HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE HARISANKAR v. MENON TUESDAY, THE

SRI.E.G.GORDEN, SR.G.P. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.17021 of 2023 3 2025:KER:28114 JUDGMENT The petitioner, stated to be an Educational Institution, has filed the captioned writ petition seeking to challenge Ext.P2 show cause notice followed with the subsequent proceedings at Exts.P4, P5 and P7 proceedings issued by the 3rd and 4th respondents herein, demanding the Cess payable under the provisions of the Constructions Workers Welfare Cess Act, 1996.

2. I have heard Sri.Tony George Kannanthanam, the learned counsel for the petitioner as well as Sri.E.G.Gorden, the learned senior Government Pleader.

3. The fact that the impugned proceedings have been issued with reference to the Cess payable under the provisions of the statute referred to above, is not in dispute. The question of demanding payment of Cess and subsequent initiation of revenue recovery proceedings arise only in situation were the building is constructed after the enactment of the statute referred to above. W.P.(C)No.17021 of 2023 4 2025:KER:28114

4. Sri.Tony, the learned counsel for the petitioner invites the attention of this Court to Ext.P1 Sale Deed and the recitals contained therein to contend that the building in question was atleast 18 years old. He would also invite the attention of this Court to Exts.P10 and P11 – reply issued under the Right to Information Act, 2005, by the KSEB to contend that the building in question was one constructed in the year 1957. He would also contend that similar other documents are also available to show that the building in question was not one constructed after the appointed date. At the same time, the learned Government Pleader would invite the attention of this Court to Ext.R4(a) notice issued under the provisions of the statute followed with Ext.R4(c) assessment order to contend that it is for the petitioner to challenge the demand, before the Appellate authority under the statute. In reply, the learned counsel Sri.Tony would contend that Exts.R4(a) to (c) were never served on the petitioner, though, there is an acknowledgment produced along with the counter affidavit. W.P.(C)No.17021 of 2023 5 2025:KER:28114

5. I have considered the rival submissions raised by the parties as above.

6. A perusal of the reply received from the KSEB under the RTI Act, would show that the building in question, was one constructed in the year 1957. The respondents have no case that the building in question is not the one covered by Ext.P1 sale deed. Therefore, atleast from the recitals contained in Ext.P1, building was one constructed in the year 1990, as rightly contended by the learned counsel for the petitioner.

7. If that be the case, there was no requirement for having proceeded against the petitioner, with reference to the provisions of the statute.

8. At the same time, this Court notices that, there was no proper adjudication with reference to the liability of the petitioner, with reference to the date of completion of construction as noticed above. Therefore, the matter, in my opinion requires an adjudication at the hands of the 3rd respondent herein - the authority under the statute. W.P.(C)No.17021 of 2023 6 2025:KER:28114 So as to facilitate the above, Ext.R4(c) assessment order issued by the authorised officer would stand set aside.

9. The learned counsel for the petitioner would also contend that the proceedings taken for realisation of the demand is barred by limitation, under any circumstances. He would also rely on the judgment of this Court in W.P.(C)No.18827 of 2015 to contend that even if no period of limitation is prescribed, steps are to be taken within a period of three years. I am of the opinion that the question of limitation also requires a reconsideration at the hands of the adjudicated authority. So as to facilitate the afore, Ext.R4(c) assessment order would stand set aside. The adjudicating authority under the statute to consider the question as regards the date of completion of the building, as above and to decide as to whether the provisions of the statute itself will apply or not.

10. The petitioner would also to be entitled to rely on additional documents before the adjudicating authority. The question of limitation, is also to be considered by the adjudicating authority, with reference to the dictum W.P.(C)No.17021 of 2023 7 2025:KER:28114 laid down by this Court in W.P.(C)No.18827 of 2015 dated

01.08.2025. With the afore observations, this writ petition is disposed of. Needless to say Exts.P2, P4, P5 and P7 would also stand set aside. Sd/- HARISANKAR V. MENON JUDGE ANA W.P.(C)No.17021 of 2023 8 2025:KER:28114 APPENDIX OF WP(C) 17021/2023 PETITIONER EXHIBITS Exhibit-P1 Exhibit-P2 Exhibit-P3 Exhibit-P4 Exhibit-P5 Exhibit-P6 Exhibit-P7 COPY OF DOCUMENT DATED 22-8-2008 PURCHASE OF THE PROPERTY BY THE EDUCATIONAL AGENCY COPY OF NOTICE NO.C2/2014/20 DATED 21-9- 2021 ISSUED BY THE 3RD RESPONDENT COPY OF REPLY DATED 30-11-2021 BY THE PETITIONER COPY OF THE REVENUE RECOVERY NOTICE DATED 27-3-2023 FILED U/S. 34 OF THE REVENUE RECOVERY ACT. COPY OF THE REVENUE RECOVERY NOTICE DATED 27-3-2023 FILED U/S. 7 OF THE REVENUE RECOVERY ACT. COPY OF THE REPRESENTATION DATED 29-3- 2023 BY THE PETITIONER COPY OF REPLY DATED 19-4-2023 BY THE 4TH RESPONDENT. RESPONDENT EXHIBITS Exhibit R4 (a) A true copy of the notice dated 25.08.2020 issued by the fourth respondent to the petitioner Exhibit R4 (b) A true copy of the assessment notice dated 01.10.2020 issued by the fourth respondent to the petitioner Exhibit R4 (c) A true copy of the proceedings order .No. C2/2014/20 dated 20.02.2021 of the Building Cess Assessing Officer Exhibit R4 (d) A true copy of the show cause notice dated 21.09.2021 issued by the fourth W.P.(C)No.17021 of 2023 9 2025:KER:28114 respondent to the petitioner PETITIONER EXHIBITS Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 TRUE COPY OF REQUEST UNDER THE R.T.I. ACT DATED 10-2-2025 COPY OF REPLY DATED 22-2-2025 ISSUED BY THE K.S.E.B. TO THE ADMINISTRATIVE OFFICER, CENTURY EDUCATIONAL TRUST. TRUE COPY OF THE CONSUMER PROFILE DATED 22-2-2025 ISSUED BY THE KSEB TRUE COPY OF THE LAST BILL DATED 02-05- 2018 PAID BY PETITIONER TO SHOW THAT THE CONSUMER NUMBER OF THE BUILDING IN EXT.P1