Sundaran Bhaskaran v. Building Assessment Officer (Assistant Labour Officer, Grade I, Thrissur) and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944 WP(C) NO. 1914 OF 2022** ## **PETITIONER/S:** SUNDARAN BHASKARAN AGED 48 YEARS S/O.BHASKARAN, PAZHANKANDATH HOUSE, KEECHERI, THRISSUR DISTRICT, PIN-680501. BY ADV K.K.MOHAMED RAVUF ## **RESPONDENT/S:** 1 THE BUILDING ASSESSMENT OFFICER (ASSISTANT LABOUR OFFICER, GRADE I, THRISSUR), (ASSESSING OFFICER , AUTHORITY UNDER THE BUILDING AND OTHER CONSTRUCTION WORKERS' WELFARE CESS ACT 1996) OFFICE OF THE ASSISTANT LABOUR OFFICER, CHEROOR POST, THRISSUR, PIN-680008. 2 THE CHIEF EXECUTIVE OFFICER, KERALA BUILDING AND OTHER CONSTRUCTION WORKERS' WELFARE FUND BOARD, THIRUVANANTHAPURAM-695001. 3 THE DEPUTY TAHSILDAR (RR), OFFICE OF THE DEPUTY TAHSILDAR, CHAVAKKAD, THRISSUR DISTRICT-680506. 4 THE VILLAGE OFFICER, VILLAGE OFFICE, GURUVAYOOR, THRISSUR DISTRICT-680101. BY ADV ADVOCATE GENERAL OFFICE KERALA ## **OTHER PRESENT:** GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 1914 OF 2022** **2** ## **JUDGMENT** Petitioner is the owner cum builder of a building called 'Sreepathi Indraprastha Service Apartments. A building permit for construction of 65 service apartments in 29.88 cents of land, was obtained. The construction of the apartments was completed in 2013 and were sold to different persons. 2. Petitioner was flabbergasted to receive a revenue recovery notice of demand from Deputy Tahsildar, Office of the Deputy Tahsildar, Chavakkad, Thrissur alleging the dues of Rs.5,99,890/- as arrears of Cess under the building and other construction dues which had alleged to become due on 25.9.2013. The aforementioned notice was issued under the provisions of Section 34 of the Revenue Recovery Act. Petitioner approached the 3[rd] respondent and was handed over the assessment notice dated 14.1.2015 alleged to have been issued by the 1[st] respondent, Ext.P4 and also final assessment order dated 8.7.2015, Ext.P5. **WP(C) NO. 1914 OF 2022** **3** 3. Learned counsel for the petitioner submitted that as per the provisions of Rule 4 of the Building and other Construction Workers Welfare Cess Rules, 1998 (hereinafter called Rules), 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 acknowledgement of the amount to be paid extending the period of limitation necessitating the respondent to raise the demand in the year 2021. The demand is ex-facie barred by limitation as per the provisions of Section 112 of the limitation Act. Many other matters of such nature are already pending where there is an 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 **WP(C) NO. 1914 OF 2022** **4** land and the nature of the debt will not become a public revenue due on the land and for that purpose, the limitation of only 3 years would be applicable. 4. On the other hand, learned Government Pleader raised the objection of estoppel as the petitioner vide R1(g) had requested the department to pay the amount in instalments. The assessment notice dated 18.2.2014, R1(c) was issued. Petitioner produced Form 1 under Rule 6 of the Building and Other Construction Workers Welfare Cess Act, 1996. But when the assessment notice on 14.1.2015 was issued, petitioner failed to appear and pay the process. A show cause notice dated 26.8.2020 was issued. It is in reply to thereof, acknowledged to have paid the amount in instalments and therefore the demand would not be barred by limitation. 5. I have heard the learned counsel for the parties and appraised the paper book. Section 18 of the limitation Act, which is extracted herein below provides that the limitation can be only extended when there is an acknowledgement of **WP(C) NO. 1914 OF 2022** **5** ## the debt. _18. Effect of acknowledgment in writing.—_ _(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._ _(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,—_ _(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;_ _(b) the word “signed” means signed either personally or by an agent duly authorised in this behalf; and_ _(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._ 6. The acknowledgement if taken from 2020, would not extend the period of limitation as the cess has to be paid **WP(C) NO. 1914 OF 2022** **6** within a period of 30 days of the construction of the building, which was allegedly due in 2013 and the assessment order was passed in 2015, and limitation expired in 2018. Thus the show cause notice issued in 2020 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.P2 and P3 are hereby quashed. Writ petition stands allowed. sab Sd/- **AMIT RAWAL JUDGE** **WP(C) NO. 1914 OF 2022** **7** ## **APPENDIX OF WP(C) 1914/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO.1649/2014 OF SRO, KOTTAPPADY. Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DATED 23.10.2021 UNDER SECTION 7 OF THE REVENUE RECOVERY ACT ISSUED BY THE 3RD RESPONDENT. Exhibit P3 TRUE COPY OF THE DEMAND NOTICE DATED 27.10.2021 UNDER SECTION 34 OF THE REVENUE RECOVERY ACT ISSUED BY THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE ASSESSMENT NOTICE NO.C14594/13 DATED 14.1.2015 OF THE 1ST RESPONDENT. Exhibit P5 TRUE COPY OF ORDER NO.C1-4594/13 DATED 8.7.2015 ISSUED BY THE 1ST RESPONDENT. RESPONDENT EXHIBITS - Annexure ANNEXURE R1(a):True Copy of the building permit No.BA 141/10-11 dated 24.07.2013 of Guruvayoor Municipality - Annexure ANNEXURE R1(b): True Copy of the occupancy Certificate of Guruvayoor Municipality - Annexure ANNEXURE R1(c): True copy of the assessment notice No.C1-4594/2013 dated 18.02.2014 - Annexure ANNEXURE R1(d): True copy of the Form1 dated 15.12.2014 **WP(C) NO. 1914 OF 2022** **8** |Annexure|ANNEXURE R1(e): True copy of the| |---|---| ||acknowledgment due for Exhibit P5| |Annexure|ANNEXURE R1(f): True copy of the show| ||cause notice No. C1-4594/13 dated| ||26.08.2020 issued to the petitioner| |Annexure|ANNEXURE R1(g): True copy of the letter| ||dated 05.10.2020|