Kerala High Court
Razak Kunhi Ahammed vs State Of Kerala on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
WP(C) NO. 15561 OF 2021
PETITIONER:
RAZAK KUNHI AHAMMED,
AGED 57 YEARS
S/O. KUNHAHAMMED, DHARWESH MANZIL,
CHETTUMKUZHI, P.O.HIDAYATH NAGAR,
KASARGOD-671322.
BY ADVS.SRI.KALEESWARAM RAJ
SRI.VARUN C.VIJAY
SRI.MAITREYI SACHIDANANDA HEGDE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 SECRETARY, LABOUR DEPARTMENT,
LABOUR DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 LABOUR COMMISSIONER,
PATTOOR PMG RD., UNIVERSITY OF KERALA SENATE HOUSE
CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695033.
4 DISTRICT LABOUR OFFICER,
DISTRICT LABOUR OFFICE, OFFICE OF THE DISTRICT LABOUR
OFFICER, VIDYA NAGAR, KASARGOD-671123.
5 DEPUTY LABOUR OFFICER/ASSISTANT LABOUR OFFICER GRADE I,
OFFICE OF THE ASSISTANT LABOUR OFFICER GRADE I,
KASARGOD, NEAR CLOCK TOWER, RAILWAY STATION ROAD,
KASARAGOD-671121.+
6 SPECIAL DEPUTY TAHSILDAR (RR),
KASARGOD TALUK, KASARGOD-671121.
WP(C) NO. 15561 OF 2021
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7 CESS COLLECTOR,
DISTRICT LABOUR OFFICE, VIDYA NAGAR,
KASARGOD-671123.
8 SECRETARY, KERALA BUILDING AND OTHER CONSTRUCTION
WORKERS WELFARE BOARD, VIDYA NAGAR,
KASARGOD-671123.
R8 BY ADV.S.KRISHNA MOORTHY
ADV.SMT.SABEENA.P.ISMAIL-GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 15561 OF 2021
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BECHU KURIAN THOMAS, J.
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W.P.(C) No.15561 of 2021
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Dated this the 20th day of October, 2021
JUDGMENT
Petitioner had constructed a residential complex by name
'Dharvas Plaza' consisting of 22 quarters. Petitioner asserts that there are
12 quarters on the right lane and 10 quarters on the left lane.
2. In the year 2018, petitioner was subjected to an
assessment under the Building and Other Construction Workers Welfare
Cess Act, 1996 (for short, 'the Act') and was imposed with a welfare cess
of Rs.1,19,181/-. Assuming the said assessment was for all the buildings,
including for those on the left lane as well as the right lane, petitioner
claims to have paid the amounts due under the said order. Though
subsequently petitioner was issued with notices demanding further
amounts to the extent of Rs.1,31,706/-, petitioner did not tender the same
under the bonafide belief that amounts for all buildings had been assessed
and paid already.
3. In the meantime, alleging failure to pay the amounts due,
an attachment notice was issued pursuant to the revenue recovery
proceedings initiated stating that petitioner is liable to pay an amount of
Rs.1,59,938/- along with interest, a copy of which is produced as Ext.P7.
Petitioner claims that on realising that the revenue recovery is initiated
WP(C) NO. 15561 OF 2021
based upon an incorrect assessment issued against the petitioner, an
appeal was preferred on 23.07.2021 to the District Labour Officer,
Kazargod, as evident from Ext.P12. However, by Ext.P14 order dated
31.08.2021, petitioner's appeal was dismissed on the ground that the
petitioner had not deposited the mandatory fee as well as the fee for filing
the appeal. Since the petitioner was unable to satisfy the requirements
contemplated under law, the appeal was dismissed.
4. Though petitioner claims to have paid the amount of cess in
dispute in the appeal, as evident from Ext.P15 the appellate authority,
apparently refused to accept the payment alleging that petitioner had not
included the interest amount that accrued on the amount so assessed.
According to the petitioner the amount required to be paid as per Rule
14(2)(b) Kerala Building and Other Construction Workers' Welfare Cess
Rules, 1998 (for short, the Rules') is only the amount imposed as cess,
along with penalty, and not the amount of cess along with interest.
Petitioner contends that the interpretation adopted by the appellate
authority to Rule 14(2)(b) of the Rules is not correct and that the appellate
authority ought to have considered the appeal after accepting the amount
tendered by the petitioner as evident from Ext.P15.
5. I have heard Adv.Thulasi K.Raj, the learned counsel for the
petitioner, Adv.Sabeena P.Ismail, the learned Government Pleader as well
as Adv.S.Krishnamoorthy, the learned Standing counsel for the 8 th
respondent.
WP(C) NO. 15561 OF 2021
6. Rule 14 of the Kerala Building and Other Construction
Workers' Welfare Cess Rules, 1998 provides as follows :-
"14.Appeal.- (1) An employer aggrieved by an order of
assessment made under rule 7 or by an order imposing penalty
made under rule 12 may appeal against such order, within three
months of the receipt of such order, to the Appellate Authority.
"(2) The appeal shall be accompanied with-
(a) the order appealed against;
(b) a certificate from the cess collector to the effect
that the amount of cess or penalty or both, as the case may be,
relating to such appeal has been deposited;
(c) a fee equivalent to one per cent of the amount in
dispute or penalty or both, as the case may be, under such appeal.
