THE VRINDAVAN APARTMENTS PVT. LTD v. THE TAHSILDAR (RR)

SRI. BIMAL K.NATH, SR.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W. P. (C) No. 38518/2015 ..2.. AMIT RAWAL, J. ========================= W. P. (C) No. 38518 of 2015 ========================= Dated this the 22nd day of January, 2024 J U D G M E N T Communications dated 26.8.2015 and 11.12.2015, Exts.P2 & P3, to the petitioner are under challenge in the present Writ Petition.

2. Facts leading to the filing of the writ petition, in brief, are as follows: Petitioner company had been engaged in the construction of Apartments and Villas in the year 2015 and for construction of work of 'Vrindavan Palace', Palace Road, Thrissur, had engaged the services of a contractor K.N.Elias, believing that they are not liable to pay or submit any return under the Building and Other Construction Workers Welfare Cess Act, 1996, as the liability would be of the Contractor. However, flabbergasted to receive a notice in March, 2004, directing for payment of Rs.3,65,810/- 1% of the expenses for the construction. Appeal filed against the said notice was dismissed on the ground of not depositing 1% of the amount, which is the statutory requirement of law. The notice was W. P. (C) No. 38518/2015 ..3.. then assailed in this Court in WP(C).No.14377/2005. Learned Single Bench did not accept the contention of the petitioner with regard to the liability of the contractor to pay the Cess as they were other liabilities of the petitioner and noticed that the liability had scaled down to Rs.1,43,000/- from a total demand of Rs.3,65,000/- as shown in the previous assessment order. The facility of instalment as sought was accepted and liberty was granted to pay at the rate of Rs.70,000/- per month on or before the 7th of every month commencing from March, 2010.

3. Aforementioned order of the Single Bench was assailed before the Division Bench of this Court in W.A.No.435/2010, which was dismissed as per Ext.P1 judgment dated 21.1.2015 rejecting the contention of the petitioner and the judgment of the Single Bench was upheld.

4. The Division Bench of this Court, while dismissing the Appeal, in para 11 held as below: “11. Learned counsel for the petitioner, however, would submit that no attempt is being made for recovering the amount from the Contractor. We make it clear that if any amount is recovered from the Contractor by way of revenue recovery proceedings, the same shall be adjusted towards the total liability and a fresh demand be made against the petitioner to which the petitioner is liable to pay. Since the appellant had not availed of the instalment facility as directed by the learned Single Judge, fresh demand can be made by the revenue authorities and proceed further in accordance with law.” W. P. (C) No. 38518/2015 ..4..

5. Form-10 demand prior to attachment of Ext.P2 and order Ext.P3 have been issued in compliance of the judgment of this Court as they are dated 26.8.2015 and 11.12.2015 whereas the Division Bench passed the judgment in the Writ Appeal on

21.1.2015. This Court, while admitting the Writ Petition, granted liberty to the petitioner to deposit an amount of Rs.1,72,810/- within a period of 2 months from 18.12.2015. On 9.3.2016, it was noticed that the amount as ordered above had been deposited and the interim order was extended.

6. The contention of the respondent is that Ext.P3 has been issued in terms of the directions of the Division Bench of this Court and the demand was of Rs.1,72,810/-. Once the petitioner has already deposited the amount, nothing survives.

7. I have heard the counsel for the parties and appraised the paper book. Both the Single Bench or Division Bench of this Court did not accept the contention of the petitioner viz-a-viz the payment of the Cess to the extent of 1% of the expense for construction by the contractor and justified the stand of the respondent raising demand upon the petitioner. Exts.P2 & P3 have been issued in pursuance of the observations accepted by the W. P. (C) No. 38518/2015 ..5.. Division Bench. The petitioner has not been able to make out any different case than the one as raised in the previous writ petition. This Court is not being apprised as to whether any amount is due except the one referred to in Ext.P3, which is stated to have been deposited as per the interim order.

8. Interim orders passed by this court dated 18.12.2015 and 9.3.2016 read as follows: “Admit. The learned Government Pleader takes notice for respondents 1 and 2. Post on 04-01-16. There will be an interim stay of further proceedings pursuant to Ext.P3, on condition that, the petitioner pays an amount of Rs.1,72,810/- (Rupees one lakh seventy two thousand eight hundred and ten) within two months from today.” Interim order dated 9.3.2016: “It is submitted by the learned counsel for the petitioner that the amount to be paid as directed in the interim order dated 18.12.2015, has been paid. Taking note of the said submission of counsel for the petitioner, the interim order is extended by one month.”

9. However, the demand at the rate of 24% of interest from 6.1.2010, in my view, is not justified for, an opportunity of hearing has not been given to the petitioner. Thus the demand of interest is hereby quashed. The respondents are directed to take a call with regard to the payment of interest, if any, to the petitioner W. P. (C) No. 38518/2015 ..6.. by referring to the provisions. Petitioner shall be at liberty to place on record all the material expressing his predicament for not being charged with the interest and thereafter, respondents shall take a call within a period of 3 months from the date of receipt of a certified copy of this judgment. Writ Petition stands disposed of. Sd/- AMIT RAWAL, JUDGE MMG W. P. (C) No. 38518/2015 ..7.. APPENDIX OF WP(C).NO.38518/2015 PETITIONER'S EXHIBITS: EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 21.01.2015 IN WA NO.435 OF 2010 TRUE COPY OF THE NOTICE DATED 26.08.2015 ISSUED BY THE DEPUTY TAHSILDAR (RR) THRISSUR. TRUE COPY OF THE ORDER NO.C2-3682/02 DATED 11.12.2015 BY THE DEPUTY LABOUR OFFICER, THRISSUR TO THE TAHASILDAR (RR), THRISSUR.