Kerala High Court
M/S Midland Engineering And ... vs Kerala Water Authority on 23 February, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
WP(C) NO. 7136 OF 2024
PETITIONER:
M/S.MIDLAND ENGINEERING AND CONTRACTING COMPANY
REPRESENTED BY ITS MANAGING PARTNER, VARIKODAN
BUILDING, VALIYAVARAMBU ROAD, DOWN HILL P.O.,
MALAPPURAM, PIN - 676519
BY ADVS.
P.SHANES METHAR
N.KRISHNA PRASAD
RESPONDENTS:
1 KERALA WATER AUTHORITY
REP. BY ITS MANAGING DIRECTOR, JALA BHAVAN,
VELLAYAMBALAM, THIRUVANTHAPURAM, PIN - 695055
2 THE SUPERINTENDING ENGINEER
OFFICE OF THE SUPERINTENDING ENGINEER,
KERALA WATER AUTHORITY, PH CIRCLE,
KOZHIKODE, PIN - 673009
3 THE EXECUTIVE ENGINEER
OFFICE OF THE EXECUTIVE ENGINEER, KERALA WATER
AUTHORITY, PROJECT DIVISION, 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 FOR R1 TO R3,
SRI. C.R.SYAMKUMAR, FOR R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 7136 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.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/24.2
APPENDIX OF WP(C) 7136/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE E- TENDER NO.SE/PHC/
KKD/23/2023-24 DATED 23/05/2023 PUBLISHED
BY THE SECOND RESPONDENT
Exhibit P2 A TRUE COPY OF THE LETTER OF ACCEPTANCE
DATED: 0 9 . 0 8 . 2023 (TOGETHER WITH THE
ACCEPTED SCHEDULE) ISSUED BY THE SECOND
RESPONDENT
Exhibit P3 A TRUE COPY OF THE RELEVANT PAGES OF
5 / 0 8 /2023
Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED
14.2.2024 SUBMITTED BY THE PETITIONER
BEFORE THE SECOND RESPONDENT
Exhibit P5 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 COURT
