Calcutta High Court (Appellete Side)
Raa Contractors & Builders ... vs State Of West Bengal And Others on 5 October, 2023
D/L. 6.
October 5, 2023.
MNS.
WPA No. 14907 of 2023
Raa Contractors & Builders Private Limited
Vs.
State of West Bengal and others
Mr. Manjit Singh,
Mr. Biswajit Mal,
Mr. Abhishek Bagal
... for the petitioner.
Mr. Nabhajit Prasad Basu,
Ms. Mousumi Banerjee
...for the State.
Mr. Debanjan Mukherji
...for the WBSEDCL.
1. The dispute which arises in the present writ
petition is regarding the alleged non-payment
of the GST component of the bills raised by
the petitioner for work done by the petitioner in
terms of a contract awarded on September 5,
2017.
2. Learned counsel appearing for the petitioner
places reliance on the annexures to the writ
petition and the affidavit-in-reply of the
petitioner to indicate that all the bills and the
documents pertaining to payment of the GST
2
component by the petitioner have been
annexed to the said pleadings.
3. Despite having raised such bills, the
respondent authorities have not disbursed the
due amount to the petitioner, which is alleged
to be to the tune of Rs.14,48,633/-.
4. Learned counsel for the respondent
authorities submits that the work done is of
the pre GST era and, as such, the respondent
authorities are not liable to reimburse such
GST component to the petitioner.
5. Learned counsel also places reliance on a
Schedule of Rates effective from November 1,
2017, annexed at page 22 of the affidavit-in-
opposition and submits that if not specifically
indicated in the items themselves, the rates
appearing in the schedule are inclusive of cost
of all supply, carriage, etc. and all other
incidental works involved, but exclusive of
GST. By placing reliance on the said
expression, it is argued that GST component
was excluded from the said Schedule of
Rates.
6. Learned counsel for the respondents also
places reliance on an unreported co-ordinate
Bench judgment dated August 24, 2022
passed in WPA 18512 of 2022 in support of
his contentions.
7. Learned counsel for the respondent also
challenges the maintainability of the writ
petition.
8. Learned counsel for the petitioner, while
dealing with the maintainability issue, cites
Unitech Limited and others Vs. Telengana
State Industrial Infrastructure Corporation
(TSIIC) and others reported at 2021 SCC
OnLine SC 99, in particular, paragraphs 38 to
41 thereof. It is submitted that since public
interest is involved, the respondent authorities
being public authorities cannot avoid of
judicial scrutiny under Article 226 of the
Constitution of India.
9. The objection as to maintainability cannot but
be turned down, since learned counsel for the
petitioner is justified in arguing that the
respondents, being public authorities, have to
be fair of a higher standard in comparison to
ordinary employers. That apart, an ingredient
of public law is involved in the present case as
well, since although the petitioner entered into
a private contract with the respondents, the
same was for discharging public duty for the
West Bengal State Electricity Distribution
Company Limited.
10. Entering into the merits of the contentions of
the parties, the present case is squarely
covered by the post GST era.
11. The Notification dated August 16, 2017 issued
by the Government of West Bengal, Finance
Department, Audit Branch annexed to the
affidavit-in-opposition of the respondents
clearly delineates the pre and post GST eras,
the cut-off date being July 1, 2017. In the
present case, the contract awarded to the
petitioner was dated September 5, 2017 and,
as such, falls within the post GST era.
12. The reliance of the respondents on the
Schedule of Rates is misplaced, since the
Schedule of Rates merely mentions that the
said schedule is exclusive of GST.
13. However, the expression "exclusive" is neither
here nor there and does not fix the liability on
anybody to pay the GST component, but
merely indicates that the GST component is
not included in the Schedule of Rates
mentioned therein.
14. As per law, the liability to pay GST component
is fixed on the petitioner-contractor at the first
instance which is recoverable from the
employer, that is the, respondent authorities,
within the contemplation of the Notification
dated August 16, 2017 itself.
15. Hence, there cannot be any doubt that the
petitioner, having paid the GST component, is
entitled to have the same reimbursed from the
respondent authorities.
16. The unreported judgment cited by the
respondent authorities does not help the
respondents in any manner, since no ratio or
proposition of law was laid down therein.
17. In the said order, the learned Single Judge
merely directed a final decision to be taken by
the Additional Chief Secretary with regard to
the impact of unforeseen additional tax burden
on government contracts since the
introduction of the GST.
18. Considering such perspective as indicated
above, the petitioner is entitled to
reimbursement of the entire GST component
paid by the petitioner in respect of the work
awarded by the respondent authorities.
19. Accordingly, WPA No. 14907 of 2023 is
allowed, thereby directing the respondent
authorities to disburse the entire dues of the
petitioner, including GST paid by the
petitioner, taking note of all the annexures to
the present pleadings of the parties.
20. Such disbursal shall be done by the
respondent authorities in favour of the
petitioner as expeditiously as possible,
positively within November 17, 2023.
21. There will be no order as to costs.
22. Urgent photostat certified copies of this order,
if applied for, be made available to the parties
upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
