Madras High Court
The Chief Engineer vs Subaya Constructions Company ... on 1 February, 2022
W.A(MD)No.1267 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.02.2022
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.A.(MD)No.1267 of 2021
and C.M.P.(MD)No.5316 of 2021
1. The Chief Engineer,
TWAD Board,
No.1/1, Samabakulam,
Ganesh Nagar, Opp. Mattuthavani Bus Stand,
Melur Road, Madurai-625 007.
2. The Executive Engineer,
TWAD Board, Sewerage Division,
Karaikudi. .. Appellants/Respondents 1&2
Vs.
1. SUBAYA CONSTRUCTIONS COMPANY LIMITED,
Rep. by its Director S.Meenakshi,
New No.21 (Old No.26),
Soundarapandian Street,
Ashok Nagar, Chennai-600 083. .. Respondent 1/Petitioner
2. The Superintendent of GST,
Vadapalani North Range,
Chennai. .. Respondent 2/Respondent 3
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 08.03.2021 in W.P.(MD)No.15967 of 2020.
***
For Appellants : Mr.B.Vijay Karthikeyan
Standing Counsel
For Respondents : Mr.Vijay Shankar
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W.A(MD)No.1267 of 2021
JUDGEMENT
PUSHPA SATHYANARAYANA, J.
The respondents 1 and 2 in the writ petition instituted this appeal
against the order of the writ Court allowing W.P.(MD)No.15967 of 2020,
which was filed by the first respondent herein.
2. The writ court allowed the said writ petition, after
appreciating the factual position and relying upon the order dated
01.08.2019 passed by another learned Single Judge in W.P.Nos.21196
and 21198 of 2019, wherein also, the petitioner is one and the same.
3. The short facts of the case of the writ petitioner before the
writ Court was that it entered into a contract with the appellants Board
for laying Under Ground Sewerage works for Karaikudi Municipality,
Sivagangai District, on 25.01.2016, which includes sales tax component,
but due to introduction of GST Regime on and from 01.07.2017, the tax
portion of the contract had to be revisited. The Government issued
G.O.Ms.No.296, Finance (Salaries) Department, dated 09.10.2017 for
this purpose and the applicability as to whether paragraph 10(a) or 10(b)
or 10(c) was the subject matter of debate. The writ petitioner's request
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W.A(MD)No.1267 of 2021
was not considered necessitating it to institute the petition seeking
Mandamus, which was allowed by this Court.
4. The learned Standing Counsel appearing on behalf of the
appellants contended that the writ petition was filed by the first
respondent herein only to circumvent the issues raised by the GST
Department with regard to non-payment of the tax and the resultant
interest that may be imposed on them. It is also submitted that the
appellants remitted the GST component, which was deducted at 2% on
each running bill, with the tax department and they have no due
whatsoever. It is submission that the writ Court committed an error in
placing reliance on the order date 01.08.2019 made in W.P.Nos.21196
and 21198 of 2019, which was a consent order of another Department
and the same cannot be applied to the appellant, blindly. The learned
counsel also claimed that the writ Court failed to appreciate the fact that
the first respondent had voluntarily entered into a supplementary
agreement on 24.05.2018, which has a binding effect and they should
not be allowed to raise imaginary submissions.
5. Heard the learned counsel appearing on behalf of the first
respondent and perused the materials available on record.
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W.A(MD)No.1267 of 2021
6. The Writ Court relied upon paragraphs 21 and 22 of the order
of another learned Single Judge dated 01.08.2019 made in W.P.Nos.
21196 and 21198 of 2019, which were filed by the very same petitioner,
who is the first respondent herein, against Salem City Municipal
Corporation for a similar work. The said paragraphs, as has been
reproduced in the impugned order, read as under :
"21. Therefore, the parties will not stand governed by
paragraphs 10(a) and paragraph 12 of aforesaid G.O.Ms.No.296,
Finance (Salaries) Department, dated 09.10.2017.
22. The exercise of quantification qua para 10(a) shall be
completed by both the parties as expeditously as possible within
12 weeks from the date of receipt of a copy of this order. Though
obvious it is made clear that work under the aforesaid contract
shall continue without being impeded by this exercise."
7. In paragraph 20 of the said order, the learned Single Judge
concluded qua dates with respect to the applicability of the subject
Government Order in the following manner :
"20. Here again, the task in instant writ petition is cut out
as there is no disputation that paragraph 10(a) is applicable up to
30.06.2017 and paragraph 12 is applicable post 30.06.2017, i.e.,
on and from 01.07.2017. ...."
8. Admittedly, the said order was not put to challenge and
attained finality. Merely because the appellant is not a Corporation, but a
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W.A(MD)No.1267 of 2021
Board under the aegi s of the State Government, they cannot claim
exemption from the said order, as it is binding on them as well and
rightly the writ Court placed reliance on the said order.
9. Though it is stated that the writ petitioner entered into a
supplement agreement and they are bound by that, the writ petitioner on
the even date of agreement, i.e., on 24.05.2018, addressed a letter to
the appellants raising objections, which was followed by the letters dated
29.01.2019, 30.07.2019, 22.08.2019, 18.12.2019, 15.05.2020 and
13.08.2020. But neither there is denial of the receipt of those letters nor
the contents and pleadings thereon by the appellants. In such backdrop,
the writ Court rightly took note of cumulative circumstances under which,
the writ petitioner would have been placed and this Court finds no other
reason to interfere with the said finding of the writ Court.
10. Though it is brought to the notice of this Court that the writ
petitioner was paid over and above the actual GST, it is for the parties to
workout the amounts, as has been directed by the Writ Court and arrive
at a consensus.
11. In the upshot, the Writ Appeal fails and the same is dismissed
as devoid of merits upholding the order of the learned Single Judge. The
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W.A(MD)No.1267 of 2021
appellants are directed to comply with the directions issued by the
learned Single Judge within a period of eight weeks from the date of
receipt of a copy of this judgment. The parties shall bear their own costs.
Consequently, connected miscellaneous petition is closed.
(P.S.N., J.) (P.V., J.)
01.02.2022
Index : Yes / No
Internet: Yes
gg
To
1. The Chief Engineer,
TWAD Board,
No.1/1, Samabakulam,
Ganesh Nagar, Opp. Mattuthavani Bus Stand,
Melur Road, Madurai-625 007.
2. The Executive Engineer,
TWAD Board, Sewerage Division,
Karaikudi.
3. The Superintendent of GST,
Vadapalani North Range,
Chennai.
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W.A(MD)No.1267 of 2021
PUSHPA SATHYANARAYANA, J.
AND
P.VELMURUGAN, J.
gg
W.A.(MD)No.1267 of 2021
01.02.2022
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