Allowed

Ettonil Aysha v. the Building Assessment Officer

Kerala HC26 May 2022WP(C)/6032/2019

Case brief

AI extract

What is this about?

The High Court of Kerala, Ernakulam, allowed a writ petition quashing demand notices for arrears of construction cess issued in 2019. The court held the demand was barred by limitation as the arrears were due in 2012 and no valid acknowledgment extended the period, making the claim unsustainable under the Limitation Act.

What did the court decide?

Demand notices Exts.P3 and P4 are quashed; Rs.50,000/- deposited by petitioners is refunded.

Ettonil Aysha Vs the Building Assessment Officer — Cheque Dishonour | Kerala HC (2022)

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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 AMIT RAWAL

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THURSDAY, THE 26TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944

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WP(C) NO. 6032 OF 2019

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PETITIONERS:

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1 ETTONIL AYSHA, AGED 54 YEARS,

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W/O. PUTHIYAVEETIL KALIPAYIL ABOOBACKER HAJI, PUNNA, CHAVAKKAD, THRISSUR DISTRICT - 680 506.

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2 PUTHIYAVEETIL KALIPAYIL ABOOBACKER HAJI, PUNNA, CHAVAKKAD, THRISSUR DISTRICT - 680 506

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BY ADV K.K.MOHAMED RAVUF

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RESPONDENTS:

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1 THE BUILDING ASSESSMENT OFFICER, (DEPUTY LABOR OFFICER, THRISSUR), KERALA BUILDINGS AND OTHER CONSTRUCTIONS WORKERS WELFARE FUND BOARD, CIVIL STATION, THRISSUR - 680 008.

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2 THE CHIEF EXECUTIVE OFFICER, KERALA BUILDINGS AND OTHER CONSTRUCTIONS WORKERS WELFARE FUND BOARD, THIRUVANANTHAPURAM - 695 001.

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3 THE SPECIAL DEPUTY TAHSILDAR (RR), CHAVAKKAD TALUK, THRISSUR - 680 506

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4 THE VILLAGE OFFICE, IRINGAPURAM - 680 103, THRISSUR DISTRICT.

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BY ADVS.
SRI JIMMY GEORGE, GOVERNMENT PLEADER
SRI.S.KRISHNA MOORTHY, SC, KB &AMP; OCWWB

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 6032 OF 2019

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JUDGMENT

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Petitioners are wife and husband. They have constructed residential buildings in the 33.32 cents of property owned by them along with their son, in Resurvey No.168/8,9,18 of Iringapuram Village, Guruvayur Municipality.

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Exts.P3 and P4 demand notices dated 16.1.2019 were issued by the 3^rd respondent demanding an amount of Rs.7,12,391/- as arrears on account of Kerala Building & Other Construction Workers Welfare Cess. which was alleged to become due on 22.06.2012. Ext.P3 notice was issued under Section 7 and Ext.P4 notice was issued under section 34 of the Revenue Recovery Act. Ext.P1 is the assessment order dated 25.10.2012.

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Learned counsel for the petitioners submitted

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that as per the provisions of Rule 4 of the Building and other Construction Workers Welfare Cess Rules, 1998

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WP(C) NO. 6032 OF 2019

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cess levied under Section 3(1) of the Act is to be paid within 30 days of the date on which the construction project was completed. There was no acknowledgment of the amount to be paid extending the period of limitation necessitating the respondents to raise the demand in the year 2018. The demand is ex-facie barred by limitation as per the provisions of Section 113 of the limitation Act. Many other matters of such nature are already pending where there is interim stay. Reliance has also been laid to the judgment of this Court in West India Steels Co.Ltd v. State of Kerala (2017 (3) KLT SN 46) whereby the learned Single Bench of this Court by relying upon the Full Bench decision in Raveendran Nair v. State of Kerala reported in (2014 (4) KLT 625) made it clear that since the arrears can be recovered under Section 71 of the Kerala Revenue Recovery Act, in the same manner as if it is a public revenue due on the land and the nature of the debt will not become a public revenue due on the land and for that purpose, the

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WP(C) NO. 6032 OF 2019

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limitation of only 3 years would be applicable. Judgment of the Supreme Court reported in State of Kerala v. V.R.Kalliyanikutty 1992 (2) KLT 146 was also relied on.

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On the other hand, learned Government Pleader submitted that assessment notice for an amount of Rs.2,89,081/- was issued to the petitioners on 6.9.2012 which was received by the petitioners on 14.9.2012. Thereafter, on 25.10.2012, 1^st respondent passed an order to pay the amount on or before 20.11.2012, which was also received by the petitioner on 2.11.2012. As there was no response, show cause notice was issued on 7.10.2013 which was also received by the petitioners on 22.11.2013.

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I have heard the learned counsel for the parties and appraised the paper book.

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Section 18 of the limitation Act, which is extracted hereinbelow provides that the limitation can be only extended when there is an acknowledgment of the debt.

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WP(C) NO. 6032 OF 2019

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-5-

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Effect of acknowledgment in writing.—

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(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

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(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.— For the purposes of this section,—

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(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;

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(b) the word “signed” means signed either personally or by an agent duly authorised in this behalf; and

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(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.

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WP(C) NO. 6032 OF 2019

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-6-

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The acknowledgment if taken from 2019, would

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not extend the period of limitation as the cess has to be paid within a period of 30 days of the construction of the building, which was allegedly due in 2012, the assessment order was passed in 2012 and limitation expired in 2015. Thus the show cause notice issued in 2019 would not extend the period of limitation. Even otherwise, Article 113 and 137 of the limitation Act provide that when there is no limitation, the dues can be recovered only within the period of 3 years. The demand is ex-facie barred by limitation and is not sustainable. The demand notices Exts.P3 and P4 are hereby quashed.

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Writ petition stands allowed. The amount of Rs.50,000/- deposited by the petitioners initially is to be refunded.

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Sd/-

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AMIT RAWAL

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JUDGE

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vv

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WP(C) NO. 6032 OF 2019

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APPENDIX OF WP(C) 6032/2019

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PETITIONER EXHIBITS

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EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER
DATED 25/10/2012 ISSUED BY THE 1ST
RESPONDENT ALONG WITH ITS TRUE ENGLISH
TRANSLATION.

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EXHIBIT P2TRUE COPY OF THE REQUISITION MADE BY
THE 1ST RESPONDENT TO THE 3RD
RESPONDENT DATED 28-12-2018.

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EXHIBIT P3TRUE COPY OF THE DEMAND NOTICE DATED
16/1/2019 ISSUED BY THE 3RD RESPONDENT
UNDER SECTION 7 OF THE KERALA REVENUE
RECOVERY ACT.

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EXHIBIT P4TRUE COPY OF THE DEMAND NOTICE DATED
16/1/2019 ISSUED BY THE 3RD RESPONDENT
UNDER SECTION 34 OF THE KERALA REVENUE
RECOVERY ACT ALONG WITH ITS TRUE
ENGLISH TRANSLATION.

Ettonil Aysha v. the Building Assessment Officer

Case brief

What is this about?

What did the court decide?

Ettonil Aysha v. the Building Assessment Officer

Case brief

What is this about?

What did the court decide?

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