Allowed

Razak Kunhi Ahammed v. State of Kerala

Kerala HC20 Oct 2021WP(C)/15561/2021

Case brief

AI extract

What is this about?

The Court interpreted Rule 14 of the Kerala Building and Other Construction Workers' Welfare Cess Rules, 1998. It allowed the petitioner's appeal by setting aside the dismissal order, directing the 4th respondent to consider the appeal, and required the petitioner to deposit a balance sum within 15 days.

What did the court decide?

Petitioner granted 15 days to deposit balance cess/fee; 4th respondent to hear appeal within 3 months; coercive proceedings in abeyance; Ext.P14 set aside.

Razak Kunhi Ahammed Vs State of Kerala — Service and Employment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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WEDNESDAY, THE 20^TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943

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WP(C) NO. 15561 OF 2021

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PETITIONER:

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RAZAK KUNHI AHAMMED, AGED 57 YEARS

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S/O. KUNHAHAMMED, DHARWESH MANZIL, CHETTUMKUZHI, P.O.HIDAYATH NAGAR, KASARGOD-671322.

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BY ADVS.SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY SRI.MAITREYI SACHIDANANDA HEGDE

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 SECRETARY, LABOUR DEPARTMENT, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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3 LABOUR COMMISSIONER, PATTOOR PMG RD., UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695033.

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4 DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE, OFFICE OF THE DISTRICT LABOUR OFFICER, VIDYA NAGAR, KASARGOD-671123.

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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.+

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6 SPECIAL DEPUTY TAHSILDAR (RR), KASARGOD TALUK, KASARGOD-671121.

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WP(C) NO. 15561 OF 2021

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7 CESS COLLECTOR, DISTRICT LABOUR OFFICE, VIDYA NAGAR, KASARGOD-671123.

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8 SECRETARY, KERALA BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE BOARD, VIDYA NAGAR, KASARGOD-671123.

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R8 BY ADV.S.KRISHNA MOORTHY

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ADV.SMT.SABEENA.P.ISMAIL-GP.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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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 20^th day of October, 2021

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JUDGMENT

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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.

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In the year 2018, petitioner was subjected to an

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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.

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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

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WP(C) NO. 15561 OF 2021

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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.

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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.

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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.

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WP(C) NO. 15561 OF 2021

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Rule 14 of the Kerala Building and Other Construction

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Workers' Welfare Cess Rules, 1998 provides as follows :-

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“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.

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“(2) The appeal shall be accompanied with-

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(a) the order appealed against;

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(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;

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(d) a statement of points in dispute;

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(e) documentary evidence relied upon.

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(3) On receipt of the appeal the Appellate Authority

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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.

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(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...”

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Perusal of the aforesaid Rule makes it clear that the order of

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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.

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WP(C) NO. 15561 OF 2021

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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.

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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

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WP(C) NO. 15561 OF 2021

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entered any finding on the liability or lack of it for payment of interest on the cess imposed under the Act.

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The writ petition is allowed as above.

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Sd/- BECHU KURIAN THOMAS, JUDGE

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RKM

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WP(C) NO. 15561 OF 2021

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APPENDIX OF WP(C) 15561/2021

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PETITIONER EXHIBITS :

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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.

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WP(C) NO. 15561 OF 2021

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EXHIBIT P12	TRUE COPY PETITIONER BEFORE 4TH	OF THE UNDER RESPOND	APPEAL SUBMITTED BY THE SECTION 11 OF THE ACT ENT.
EXHIBIT P13	TRUE COPY PETITIONER.	OF THE	MEDICAL RECORDS OF THE
EXHIBIT P14	COPY OF TH BY THE DIS THE APPEAL.	E LETTER TRICT L	DATED 31.08.2021 ISSUED ABOUR OFFICER DISMISSING
EXHIBIT P15	COPY OF 02.09.2021 DEPARTMENT.	THE REC ISSUED	EIPT OF PAYMENT DATED BY THE LAND REVENUE

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RESPONDENTS' EXHIBITS: NIL

Razak Kunhi Ahammed v. State of Kerala

Case brief

What is this about?

What did the court decide?

Razak Kunhi Ahammed v. State of Kerala

Case brief

What is this about?

What did the court decide?

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