IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.49516 OF 2016 (GM-RES) BETWEEN:
SHRI SHRINATH HEBBAR S/O LATE SRINIVASA HEBBAR, PROPRIETOR, M/S LAND TRADES, BUILDERS AND DEVELOPERS, 1ST FLOOR, NEW MILAGRIS MANSION, FALNIR ROAD, BANGALORE-575001 (By Mr. ANANDARAMA K, ADV.) AND:
1. GOVERNMENT OF KARNATAKA DEPARTMENT OF LABOUR, VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE-560001 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. LOBOUR OFFICER AND CESS ASSESSMENT OFFICEER UNDER THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT, 1996, OFFICE OF THE LABOUR OFFICER AND CESS ASSESSMENT OFFICE UNDER THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT, 1996, SUB DIVISION-2, PRAKRUTI COMPLEX, … PETITIONER 2ND FLOOR, OPPOSITE TO BHARAT BEEDI WORKS, KADRI ROAD, MANGALORE-575003.
(By Mr. Y D HARSHA ADV. FOR R1 & R2) - - -
… RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN CASE NO.CWWB/KaAa/DK-2/REG.NO.4/2012-13 AND CASE NO.CWWB/KaAa/DK-2/REG.NO.15/2012-13, ON THE FILE OF R-2 QUASH THE ORDER DTD.15.6.2016 VIDE ANNEX-J AND RECTIFICATION ORDER DTD.27.6.2016 VIDE ANNEX-K PASSED BY R-2 IN CASE NO.CWWB/KaAa/DK-2/REG.NO.4/2012-
13 AND CASE NO.CWWB/KaAa/DK-2/REG.NO.15/2012-13 AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.Anandarama, learned counsel for the petitioner.
Sri.Y.D.Harsha, learned counsel for the respondents.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition, the petitioner inter alia seeks quashment of the order dated 15.06.2015 as well as 27.06.2016 passed by respondent No.2 under the provisions of the Building and Other Construction Workers’ Welfare Cess Act, 1996 and the Rules framed thereunder.
4. Learned counsel for the petitioner has raised a similar contention that Rule 7 of Rules framed under the Act provides for procedure of assessment for levy of cess. Whereas, Section 9 of the Act provides a mechanism for levy of penalty. It is further submitted that the impugned orders have been passed in flagrant violation of the provisions contained under Section 9 and Rule 7 of the Rules and are procedurally ultra vires.
5. Learned Additional Government Advocate was unable to point out from the record that either procedure prescribed under Rule 7 or Under Section 9 has been followed before passing the order.
6. I have considered the submissions made on both the sides. Admittedly, the impugned orders have been passed without following the procedure prescribed under Rule 7 and Section 9 of the Act, the impugned orders are therefore procedurally ultra vires and cannot be sustained in the eye of law. It is accordingly quashed and set aside. However, the respondents are granted the liberty to initiate the proceedings, if so advised against the petitioner after following the procedure prescribed under Rule 7 and Section 9 of the Act in accordance with law. Needless to state that in case the proceedings are initiated by the respondents, the petitioner shall be at liberty to raise call contentions which may be available to him under the law. Needless to state that in case the respondent initiated the proceedings afresh against the petitioner within a period of one month from the date of receipt of certified copy of the order passed today, they shall retain the 50% of the amount deposited by the petitioner in compliance of the interim order passed by this Court till disposal of the proceedings.
A copy of this order shall be furnished to learned Additional Government Advocate.
With the aforesaid direction the petition is disposed of.
Sd/- JUDGE SS