(C) No. 26448 of 2005 -:4:- by the Architect, which formed the basis for having issued Ext.P1 certificate stating that the construction was completed nearly a decade back in September, 1995. In the said circumstance, this Court finds it difficult to glibly swallow the version of the petitioner without a pinch of salt. This Court finds that the case put forth by the petitioner referring to the alleged completion of the building prior to the appointed date is nothing but an afterthought, there was no such case before the assessing authority at any point of time, particularly when the acceptance of the pre-assessment notice is not disputed and no reply is stated as preferred before the said authority. No copy of the notice or reply, if any, is produced before this Court as well. In the said circumstance, no interference is called for in the writ petition. The Writ Petition fails and the same is dismissed accordingly. However, taking note of the persuasive submissions made by the learned counsel for the petitioner to permit the petitioner to clear the liability in a phased manner, this Court finds it fit and proper to extend such an accommodation. In the WP(C) No. 26448 of 2005 -:5:- said circumstance, the petitioner is permitted to clear the liability by way of 10 equal monthly instalments; the first of which shall be effected on or before the 30th of this Month; to be followed by similar instalments on or before the last working day of the succeeding month. Subject to this, the recovery proceedings, if any, shall be kept in abeyance for the time being. If any default is committed by the petitioner in satisfying the liability as above, it will be open for the respondents to proceed with further steps for the realisation of the entire amount in lump. The constitutional issue raised is left open. P.R.RAMACHANDRA MENON, JUDGE ttb