IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 21257 of 2004(E) -------------------------- PETITIONER: ------------ K.K.RAJI, KARALASSERI HOUSE, THUMPOLI P.O., ARYAD, ALAPPUZHA. BY ADV. SRI.K.K.BABU SRI.M.R.SABU RESPONDENTS: ------------- 1. KERALA BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE BOARD, THIRUVANANTHAPURAM. 2. THE DISTRICT LABOUR OFFICER, AND THE ASSESSMENT OFFICER , THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT, ALAPPUZHA. 3. THANKAMMA VANAJAKSHI, VELIKKAKATHU, PATHIRAPPALLY P.O., ALAPPUZHA DISTRICT. BY SRI. SANTHOSH, GOVERNMENT PLEADER - R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: 1. EXHIBIT P1 : TRUE COPY OF SALE DEED NO.1185/2000 DATED 30/03/2000 REGISTERED IN THE SUB REGISTRY OFFICE, MARARIKULAM. 2. EXHIBIT P2 : TRUE COPY OF ORDER NO.C1/MAK/1742/02 DATED 18/12/2003 PASSED BY THE 2nd RESPONDENT. 3. EXHIBIT P3 : TRUE COPY OF REPRESENTATION DATED 1/1/2004 MADE BY THE PETITIONER BEFORE THE 2nd RESPONDENT. 4. EXHIBIT P4 : TRUE COPY OF INTIMATION NO.C1/MAK/1742/02 DATED 24/06/2004 ISSUED BY THE 2nd RESPONDENT. /TRUE COPY/ P.A. TO JUDGE scm S.SIRI JAGAN, J = = = = = = = = = = = = = = = = W.P.(C).No. 21257 OF 2004 = = = = = = = = = = = = = Dated this the 9th day of June, 2008. J U D G M E N T The petitioner purchased 28.664 cents of land along with the building standing thereon by Ext.P1 sale deed dated 30.3.2000. Subsequently, the petitioner was served with Ext.P2 notice, whereby the petitioner was directed to pay an amount of Rs. 37,800/- as cess payable under the Building and Other Construction Workers Welfare Cess Act, 1996. Petitioner filed Ext.P3 objection stating that she did not construct the building, but only purchased a constructed building, that only the owner who constructed the building is liable to pay cess under the Act and that therefore the demand against her is unsustainable. In spite of the same, Ext.P4 notice has been issued to the petitioner to pay the cess demanded as per Ext.P2, failing which proceedings in accordance with law was threatened to be initiated against the petitioner. Petitioner is challenging Exts. P2 and P4 orders in this writ petition. Petitioners contention is that she only purchased a constructed building and since she did not construct any building, she is not liable for payment of cess under the Kerala Building and Other Construction W.P.(C).No. 21257 OF 2004 2 Workers Welfare Cess Act. 2. A counter affidavit has been filed by the 2nd respondent in which the respondents take the contention that “employer” as defined in the Building and Other Construction Workers (Regulation of Employment and conditions of Service) Act, 1996, which is also applicable to the Cess Act defines “employer” in relation to an establishment as owner thereof. Petitioner being the owner of the building she is liable to pay cess is the contention raised. The learned Government Pleader by quoting the recitals in Ext.P1 would also submit that the petitioner has undertaken to pay all Government dues in respect of the property and therefore she is liable for payment of the cess also. The learned Government Pleader also raised a contention that since the Act provides for a remedy by way of an appeal the petitioner should have taken recourse to that remedy before approaching this court. 3. I have considered the rival contentions in detail. 4. As far as the contention regarding alternative remedy is concerned, I feel that after admitting this writ petition on 22.7.2004 and entertaining the same for four years, it would be unjust to relegate the petitioner to the alternate remedy by way of an appeal. W.P.(C).No. 21257 OF 2004 3 5. It is true that the definition of “employer” in the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act 1996 is applicable to the Building and Other Construction Workers Welfare Cess Act 1996 by virtue of Section 2(d) of the latter Act. It is also true that the definition of “employer” in relation to an establishment means owner thereof. But I do not think that all subsequent owners are liable for the cess payable by the owner who constructed the building. Under Section 3 of the Cess Act, cess is payable at the rate of 1% of the cost of construction incurred by an employer. That being so, going by Section 3 of the Cess Act, cess is payable by the employer who incurred the cost of construction. It is clear from Ext.P1 that the petitioner purchased the property with a building thereon. As such it is abundantly clear that the petitioner was not the employer who incurred the cost of construction of the building. Therefore, the petitioner is not the employer for the purpose of the Cess Act and as such she cannot be directed to pay cess under the Act. 6. Regarding the contention that in Ext.P1, the petitioner had undertaken to pay all Government dues, I do not think that by relying on that omnibus recital in Ext.P1, petitioner can be saddled W.P.(C).No. 21257 OF 2004 4 with the liability which is not due from her. In any event, proceedings initiated against the petitioner is not on the basis that by virtue of Ext.P1, petitioner is liable to pay amounts due from her. On the other hand, proceedings now initiated is on the basis that the petitioner is the employer as defined under the Act. In the above circumstances, I am not satisfied that the petitioner can be saddled with the liability to pay cess under the Act, on that ground also. Accordingly Exts.P2 and P4 are quashed. However, I make it clear that respondents would be free to proceed against the original owner who incurred the cost of the construction as per the provisions of the Act. Writ petition is allowed as above. S.SIRI JAGAN, JUDGE bkn/-