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. 43616 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
O/O. THE SUPERINTENDING ENGINEER, KERALA WATER
AUTHORITY, PUBLIC HEALTH CIRCLE, THRISSUR, HIGH ROAD,
THRISSUR, PIN - 680001
3 THE EXECUTIVE ENGINEER
OFFICE OF THE EXECUTIVE ENGINEER, KERALA WATER
AUTHORITY, PROJECT DIVISION - NATTIKA, THRISSUR,
PIN - 680566
4 KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD
REP. BY ITS CHAIRMAN, NIRMAN BHAVAN, METTUKADA,
THYCAUD, THIRUVANANTHAPURAM, PIN - 695014
SRI.P.M.JOHNY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 43616 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 ("KCWWF 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 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 the 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 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 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 imposed against the
petitioner, then the amounts already collected from them under such
head will be returned without any avoidable delay.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
MC/23.12
APPENDIX OF WP(C) 43616/2023
PETITIONER EXHIBITS
ExhibitP1 A TRUE COPY OF THE E-TENDER NO
183/SE/PHC/TSR/2023-24(RETENDER)
DATED:05.09.2023 OF THE SECOND RESPONDENT
ExhibitP2 A TRUE COPY OF THE LETTER OF ACCEPTANCE
DATED 07/11/2023(TOGETHER WITH THE
ACCEPTED SCHEDULE) ISSUED BY THE SECOND
RESPONDENT
ExhibitP3 A TRUE COPY OF THE RELEVANT PAGES OF
AGREEMENT NO.70/SE/PHC/TSR/2023-24 DATED
29/11/2023
ExhibitP4 A TRUE COPY OF THE REPRESENTATION DATED
5.12.2023 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
