Kerala High Court
Karman P.O vs The Assistant Labour Officer Grade-I on 28 May, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 6734 OF 2024
PETITIONER:
KARMAN P.O., AGED 56 YEARS, S/O VARKEY
OUSEPH,PALAKUNNEL HOUSE, KARAMOLEPEEDIKA
JUNCTION, KOLENCHERRY P.O., PIN - 682311
BY ADV SAJEEV KUMAR K.GOPAL
RESPONDENTS:
1 THE ASSISTANT LABOUR OFFICER GRADE-I
OFFICE OF THE DISTRICT LABOUR OFFICER,
ERNAKULAM,THE ASSESSMENT OFFICER, UNDER
THE BUILDING AND OTHER CONSTRUCTION WORKERS,
WELFARE CESS ACT, 1996., PIN - 682030
2 THE DEPUTY TAHSILDAR, KUNNATHUNADU TALUK,
TALUK OFFICE, PERUMBAVOOR P.O., ERNAKULAM DISTRICT,
PIN - 683542
3 THE VILLAGE OFFICER, AYKKARANADU NORTH VILLAGE,
KADAYIRIPPU P.O., KOLENCHERRY., PIN - 682310
*4 KERALA BUILDING AND OTHER CONSTRUCTION WORKERS
WELFARE BOARD, JAWAN CROSS ROAD, PONEKKARA,
EDAPALLY,ENAKULAM DISTRICT, REPRESENTED BY THE
DISTRICT EXECUTIVE OFFICER
(ADDL R4 IS IMPLEADED AS PER ORDER IN I.A.NO.1/2024
DATED 28.05.2024)
BY ADVS.
SRI.S.KRISHNAMOORTHY, SC - R4
SMT.C.S.SHEEJA, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 6734/24
2
JUDGMENT
The petitioner impugns Ext.P3, which is the Assessment
Order issued by the 1st respondent - the Statutory Authority under
the provisions of the Kerala Building and other Construction
Workers Welfare Cess Act, 1996 ('the Act' for short).
2. The specific contention of the petitioner is that Ext.P3
has been issued in violation of natural justice, without having
afforded an opportunity of being heard to him; and further that,
even though there is a statutory Appellate remedy provided against
it, as per Section 11 of the Act read with Rule 14 of the Kerala
Building and Other Construction Workers' Welfare Cess Rules,
1998 ('the Rules' for short), it is not an efficacious one,
particularly when Ext.P3 is a non-speaking order and issued in a
pre-prepared format.
3. The petitioner asserts that this is more so because, if he
is to challenge Ext.P3 through the statutory mechanism, he will
have to pay the entire amount of Cess assessed in order to
maintain it; and therefore, that he has preferred several
representations before the Authority seeking that the assessment
be reconsidered. He says that, however, all these had been
rejected through Ext.P7; and therefore, that he has been
constrained to approach this Court through this Writ Petition.
4. The afore submissions of the petitioner, as made by his
learned counsel - Sri. Sajeev Kumar K.Gopal, were however,
vehemently opposed by Sri.S.Krishnamoorthy - learned Standing
Counsel for the 1st respondent, saying that when the petitioner
admits that he has not invoked his statutory remedies against
Ext.P3, this Writ Petition becomes untenable and not maintainable.
He pointed that Ext.P3 is of the year 2020 while, the petitioner
has chosen to wait until 19.02.2024 to file this Writ Petition; and
that this clearly indicates that he had refused to invoke his
remedies, but has now chosen to justify such on certain reasons,
which are totally untenable and unacceptable. He concluded saying
that, when the statutory mechanism provides that an order like
Ext.P3 can only be assailed through an appeal and that too, after
remitting the amount assessed, any attempt to circumvent the
same, by approaching this Court, is impermissible and unlawful.
He, thus, reiteratingly prayed that this Writ Petition be dismissed.
5. Smt.C.S.Sheeja - learned Senior Government Pleader,
submitted that, apart from the factum of this Writ Petition being
not maintainable for the reasons already stated by Sri.
S.Krishnamoorthi, the petitioner's assertion that Ext.P3 suffers from
the violation of principles of natural justice is untrue because, he
was admittedly issued with every notice prior to it, including
Ext.P1. She explained that 1st respondent - Assessment Authority
had no other option, but to issue Ext.P3, since the petitioner did
not heed to any of the demands or notices issued to him; and
that, to exacerbate the situation, he has waited for nearly four
years to approach this Court, saying that the statutory appellate
remedy against it is not efficacious. She argued that the reasons
stated by the petitioner, in justification of his conduct is having
approached this Court through this Writ Petition, is absolutely
impermissible and hence liable to be rejected. She thereafter
submitted that, as evident from Ext.P2, the allegation of the
petitioner, that he had not been heard with respect to the
objections, is not tenable because, he himself admits that, after he
was issued with an initial notice showing the cost of construction
to be Rs.6 Crores, the amount had been revised to
Rs.1,23,67,441/- after he was heard, which is reflected in Ext.P3.
She submitted that for this reason also Ext.P3 is irreproachable.
6. I have evaluated the afore submissions very intently,
particularly, within the ambit of the Statutory Scheme.
