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
'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
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
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
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
