Premanand v. Deputy Tahsildar (RR), Revenue Recovery, Cochin; Deputy Labour Officer, Kalvathy Lane, Cochin; District Labour Officer, Appellate Authority under the Building and Other Construction Workers Welfare Cess Act, Kakkanad, Cochin (Addl. R3 impleaded)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936** ## **WP(C).No. 5636 of 2014 (D)** **---------------------------** ## **PETITIONER(S):** ## **-----------------------** **PREMANAND, S/O. N.V. SADANANDAN, NINDHASTHALATHU, KUZHUPPILLY, KOCHI-682 502.** **BY ADVS.SRI.JIMMY GEORGE, SRI.V.V.MITHUN.** ## **RESPONDENT(S):** - **----------------------------** **1. DEPUTY TAHSILDAR (RR), REVENUE RECOVERY, COCHIN-682 001.** **2. THE DEPUTY LABOUR OFFICER, KALVATHY LANE, COCHIN-682 002.** ## *** ADDL. R3 IMPLEADED** **3. DISTRICT LABOUR OFFICER, APPELLATE AUTHORITY UNDER THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT, KAKKANAD, COCHIN-682 030.** - **IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 11/03/2014 IN I.A. NO.3731/2014.** **BY GOVT. PLEADER MR.MANOJ KUNJACHAN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 5636 of 2014 (D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **P1. COPY OF FORM 1 DEMAND NOTICE DATED 07-01-2013. P1A. COPY OF FORM 10 DEMAND NOTICE DATED 07-01-2013. P2. COPY OF THE JUDGMENT IN WP(C).NO. 8024/2013.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R2A COPY OF THE NOTICE DATED 24/12/2011. EXT.R2B COPY OF THE ASSESSMENT NOTICE DATED 10/02/2012. EXT.R2C COPY OF THE RETURNED ORIGINAL OF R2(b). EXT.R2D COPY OF THE NOTICE OF THE ASSESSMENT DATED 08/08/2012. EXT.R2E COPY OF THE RETURNED ORIGINAL OF R2(d). EXT.R2F COPY OF THE SHOW CAUSE NOTICE DATED 29/09/2012. EXT.R2G COPY OF THE RETURNED OF R2(f).** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 5636 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - - -** **Dated this the 11[th] day of June, 2014** ## **J U D G M E N T** The petitioner constructed a two storied commercial building having an area of 4342.94 Sq.feet, which construction was completed in October 2009. The petitioner is aggrieved with the assessment made under The Building and Other Construction Workers Welfare Cess Act, 1996 read with the Building and other Welfare Cess Rules, 1998. The petitioner has not filed any appeal from the assessment order made, under the Act. Admittedly, the assessment was concluded as proposed in Ext.R2(b) assessment notice dated 10.02.2012. An amount of Rs.54,417/- was assessed and a penalty of like amount was imposed, for which the present demand has been raised under the Revenue Recovery Act as per Ext.P1 and P1(a), including the future interest. 2. The ground in the above writ petition is that WPC.No.5636/2014 : 2 : the petitioner was not issued with notice. Though the official respondent contends that the same was issued; it was never served on the petitioner, is the alternative plea. The petitioner has also an additional contention that the petitioner having been abroad, along with his brothers, only his aged father and mother were available at the residence of the petitioner and hence, no appeal also could be filed from the order. The petitioner by way of an amendment, seeks for consideration of an appeal after condoning the delay; which appeal admittedly is not yet filed. 3. The petitioner was before this Court earlier, challenging the very same revenue recovery proceedings, in W.P(C) No.8024/2013. This Court by Ext.P2 judgment, found that notices were issued in the manner prescribed under the Act and since there was no response, a final order dated 08.08.2012 was made levying cess which order is seen to have been accepted by the Power-of-Attorney holder of the petitioner. So WPC.No.5636/2014 : 3 : much is clearly recorded in Ext.P2 judgment. A further penalty notice was issued to the petitioner, on 29.12.2012, which too was returned without being accepted. Hence finding that notices have been issued and have been duly served, this Court rejected the contention of the petitioner by Ext.P2. 4. The present original petition is filed purportedly on the additional ground of the assessment having been made exorbitantly. It is trite that any valid ground on law or facts have to be taken and urged at the first instance, on which the litigant approaches the judicial forum and one cannot have piece-meal consideration of grounds which would only lead to invocation of the very same remedy again and again. 5. In the present case, it is further relevant that the petitioner had filed Review Petition, against Ext.P2 judgment, raising the ground of the demand raised being exorbitant. The review was dismissed by order dated 19.02.2014, in which again, the learned Single WPC.No.5636/2014 : 4 : Judge found that the ground raised is, outside the scope of the writ petition itself, since the challenge was only against the revenue recovery proceedings. Further more no such ground can be urged under Article 226 of the Constitution, since this Court would not go into the computation or the merits of the assessment made. The demand raised is on the assessment made, which has achieved finality. 