Joseph John v. Kerala Water Authority and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945 ``` ## `WP(C) NO. 747 OF 2024` ## `PETITIONER:` ``` JOSEPH JOHN, AGED 55 YEARS, MONIPPILLIL HOUSE , AVOLI (PO), MUVATTUPUZHA, ERNAKULAM, PIN – 686670. ``` ``` BY ADVS. P.SHANES METHAR N.KRISHNA PRASAD ``` ## `RESPONDENTS:` ``` 1KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, OBSERVATORY HILLS, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695033. ``` ``` 2THE SUPERINTENDING ENGINEER, THE SUPERINTENDING ENGINEER P.H CIRCLE, KERALA WATER AUTHORITY KALMANDAPAM, PALAKKAD, PIN – 678001. ``` ``` 3THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, PROJECT DIVISION, KERALA WATER AUTHORITY, PALAKKAD, PIN – 678001. ``` ``` 4KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD REP. BY ITS CHAIRMAN, NIRMAN BHAVAN, METTUKADA, THYCAUD, THIRUVANANTHAPURAM, PIN – 695014. ``` ``` BY ADV.P.M.JOHNY, SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 747 OF 2024 ``` ``` -2- ``` ## `JUDGMENT` ``` The petitioner in this writ petition is stated to be Works Contractor engaged by the Kerala Water Authority (KWA). ``` ``` 2.The specific case of the petitioner is that he has been contracted with the ‘KWA’ only to supply materials for pipeline works being carried on by them; and that he has no connection with such construction work, or its allied performance. He argues that, obviously, therefore, no “Cess” under the Kerala ``` ``` Construction Workers Welfare Fund Act, could have been imposed against him, since the contract entered into by him has 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 his bill amount is sought ``` ``` WP(C) NO. 747 OF 2024 ``` **==> picture [22 x 9] intentionally omitted <==** ``` to be now deducted towards “Cess” under the “KCWWF”; and consequently, that he has been constrained to approach this Court, through this writ petition. He asserts that his 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’, his obligation to pay “Cess” under the “KCWWF” is unmistakable and unavoidable. He argued that, as long as the petitioner is involved in construction works, he certainly has to pay “Cess” and he cannot refuse it in any manner whatsoever. ``` ``` WP(C) NO. 747 OF 2024 ``` **==> picture [22 x 8] intentionally omitted <==** ``` 5.It is luculent from the afore rival ``` ``` positions that there is factual disputation as to the nature of the contract entered into by the petitioner with the ‘KWA’. While he ``` ``` maintains that he is 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 he only supplies materials and has no part in the construction work. If this be ``` ``` WP(C) NO. 747 OF 2024 ``` ``` -5- ``` ``` so, certainly, it is a matter which the Superintendent or such other competent Authority of ‘KWA’ must consider, before imposing “Cess” upon him, through an automatic deduction from his 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 he is liable to pay “Cess”, without even making an assessment of the same and without affording him 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 his claim, that he is not liable to pay “Cess” under the “KCWWF” Act because, they only supply materials and not concerned with the construction work. ``` ``` WP(C) NO. 747 OF 2024 ``` **==> picture [22 x 9] intentionally omitted <==** ``` The afore shall be done, after affording the petitioner an opportunity of being heard and after assessing his 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 his Bill amounts towards “Cess” under the “KCWWF Act”, will ``` ``` stand deferred; and will be taken forward only after the said orders are communicated to him 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 ``` ``` WP(C) NO. 747 OF 2024 ``` **==> picture [22 x 8] intentionally omitted <==** ``` the “KCWWF Act” cannot be imposed against the petitioner, then the amounts already collected from him under such head will be returned without any avoidable delay. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ``` ``` WP(C) NO. 747 OF 2024 ``` ``` -8- ``` ## `APPENDIX OF WP(C) 747/2024` ## `PETITIONER EXHIBITS` ``` EXHIBIT P1A TRUE COPY OF THE WORK ORDER NO. KWA/PHC/PKD/JJM/KOTTOPADAM/21-22 DATED 23-09-2022 TOGETHER WITH THE ACCEPTED SCHEDULE OF THE SECOND RESPONDENT ``` ``` EXHIBIT P2A TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT NO. 2 1 / 2 0 2 2 - 2 3 /SE/PHC/PKD DATED 10-10-2022 ``` ``` EXHIBIT P3A TRUE COPY OF THE REPRESENTATION DATED 09.10.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT ``` ``` EXHIBIT P4A TRUE COPY OF THE JUDGMENT DATED 04.12.2023 OF THIS HON'BLE COURT IN W.P.(C) NO. 39649 OF 2023 ```