Kerala High Court
Koya And Company Construction Limited vs Kerala Water Authority on 21 December, 2023
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
WP(C) NO. 43417 OF 2023
PETITIONER:
KOYA AND COMPANY CONSTRUCTION LIMITED
REPRESENTED BY ITS MANAGING DIRECTOR,
12-2-831/38/38, 72 MIGH, MEHDIPATNAM,
HYDERABAD, TELANGANA., PIN - 500028
BY ADVS.
P.SHANES METHAR
N.KRISHNA PRASAD
RESPONDENTS:
1 KERALA WATER AUTHORITY, REPRESENTED BY ITS
MANAGING DIRECTOR, JALA BHAVAN, OBSERVATORY HILLS,
VELLAYAMBALAM, THIRUVANANTHAPURAM., PIN - 695033
2 THE SUPERINTENDING ENGINEER, OFFICE OF THE
SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY,
PUBLIC HEALTH CIRCLE- KANNUR, THANA,KANNUR,
PIN - 670012
3 THE EXECUTIVE ENGINEER, O/O. THE EXECUTIVE
ENGINEER, KERALA WATER AUTHORITY, PROJECT
DIVISION-KANNUR, THANA, KANNUR, PIN - 670012
4 KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD
REP. BY ITS CHAIRMAN, NIRMAN BHAVAN, METTUKADA,
THYCAUD.P.O., THIRUVANANTHAPURAM., PIN - 695014
SRI. P.M.JOSHY, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 43417/23
2
JUDGMENT
The petitioner is stated to be a Works Contractor, engaged by
the respondent - 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 (hereinafter referred to as 'KCWWF Act'
for short), 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 Act'; 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 'KWA',
however, in response to the afore submissions of Sri.P.Shanes
Methar - learned counsel for the petitioner, argued that, since
petitioner is a contractor under the 'KWA', their obligation to pay
'Cess' under the 'KCWWF Act' 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 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 the 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
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 to be arrived at.
As a corollary, if, through the afore exercise, it is to be found
that 'Cess' under the 'KCWWF Act' cannot be imposed against the
petitioner, then the amounts already collected from them under such
head will be returned without any avoidable delay.
Sd/-
RR DEVAN RAMACHANDRAN
JUDGE
APPENDIX OF WP(C) 43417/2023
PETITIONER EXHIBITS
ExhibitP1 A TRUE COPY OF THE E-TENDER NO 63/2023-
24/PHC/KNR DATED NIL OF THE SECOND
RESPONDENT OF THE SECOND RESPONDENT
ExhibitP2 A TRUE COPY OF THE LETTER OF ACCEPTANCE
DATED 16/09/2023(TOGETHER WITH THE
ACCEPTED SCHEDULE) ISSUED BY THE SECOND
RESPONDENT
ExhibitP3 A TRUE COPY OF THE RELEVANT PAGES OF
AGREEMENT NO.133/2023-24/SE/PHC/KNR DATED
07/10/2023
ExhibitP4 A TRUE COPY OF THE REPRESENTATION DATED
5.12.2023 SUBMITTED BY THE PETITIONER
BEFORE THE SECOND RESPONDENT
ExhibitP5 A TRUE COPY OF THE JUDGMENT DATED
4.12.2023 IN W.P (C) NO.39649 OF 2023 AND
CONNECTED CASES OF THIS HON'BLE COUR