6. On the basis of the counter affidavit, filed as directed by this Court, as also the various documents produced, the learned counsel for the petitioner would urge that it is very evident that no notice was served on the assessee. On a reading of the Act and Rules, Section 4 of the Act speaks of furnishing a return to the officer or authority under the Act, in such manner and within such time as may be prescribed. Rule 4 of the Rules stipulates that the Cess levied under Section 3(1) of the Act shall be paid by an employer within 30 days of completion of the construction project or within 30 days of the date on WPC.No.5636/2014 : 5 : which assessment of cess payable is finalised, whichever is earlier. Hence, it was the incumbent duty of the petitioner to have filed the return showing the amount expended for the construction and paid up the amounts, either within 30 days of an assessment order passed, on the basis of the return or on the completion of construction; which ever is earlier. 7. In the present case, admittedly, the petitioner has not filed any return, nor has he paid the cess within 30 days of completion of the construction project. However, a ground of violation of principles of justice would necessarily clothe this Court with the power to interfere; but only on an analysis of the procedure followed and that contemplated under the enactment. The contention with respect to non-receipt of notice, has to be considered on the basis of the provision, which regulates assessment, when the owner of a building fails to file the return and pay the cess. Rule 4(3) provides for issuance of notice to the employer for assessment of the cess. No WPC.No.5636/2014 : 6 : specific mode is prescribed for issuance of such notice. 8. Repeated notices, as are seen produced in the counter affidavit, have been issued under registered post. Ext.R2(a) is the first of such notices issued, the acknowledgment of which was never returned. Hence, as abundant caution, Ext.R2(b) was again issued which was returned with a postal endorsement “addressee left without intimation”. It was in such circumstance, that the final order of assessment was passed on 08.08.2012. The service of the order was also effected through registered post which was again, returned with the endorsement that the addressee is out of India. A further notice, requiring to show cause as to why penalty should not be imposed; Ext.R2(f), was also returned with the very same endorsement and the proceedings carried on ex-parte leading to imposition of penalty. 9. The contention of the petitioner that in such circumstance, the notice should have been affixed on the premises of the building of the petitioner cannot be WPC.No.5636/2014 : 7 : countenanced, since, there is no such provision under the Rule. The Hon'ble Supreme Court in **AIR 1989 SC 630 M/s. Madan and Co. v. Wazir Jaivir Chand** held that the issuance of notice, mandated only a duty upon the authority to sent it by post and even when receipt is specifically mandated under the statute, such receipt would only take in the tendering of the letter on the addressee, by the postman. The contention of the landlord in the said case, that notice was despatched was upheld. The alternate contention made, that affixture was effected, was negatived on the ground that there was no such provision for affixture; stipulated in the statute. Herein also such provision is absent and the petitioner cannot seek for service of notice by affixture, when it is not so provided. It was also the incumbent duty of the petitioner, as the owner of the building to have filed a return and paid the cess. The petitioner who was admittedly out of India hence, should have ensured that any notice served on him, would be properly accepted, at WPC.No.5636/2014 : 8 : the address in which he is permanently residing. 10. The further contention, that the delay in filing an appeal ought to be condoned cannot be accepted in view of the decision in **Asst.Commr. of Central Excise v. Krishna Poduval, 2005(4) KLT 947** , wherein the Division Bench of this Court held that the power under Article 226 cannot be invoked, to condone the delay in filing an appeal, in derogation of the time provided under the statute, when the statute itself does not confer any power on the authority to condone delay. 11. On all the above grounds, the writ petition fails and hence is dismissed. However, considering the plea of hardship, the petitioner if approaching the first respondent, shall be permitted to pay of the demand in four installments, starting from 11.07.2014 followed up with payments on every 11[th] of the succeeding three months. On satisfaction of the such installments, the first respondent shall issue a further notice for any future interest which shall be satisfied as the 5[th] installment. If WPC.No.5636/2014 : 9 : the petitioner does not approach the first respondent within two weeks from the date of receipt of a certified copy of this judgment, the first respondent shall be free to proceed with the revenue recovery proceedings. Writ petition dismissed with the above observations. Parties shall suffer the respective costs. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge