Kerala High Court
M/S. Majestic Constructions vs State Of Kerala on 6 February, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 3333 OF 2024
PETITIONER:
M/S. MAJESTIC CONSTRUCTIONS
REP. BY ITS MANAGING PARTNER, DOMINIC ZACHARIAS,
S/O.P.O.ZACHARIAS, PANAMKATTU HOUSE, KARIMKUNNAM P.O.,
THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685586
BY ADVS.
GEORGE MATHEW
SUNIL KUMAR A.G
MATHEW K.T.
GEORGE K.V.
STEPHY K REGI
MEDHA B.S.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, WATER RESOURCES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 KERALA WATER AUTHORITY (KWA)
REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN,
VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033
3 THE CHIEF ENGINEER (PROJECTS & OPERATIONS)
KERALA WATER AUTHORITY (KWA), JALA BHAVAN,
VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033
4 THE SUPERINTENDING ENGINEER
OFFICE OF THE SUPERINTENDING ENGINEER, P.H. CIRCLE,
KERALA WATER AUTHORITY, KOTTAYAM, PIN - 686002
5 THE EXECUTIVE ENGINEER
KERALA WATER AUTHORITY, PROJECT DIVISION, KOTTAYAM,
KOTTAYAM DISTRICT, PIN - 686002
6 THE FINANCE MANAGER & CHIEF ACCOUNTS OFFICER
KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695033
7 THE KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD
REP. BY ITS CHAIRMAN, NIRMAL BHAVAN, METTUKKADA,
THAYCAUD POST, THIRUVANANTHAPURAM, PIN - 695014
SRI. V.V.JOSHY, SC
SRI.C.R.SYAMKUMAR - SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3333 OF 2024 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.V.V.Joshy - learned Standing Counsel for the 'KWA',
however, in response to the afore submissions of Sri.George Mathew -
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/6.2
APPENDIX OF WP(C) 3333/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF CIRCULAR NO.34148/AEE
6/2022/KWA DTD. 16.11.2022 ISSUED BY
3RDRESPONDENT
Exhibit P2 TRUE COPY OF NIT RE E-TENDER NO:
1RE32/SE/PHCK/2022-2023 WITH LAST DATE OF
01.02.2023
Exhibit P3 TRUE COPY OF TENDER NO. PHCK/A3/
1515/2019/PH1/VKT-1A DTD. 15.09.2023
Exhibit P4 TRUE COPY OF MEMORANDUM OF PAYMENTS
DTD.10.12.2023 IN RESPECT OF EXT.P2
Exhibit P5 TRUE COPY OF MEMORANDUM OF PAYMENTS DTD.
16.01. 2024 IN RESPECT OF EXT.P3
Exhibit P6 TRUE COPY OF INSPECTION AND QUALITY CONTROL
REPORT DTD.13.12.2023
Exhibit P7 TRUE COPY OF JUDGMENT DTD. 08.12.2023 IN
W.P.(C). NO. 21045 OF 2023 AND CONNECTED
CASES
Exhibit P8 TRUE COPY OF JUDGMENT DTD. 04.12.2023 IN
W.P.(C) NO. 39649 OF 2023 AND CONNECTED
CASES