7. It is pertinent that the petitioner himself admits that
he obtains a statutory remedy against Ext.P3 before the Appellate
Authority. In fact, after conceding so without any reservation, he
says that such a remedy is not efficacious, alleging that Ext.P3 is
not a speaking order and that the statutorily mandated
requirement to deposit the assessed cess is onorous.
8. I am afraid that the afore argument of the petitioner
can never be accepted by this Court because, it is well settled,
through the judgments of this Court and that of the Honourable
Supreme Court, that solely because a condition is attached to the
invocation of an appellate remedy by a litigant, it does not
become unconstitutional or unconscionable. For such reason, the
argument of the petitioner, without any substantiating basis, that
he could not invoke his appellate remedy on account of the
statutory condition, imposed becomes totally unacceptable to even
be considered.
9. That said, however, as far as Ext.P3 is concerned, it is
concededly prepared in a format, wherein, multiple reasons are
shown, which was to be then chosen by the assessing officer;
namely that the assessee has not filed objections; that the
objections are not acceptable; and that the amount of cess has
been reduced appropriately. Unfortunately, Ext.P3 does not say
which of these options the Assessing Officer has taken, nor does it
disclose what is the basis on which the cost of construction has
been determined to be Rs.1,23,67,441/-.
10. Even though it is conceded by the petitioner in Ext.P2
that, originally, some proceedings which he received showed the
value of construction to be Rs.6 Crores, which was then reduced
to Rs.1,23,674/-, there is nothing in Ext.P3 to show how this
figure was entered into; and this is vital because, even going by
the figures that have been stated by Sri.Krishnamoorthi before this
Court as to the manner in which the amount has to be calculated
based on the plinth area, it does not tally.
11. It is now too well settled for restatement, by the
Honourable Supreme Court in Mohinder Singh Gill and Another v.
The Chief Election Commissioner, New Delhi and Others [AIR 1978
SC 851] that every order will have to be supported by its contents
and not by the pleadings to be filed subsequently, when it is
under challenge.
12. As far as this case is concerned, Ext.P3 merely says that
the cost of construction is Rs.1,23,67,441/- and the appropriate
cess has been identified. However, it is completely silent as to
how the afore figure had been arrived at; and therefore, it is
obvious that there has been no 'assessment' as is required in law.
13. That being said, in Ext.P2 objections filed by the
petitioner, he has conceded that the cost of construction is
Rs.73,00,000/-. Obviously, this figure cannot be resiled by him any
further. This Court, therefore, will be fully justified in directing
the petitioner to pay cess based on such figure, so that the matter
can then be reconsidered by the ALO, adverting to Ext.P2, with
respect to the balance amounts, as are mentioned therein.
14. I record that this course has been agreed to by all the
parties.
In the afore circumstances, I allow this Writ Petition with
the following directions:
a) The petitioner will remit an amount of Rs.75,000/-
before the Assessing Authority; and if he has already remitted
Rs.50,000/- out of it as per Ext.P8, the same shall be given credit
to, and only the balance to be paid. This shall be done within a
period of two weeks from the date of receipt of a copy of this
judgment.
b) On the afore being done, the Assessing Authority will
reconsider the Appeal of the petitioner dehors Ext.P3, and make a
fresh assessment in terms of law, after hearing both sides,
adverting to Ext.P2, as also to any other documents that he may
file, within a period of one week from today.
c) I clarify that I have not entered into the merits of the
rival contentions regarding the amount to be finally arrived at and
these are fully left open to be decided by the Assessing Authority
in terms of law.
Sd/-
RR DEVAN RAMACHANDRAN
JUDGE
APPENDIX OF WP(C) 6734/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ASSESSMENT NOTICE VIDE
NO.C1/27214/2019 DATED 25-11-2019 ISSUED
BY THE 1ST RESPONDENT
Exhibit P2 TRUE COPY OF THE OBJECTION SUBMITTED BY
THE PETITIONER DATED 21-12-2019
Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE
RESPONDENT DATED 07-09-2020 VIDE NO.
C1/27214/2019
Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER DATED 01-10-2020
Exhibit P5 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE RESPONDENT DATED 26-03-2022
Exhibit P6 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE RESPONDENT DATED 26-06-2022
Exhibit P7 TRUE COPY OF THE COMMUNICATION ISSUED BY
THE 1ST RESPONDENT DATED 12-06-2023
Exhibit P8 TRUE COPY OF THE RECEIPT DATED 29-09-2023
VIDE NO.C1/27214/2019
Exhibit P9 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST
RESPONDENT DATED 15-01-024 VIDE
NO.C1/282/2024
Exhibit P10 TRUE COPY OF THE REVENUE RECOVERY NOTICE
ISSUED TO THE PETITIONER BY THE 2ND
RESPONDENT DATED 18-01-2024 UNDER SECTION
7 OF THE KERALA REVENUE RECOVERY ACT
Exhibit P11 TRUE COPY OF THE REVENUE RECOVERY NOTICE
ISSUED IN FORM 10 DATED 19-01-2022 UNDER
SECTION 34 OF THE ACT