(d) a statement of points in dispute;
(e) documentary evidence relied upon.
(3) On receipt of the appeal the Appellate Authority
may call from the Assessing Officer a statement on the basis of his
assessment order appealed against, as such Appellate Authority
may consider necessary for the disposal of such appeal.
(4) The Appellate Authority shall give the appellant an
opportunity of being heard in the matter and dispose of the appeal
as expeditiously as possible..."
7. Perusal of the aforesaid Rule makes it clear that the order of
assessment of cess if challenged in appeal must be accompanied by a
certificate from the cess collector to the effect that the amount of cess or
penalty or both relating to such appeal has been deposited along with a
fee equivalent to 1% of the amount in dispute. The cess imposed on the
petitioner is Rs.1,31,706/- and 1% of the amount in dispute would be
Rs.1,317/- when calculated without the interest accrued.
WP(C) NO. 15561 OF 2021
8. Petitioner claims to have deposited Rs.1,31,000/- as is
evident from Ext.P15. Though the said deposit is alleged to be not strictly
into the account as contemplated under the Rules, having regard to the
circumstances arising in the case, I am of the view that the said deposit,
since made to the Kerala Government, the same can be treated as a
deposit under Rule 14(2)(b) of the Rules. However, the petitioner has still
fallen short of the amount required under Rule 14(2) of the Rules by
Rs.706/- and if the balance amounts are deposited by the petitioner within
a period of 15 days from the date of receipt of a copy of this judgment, I
am of the view that rather than harping upon technicalities, it would be
conducive in the interest of all that the appeal be heard and considered in
accordance with law in a time bound manner.
9. Taking into reckoning the circumstances arising in the case,
Ext.P14 shall stand set aside and the 4 th respondent shall take up the
appeal preferred by the petitioner and consider the same in accordance
with law, on condition that, petitioner pays the balance amount of Rs.706/-
due towards cess under Rule 14(2)(b) apart from the amount required
under Rule 14(2)(c) within 15 days from the date of receipt of a copy of
the judgment. Orders in appeal shall be issued to the petitioner in a time
bound manner, not later than three months from the date of receipt of a
copy of this judgment subject to payment as directed after hearing the
petitioner. In the meantime, till such final orders are passed, all coercive
proceedings shall be kept in abeyance. It is clarified that this court has not
WP(C) NO. 15561 OF 2021
entered any finding on the liability or lack of it for payment of interest on
the cess imposed under the Act.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
WP(C) NO. 15561 OF 2021
APPENDIX OF WP(C) 15561/2021
PETITIONER EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE RECEIPT DATED 19.2.2018
ISSUED BY THE ASSESSING OFFICER, AUTHORITY
UNDER BUILDING AND CONSTRUCTION WORKERS
CESS ACT 1996 FOR AN AMOUNT OF RS.45,000/-.
EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 3.4.2018 FOR
AN AMOUNT OF RS.40,000/-.
EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 30.4.2018
FOR AN AMOUNT OF RS.34,181/-.
EXHIBIT P4 TRUE COPY OF THE ORDER NO.C2/676/2018 DATED
6.2.2019 WITH ENGLISH TRANSLATION.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 11.6.2019
NO.C2/676/2018 WITH ENGLISH TRANSLATION.
EXHIBIT P6 TRUE COPY OF THE SEIZURE/ATTACHMENT (JAPTI)
NOTICE ISSUED BY THE SPECIAL DEPUTY
TAHSILDAR (RR), KASARGOD TALUK DATED
9.4.2020 WITH ENGLISH TRANSLATION.
EXHIBIT P7 TRUE COPY OF THE DEMAND BEFORE
SEIZURE/ATTACHMENT NOTICE ISSUED BY THE
SPECIAL DEPUTY TAHSILDAR (RR), KASARGOD
TALUK DATED 20.5.2020 WITH ENGLISH
TRANSLATION.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
07.12.2020 BEFORE THE HON'BLE REVENUE
MINISTER BY THE PETITIONER.
EXHIBIT P9 TRUE COPY OF THE LETTER
NO.2020/445/14/1/M(REV) DATED 24.12.2020
WITH ENGLISH TRANSLATION.
EXHIBIT P10 TRUE COPY OF THE RECEIPT OF PAYMENT OF THE
1ST INSTALMENT WITH ENGLISH TRANSLATION.
EXHIBIT P11 TRUE COPY OF EXT.P6 WITH THE ADDITIONAL
NOTE WITH TRANSLATION.
WP(C) NO. 15561 OF 2021
EXHIBIT P12 TRUE COPY OF THE APPEAL SUBMITTED BY THE
PETITIONER UNDER SECTION 11 OF THE ACT
BEFORE 4TH RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE MEDICAL RECORDS OF THE
PETITIONER.
EXHIBIT P14 COPY OF THE LETTER DATED 31.08.2021 ISSUED
BY THE DISTRICT LABOUR OFFICER DISMISSING
THE APPEAL.
EXHIBIT P15 COPY OF THE RECEIPT OF PAYMENT DATED
02.09.2021 ISSUED BY THE LAND REVENUE
DEPARTMENT.
RESPONDENTS' EXHIBITS: NIL
