N A Builders And Developers vs State Of Up And 2 Others
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Allahabad High Court

N A Builders And Developers vs State Of Up And 2 Others on 1 February, 2024

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:16800-DB
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 52 of 2024
 

 
Appellant :- N A Builders And Developers
 
Respondent :- State Of Up And 2 Others
 
Counsel for Appellant :- Jamal Ahmad Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Syed Qamar Hasan Rizvi,J.

Learned Single Judge has refused to entertain the writ petition directed against the ex-parte order dated 17.12.2022, primarily on the ground that the petitioner has the remedy of filing appeal under Section 11 of the Building and Other Construction Workers' Welfare Cess Act, 1996. A further observation is made that notice was served upon the petitioner by the Assessing Authority, but the petitioner did not appear.

Learned counsel for the appellant states that in fact no such notice was served and the order is wholly ex-parte. It is also submitted that liability of petitioner has not been correctly assessed and the Government Order, which lays down the mechanism for determination of such liability, has also not been followed. Learned counsel lastly submits that the appellant is willing to deposit the amount assessed by the authority i.e. Rs.14,58,499/- and the authority be directed to consider petitioner's objection and take a fresh decision, in accordance with law.

Learned State Counsel submits that the remedy of appeal is efficacious and there is no reason to interfere in the matter.

Learned counsel for the appellant places reliance upon the judgment of Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, reported in 1998 (8) SCC 1, in order to submit that alternative remedy would not be a bar to entertainment of writ, where opportunity has been denied, and the order is in violation of principles of natural justice.

In the facts of the case, we find from a perusal of the order impugned that determination of cess upon the petitioner is ex-parte. Though it is recorded that a notice was sent to the petitioner on 17.12.2022 but there is a specific denial of this service of notice. It is not discernible from the record as to how and when the notice was served upon the petitioner.

Without further entering into the factual issues, we are of the view that interest of justice would be served, if the present appeal is disposed of on following terms:-

(i) The appellant shall deposit the amount of cess, except penalty and interest, amounting to Rs.14,58,499/-, within two weeks from today. Any amount previously deposited under this head shall be adjusted.

(ii) Alongwith such deposit, the petitioner will be at liberty to represent against the determination made by the authority, who shall accord consideration to such objection of the petitioner and shall pass a fresh order, in accordance with law.

(iii) In order to facilitate such consideration of cause on merits, the order passed by learned Single Judge, dated 18.1.2024, in Writ Petition No.47 of 2024, is set aside.

(iv) The amount deposited by the petitioner shall remain subject to the outcome of the proceedings. Any further recovery against the petitioner shall abide by the fresh order to be passed by the authority. The order impugned in the writ petition dated 17.12.2022 shall also remain subject to the outcome of the order to be passed in terms of the above direction.

Order Date :- 1.2.2024

Anil