Kerala High Court
Midland Engineering And Contracting ... vs Kerala Water Authority on 15 December, 2023
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945
WP(C) NO. 42371 OF 2023
PETITIONER:
MIDLAND ENGINEERING AND CONTRACTING COMPANY
REP. BY ITS MANAGING PARTNER, VARIKODAN BUILDING,
VALIYAVARAMBU ROAD, DOWN HILL.P.O., MALAPPURAM - 676519
P.SHANES METHAR
N.KRISHNA PRASAD
RESPONDENTS:
1 KERALA WATER AUTHORITY
REP. BY ITS MANAGING DIRECTOR, JALABHAVAN,
VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033
2 THE SUPERINTENDING ENGINEER
O/O. THE SUPERINTENDING ENGINEER, KERALA WATER
AUTHORITY, PH - CIRCLE-KOZHIKODE, MALAPARAMBA.P.O.,
KOZHIKODE, PIN - 673009
3 THE EXECUTIVE ENGINEER, O/O. EXECUTIVE ENGINEER KERALA
WATER AUTHORITY, PROJECT DIVISION-KOZHIKODE
MALAPARAMBA.P.O., KOZHIKODE, PIN - 673009
4 KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD
REP. BY ITS CHAIRMAN, NIRMAN BHAVAN,
METTUKKADA,THYCAUD.P.O., THIRUVANANTHAPURAM, PIN -
695014
SRI.P.M.JOHNY - SC.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 42371 OF 2023
2
JUDGMENT
The petitioner is stated to be a company engaged by the Kerala Water Authority (KWA).
2. The specific case of the petitioner is that they have been contracted with the 'KWA' only to supply materials for pipeline works being carried on by them; and that they have no connection with such construction work, or its allied performance. They argue that, obviously, therefore, no "Cess" under the Kerala Construction Workers Welfare Fund Act, could have been imposed against them, since the contracts entered into by them have no relation to the construction work at all, or to the construction workers.
3. The petitioner says that, however, in spite of this, 1% of their bill amount is sought to be now deducted towards "Cess" under the "KCWWF"; and consequently, that they have been constrained to approach this Court, through this writ petition. They assert that their contentions are supported by the judgments of this Court in Poulose and others v. State of Kerala and others [1993 (3) ILR Kerala 675] and Kerala Construction WWF Board v. State of Kerala [1995 (2) KLT 724].
4. Sri.P.M.Johny - learned Standing Counsel for the WP(C) NO. 42371 OF 2023 3 'KWA', however, in response to the afore submissions of Sri.P.Shanes Methar - learned counsel for the petitioner, argued that, since the petitioner is a contractor under the 'KWA', their obligation to pay "Cess" under the "KCWWF" is unmistakable and unavoidable. He argued that, as long as the petitioner is involved in construction works, they certainly have to pay "Cess" and they cannot refuse it in any manner whatsoever.
5. It is luculent from the afore rival positions that there is factual disputation as to the nature of the contracts entered into by the petitioner with the 'KWA'. While they maintain that they are to only supply materials, without having any participation in the actual construction work; the 'KWA' appears to take the stand that, even the supply of materials is part of the construction work.
6. However, it must be borne in mind that "KCWWF" Scheme has a particular ambit to it and its purlieus are also well defined. It is only if all the criteria thereunder are satisfied, will the obligation of a contractor to pay "Cess" thereunder be attracted.
7. In the case at hand, as I have already said above, it is the specific contention of the petitioner that they only supply WP(C) NO. 42371 OF 2023 4 materials and have no part in the construction work. If this be so, certainly, it is a matter which the Superintendent or such other competent Authority of 'KWA' must consider, before imposing "Cess" upon them, through an automatic deduction from their bills.
8. When there is a clear factual dispute as afore, it would not be proper for one of the contracting parties unilaterally to impose a detriment on the other, citing that they are liable to pay "Cess", without even making an assessment of the same and without affording them an opportunity of being heard.
In the afore circumstances, I allow this writ petition and set aside impugned proceedings and direct the competent Authority of the 'KWA' to hear the petitioner and assess their claim, that they are not liable to pay "Cess" under the "KCWWF" Act because, they only supply materials and not concerned with the construction work.
The afore shall be done, after affording the petitioner an opportunity of being heard and after assessing their contentions and the germane documentary materials; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible.
This shall be done also adverting specifically to the WP(C) NO. 42371 OF 2023 5 declarations in the afore cited precedents.
Needless to say, until such time as the afore is done and the resultant orders communicated to the petitioner, action to recover any amount from their Bill amounts towards "Cess" under the "KCWWF Act", will stand deferred; and will be taken forward only after the said orders are communicated to them and in terms of the decisions will be arrived at.
As a corollary, if, through the afore exercise, it is to be found that "Cess" under the "KCWWF Act" cannot be improved against the petitioner, then the amounts already collected from them under such head will be returned without any avoidable delay.
Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 42371 OF 2023 6 APPENDIX OF WP(C) 42371/2023 PETITIONER EXHIBITS ExhibitP1 A TRUE COPY OF THE E-TENDER NO .
SE/PHC/KKD/40/2022-23 DATED 26.8.2022 PUBLISHED BY THE SECOND RESPONDENT ExhibitP2 A TRUE COPY OF THE WORK ORDER NO.
2356/D6/2022/PHC-KKD DATED 28.12.2022 (TOGETHER WITH THE ACCEPTED SCHEDULE) ISSUED BY THE SECONDRESPONDENT ExhibitP3 A TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT NO.SE/PHC/KKD/ 42/2022-2023 DATED 12/1/2023 ExhibitP4 A TRUE COPY OF THE CB3 VOUCHER PERTAINING TO CC FIRST & PART BILL DATED 11.8.2023 ExhibitP5 A TRUE COPY OF THE REPRESENTATION DATED 12.12.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT ExhibitP6 A TRUE COPY OF THE JUDGMENT DATED 4.12.2023 IN W.P (C) NO.39649 OF 2023