KOYA AND COMPANY CONSTRUCTION LIMITED v. KERALA WATER AUTHORITY & OTHERS (WP(C) Nos. 43298/2023, 43327/2023 and 43331/2023)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945** ## **WP(C) NO. 43298 OF 2023** ## **PETITIONER:** KOYA AND COMPANY CONSTRUCTION LIMITED REP. BY ITS MANAGING DIRECTOR, 12-2-831/38/38, 72 MIGH, MEHDIPATNAM, HYDERABAD, TELANGANA - 500028 P.SHANES METHAR N.KRISHNA PRASAD ## **RESPONDENTS:** 1 KERALA WATER AUTHORITY REP. BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695033 2 THE SUPERINTENDING ENGINEER O/O. THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, PH-CIRCLE-MALAPPURAM, KOTTAKUNNU.P.O., MALAPPURAM - 676505 3 THE EXECUTIVE ENGINEER O/O. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PROJECT DIVISION-MALAPPURAM, UPHILL HILL.P.O., MALAPPURAM, PIN - 676505 4 KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD REP. BY ITS CHAIRMAN, NIRMAN BHAVAN, METTUKADA, THYCAUD.P.O., THIRUVANANTHAPURAM – 695014 SRI.P.M.JOHNY – SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2023, ALONG WITH WP(C).43327/2023, 43331/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 43298 OF 2023 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA,** **1945** ## **WP(C) NO. 43327 OF 2023** ## **PETITIONER:** G.SOMAN NAIR, AGED 66 YEARS SON OF GOPALA PILLAI, SABARISAILAM, JAWHAR NAGAR, KOWDIAR POST, THIRUVANANTHAPURAM - 695003 N.KRISHNA PRASAD P.SHANES METHAR A.MOHAMMED FAIZAL DEEPAK VARUGHESE MATHEW BHARATH MOHAN GEETHU SUSAN VARGHESE PUSHPARAJ.K.P ## **RESPONDENTS:** 1 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, OBSERVATORY HILLS, VELLAYAMBALAM, THIRUVANANTHAPURAM,, PIN - 695033 2 THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, PUBLIC HEALTH CIRCLE, THIRUVANANTHAPURAM., PIN - 695033 3 THE EXECUTIVE ENGINEER PROJECT DIVISION, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM., PIN - 695033 4 THE KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD REP. BY ITS CHAIRMAN, NIRMAL BHAVAN, METTUKKADA, THAYCAUD POST, THIRUVANANTHAPURAM, PIN – 695014 WP(C) NO. 43298 OF 2023 3 SRI.P.M.JOHNY – SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2023, ALONG WITH WP(C).43298/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 43298 OF 2023 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA,** ## **1945** ## **WP(C) NO. 43331 OF 2023** ## **PETITIONER:** KOYA AND COMPANY CONSTRUCTION LIMITED REP. BY ITS MANAGING DIRECTOR, 12-2-831/38/38, 72MIGH, MEHDIPATNAM, HYDERABAD, TELANGANA - 500028 P.SHANES METHAR N.KRISHNA PRASAD ## **RESPONDENTS:** 1 KERALA WATER AUTHORITY REP. BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 2 THE SUPERINTENDING ENGINEER O/O. THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, PH-CIRCLE-MALAPPURAM, KOTTAKUNNU.P.O., MALAPPURAM., PIN - 676505 3 THE EXECUTIVE ENGINEER, O/O. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PROJECT DIVISION-EDAPPAL, MALAPPURAM, PIN - 679576 4 KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD REP. BY ITS CHAIRMAN, NIRMAN BHAVAN, METTUKADA, THYCAUD.P.O., THIRUVANANTHAPURAM., PIN – 695014 SRI.P.M.JOHNY – SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2023, ALONG WITH WP(C).43298/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 43298 OF 2023 5 ## **JUDGMENT** ## **[WP(C) Nos.43298/2023, 43327/2023, 43331/2023]** The petitioner in these matters – which have been heard together on account of the analogous facts and circumstances presented and similarity of the reliefs sought – is stated to be Works Contractors, 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, 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”; and consequently, that they have been constrained to approach this Court, through this writ petition. They assert that their contentions are supported by the WP(C) NO. 43298 OF 2023 6 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” 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 WP(C) NO. 43298 OF 2023 7 the obligation of a contractor to pay “Cess” thereunder be attracted. 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. 7. 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. 8. In the afore circumstances, I allow these writ petitions 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. 9. The afore shall be done, after affording each of the petitioner an opportunity of being heard and after assessing their WP(C) NO. 43298 OF 2023 8 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. 10. 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 improved against the petitioner, then the amounts already collected from them under such head will be returned without any avoidable delay. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu WP(C) NO. 43298 OF 2023 9 ## **APPENDIX OF WP(C) 43327/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SELECTION NOTICE (NO.KWA/PHC/TVM/2356/ 2018-AMRUT DATED 25.02.2021 OF THE SECOND RESPONDENT Exhibit P2 TRUE COPY OF THE AGREEMENT NO.51/2021 DATED 25.2.2021 WITH THE SECOND RESPONDENT Exhibit P3 TRUE COPY OF THE ACCEPTED PRICE SCHEDULE Exhibit P4 TRUE COPY OF THE APPROVED BREAK-UP OF THE WORK IN QUESTION Exhibit P5 TRUE COPY OF THE CC PART BILL-I Exhibit P6 TRUE COPY OF THE CB3 VOUCHER DATED 01/07/2021 Exhibit P7 TRUE COPY OF THE COMMUNICATION NO.KWA/PDT/AB1-120(A)/2009) DATED 10.01.2022 ISSUED BY THE THIRD RESPONDENT TO THE CORPORATION OF THIRUVANANTHAPURAM ALONG WITH THE CB-3 VOUCHER Exhibit P8 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 15.12.2023 Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 04.12.2023 IN WRIT PETITION (CIVIL) NO. 39649/2023 WP(C) NO. 43298 OF 2023 10 ## **APPENDIX OF WP(C) 43331/2023** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE E-TENDER NO SE/PHC/MPM/27/2023-24 DATED NIL OF THE SECOND RESPONDENT Exhibit P2 A TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 09/08/2023 (TOGETHER WITH THE ACCEPTED SCHEDULE Exhibit P3 A TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT NO.SE/PHC/MPM/38/2023-24 DATED 21/08/2023 Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED 5.12.2023 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 WP(C) NO. 43298 OF 2023 11 ## **APPENDIX OF WP(C) 43298/2023** PETITIONER EXHIBITS ExhibitP1 A TRUE COPY OF THE E-TENDER NO SE/PHC/MPM/59/2023-24 DATED 22/06/2023 OF THE SECOND RESPONDENT Exhibit P2 A TRUE COPY OF THE LETTER OF ACCEPTANCE (TOGETHER WITH THE ACCEPTED SCHEDULE) ISSUED BY THE SECOND RESPONDENT DATED 4.9.2023 ExhibitP3 A TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT NO.SE/PHC/MPM/65/2023-24 DATED 4.10.2023 ExhibitP4 A TRUE COPY OF THE REPRESENTATION DATED 5.12.2023 SUBMITTED BY THE PETITIONER 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