George Joseph vs The Assistant Labour Officer ...
2021 Latest Caselaw 21665 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
    TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                       WP(C) NO. 23941 OF 2021
PETITIONER:

          GEORGE JOSEPH
          AGED 65 YEARS
          S/O JOSEPH, PALAKKAL HOUSE, KATTAPPANA AUTO FUELS,
          IDUKKI KAVALA, KATTAPPANA-685 508.
          BY ADVS.
          LIJI.J.VADAKEDOM
          REXY ELIZABETH THOMAS
          TOM E. JACOB


RESPONDENTS:

    1     THE ASSISTANT LABOUR OFFICER GRADE -1
          ASSESSING AUTHORITY UNDER THE BUILDING CESS, OFFICE OF
          THE DISTRICT LABOUR OFFICER, IDUKKI, THODUPUZHA EAST-
          685 585.
    2     TAHSILDAR,
          TALUK OFFICE-UDUMBANCHOLA, IDUKKI DISTRICT-685 554.
    3     BHARATH PETROLEUM CORPORATION LTD,
          REPRESENTED BY THE TERRITORY MANAGER (RETAIL),
          IRIMPANAM INSTALLATION, IRIMPANAM P.O.KOCHI-682 308
OTHER PRESENT:

          GP SABEENA P.ISMAIL


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 23941 OF 2021
                                   2




               BECHU KURIAN THOMAS, J
              ................................................
              W.P.(C) NO.23941 OF 2021
              ...........................................
        Dated this the 2nd day of November, 2021


                           JUDGMENT

Petitioner challenges an order of assessment

under the Building and other Construction Workers

Welfare Cess Act, 1996.

2. Petitioner's contention is that even though he

was issued with a notice of assessment under the Act, a

copy of which is produced as Ext.P5, he filed Ext.P6

objection, pointing out that the owner of the building is

actually the Bharat Petroleum Corporation Limited, to

whom property had been leased by the petitioner. It was

pleaded in the objection that petitioner was not the

person on whom the liability for Building Cess under the

Act could be mulcted.

3. Adv. Liji J.Vadakedom, the learned counsel

for the petitioner submitted that the assessment order WP(C) NO. 23941 OF 2021

Ext.P8 was issued without considering the objections filed

by the petitioner. I have also heard Adv.Sabeena

P.Ismail, the learned Government Pleader and Adv.Benny

P.Thomas, the learned counsel for the 3rd respondent.

4. On a perusal of Ext.P8 it is revealed that the

contention of the petitioner raised in his objection Ext.P6,

especially regarding the ownership of the building for

which the Cess is imposed under the Act, has not been

referred to, at all. Even though there is a reference to the

notice issued to the petitioner there is a conspicuous

absence of the reply submitted by the petitioner. The

reply was sent by registered post acknowledgment due

on 9/3/2026 and the copy of acknowledgment card is

produced as Ext.P7 which shows that the assessing officer

received the reply notice on 10/3/2020. The order of

assessment was issued on 4/10/2021, much after the

receipt of reply notice.

5. In view of the aforesaid facts, that have been

revealed from the pleadings and the documents produced,

I am of the opinion that this calls for an interference due WP(C) NO. 23941 OF 2021

to violation of principles of natural justice and due to non

application of mind.

6. In view of the aforesaid finding on violation

of principles of natural justice, it is not necessary to

relegate the petitioner to the statutory remedy of appeal.

I deem it appropriate to quash Ext.P8.

7. While setting aside Ext.P8, I direct the 1 st

respondent assessing officer under the Act to issue notice

to the petitioner, after fixing a date of hearing and pass

fresh orders of assessment within a period of 60 days

from the date of receipt of a copy of this judgment, after

hearing the petitioner.

This writ petition is allowed as above.

Sd/-

BECHU KURIAN THOMAS JUDGE AJM WP(C) NO. 23941 OF 2021

APPENDIX OF WP(C) 23941/2021

PETITIONER'S EXHIBITS :

Exhibit P1 THE COPY OF THE LEASE DEED NO 4076/05 DATED 21.11.2005 OF THE SRO, KATTAPPANA.

Exhibit P2 THE COPY OF THE BUILDING PERMIT NO 173/05-06 DATED 6.10.2005 ISSUED FROM THE KATTAPPANA GRAMA PANCHAYAT.

Exhibit P3 THE COPY OF THE PROCEEDINGS DATED 30.6.2010 ISSUED BY THE 2ND RESPONDENT TAHSILDAR.

Exhibit P4 THE COPY OF THE RECEIPT DATED 30.7.2010 ISSUED BY THE 2ND RESPONDENT IN THE NAME OF 3RD RESPONDENT.

Exhibit P5 THE COPY OF THE NOTICE OF HEARING DATED 9.1.2020 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

Exhibit P6 THE COPY OF THE EXPLANATION DATED 9.3.2020.

Exhibit P7 THE COPY OF THE ACKNOWLEDGEMENT DUE

Exhibit P8 THE COPY OF THE PROCEEDINGS NO C1/4293/11 DATED 4.10.2021 ISSUED BY THE 1ST RESPONDENT WHO IS THE ASSESSING AUTHORITY UNDER THE BUILDING CESS

RESPONDENT'S EXHIBITS : NIL

AJM //TRUE COPY// PA TO JUDGE