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2023 Supreme(Online)(KER) 4766
HIGH COURT OF KERALA
P.V. KUNHIKRISHNAN, J
HARI – Appellant
Versus
THE DISTRICT COLLECTOR ERNAKULAM DSITRICT – Respondent
WP(C) 13818/2012
SRI.C.DILIP, SRI.P.N.VIJAYAN NAIR, GOVERNMENT PLEADER SRI.K.M.FAISAL
Due process requires that objections to assessments be considered and that parties receive notice of final decisions before recovery proceedings commence.
Headnote:
Welfare - Building And Other Construction Workers' Welfare Cess Act - 1996, Sections Not Specified - The court reiterated the necessity of considering objections raised by parties in the assessment process and underscored the importance of providing a fair hearing before revenue recovery actions are initiated.
Fact of the Case:
The petitioners owned land and a residential building, constructed at a cost of Rs.5 lakhs, but faced a cess assessment based on granite flooring prices despite their building being of lower cost. After disputing the assessment, they received recovery notices, prompting the writ petition.
Finding of the Court:
The court found that the final assessment order was not served to the petitioners, and their objections were not considered, warranting a reevaluation of the case and quashing the revenue recovery notices.
Issues: Whether the assessment and subsequent revenue recovery were lawful given the lack of notice for the final assessment and consideration of objections by the petitioners.
Ratio Decidendi: The court emphasized that due process must be followed, including serving final orders and considering objections, before initiating recovery proceedings.
Final Decision: The writ petition was allowed, quashing the assessment order and revenue recovery notices, with directions for reconsideration of the case.
JUDGMENT
This writ petition is filed with following prayers:
i. Call for the records of the case leading up to Exhibits P2 & P3 and set aside the same by issuing a writ of certiorari or any other writ order or direction.
ii. Issue a writ of mandamus directing the third respondent to re- assess the building under the provisions of The Building And Other Construction Workers' Welfare Cess Act , 1996 after considering the objections raised by the first petitioner and also after giving notice to the purchaser of the building under Exhibit P1.
iii. Issue any other writ order or direction as this Hon'ble court may deem fit and proper in the facts and circumstances of the case.
(SIC)
2. According to the petitioners, they were in joint ownership of 10.500 cents of land comprised in survey Nos.1142/11B/2 and 1142/11A of Kothamangalam Village and a residential building was constructed therein. The residential building in the property was constructed in the year 1999 and according to them, they spent a sum of about Rs.5 lakhs for the construction purpose. It is the case of the petitioners that on 15.09.2003 they transferred the property in the name of Mr.P.P.Varghese as per registered sale deed No.4862/2003 of Kothamangalam S.R.O for a total sale consideration of Rs.4,80,000/- out of which Rs.3 lakhs is the value of the building shown. Ext.P1 is the sale deed. It is submitted that the building which was constructed by the petitioners in the year 1999 was an ordinary low cost house with cement concrete flooring. Under the provisions of the Building and Other Construction Workers' Welfare Cess Act and the rules framed there under, cess is calculated based on the materials used for the construction of the floor. But, according to the petitioners, the 3rd respondent assessed the cess for Rs.14,338/- and it was arrived on taking the construction cost at the rate of Rs.8,800/- per sq.meter, which is the tariff fixed for granite flooring as per notification. On receipt of notice of assessment in the year 1999, the petitioners filed their objection stating that the value of the building is not correctly assessed by producing materials is the contention raised in the writ petition. After filing objections against the notice of assessment, it is the case of the petitioners that they did not receive any intimation, notice or order from the assessing authority and no enquiry was conducted by the assessment officer till the property was transferred in the year 2003. Thereafter the petitioners received Exts.P2 and P3 revenue recovery notice to pay an amount of Rs.14,338/- with interest at the rate of 24% from 05.11.2009. The notices issued by the 2nd respondent were served to the petitioners through respondents 3 and 4. Aggrieved by the same, this writ petition is filed.
3. Heard the learned counsel for the petitioners and the learned Government Pleader. Even though notice was issued to the 5th respondent, there is no appearance.
4. The counsel for the petitioners reiterated the contentions raised in the writ petition. The Government Pleader takes me through paragraph 8 of the counter affidavit and submitted that Ext.R4(f) is the final assessment order based on which the revenue recovery proceedings were initiated.
5. This Court considered the contentions of the petitioners and the respondents. The petitioners’ case is that, they submitted objection to the notice of assessment and the same is not considered. It is also the case of the petitioners that no final assessment order was served to the petitioners and the petitioners only received the revenue recovery proceedings after submitting their objection. The petitioners have got a contention that the assessment made by the assessing authority is not in accordance to law and the subsequent transferee is also liable to pay the cess amount. I do not want to make any observation about the merit of the case. According to the petitioners, Ext.R4(f) is not served to the petitioners and the revenue recovery proceed
