Reena Engineers and Contractors Pvt. Ltd. v. Kerala Water Authority

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 ``` ## `WP(C) NO. 39131 OF 2023` ## `PETITIONER:` ``` REENA ENGINEERS AND CONTRACTORS PVT. LTD. REP. BY ITS MANAGING DIRECTOR, K.C.JAMES, 602, SHIV TOWER, PATTO PLAZA,PANAJI, GOA., PIN - 403001 BY ADVS. P.SHANES METHAR N.KRISHNA PRASAD ``` ## `RESPONDENTS:` ``` 1KERALA WATER AUTHORITY REP. BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM., PIN - 695033 2THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, P H CIRCLE - KOZHIKODE, KERALA WATER AUTHORITY,MALAPARAMBA.P.O, KOZHIKODE., PIN - 673009 3THE KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD REP. BY ITS CHAIRMAN, NIRMAN BHAVAN, METTUKKADA, THYCAUD.P.O., THIRUVANANTHAPURAM., PIN - 695014 SRI.P.M.JOHNY SRI. C.R.SIVAKUMAR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 39131 OF 2023 ``` ``` 2 ``` ## `JUDGMENT` ``` The petitioner is stated to be a Works Contractor, engaged by the respondent - 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 ``` ``` ConstructionWorkersWelfareFundAct ``` ``` (hereinafter referred to as‘KCWWF Act’ for ``` ``` short), 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. ``` **==> picture [405 x 14] intentionally omitted <==** ``` WP(C) NO. 39131 OF 2023 ``` ``` 3 ``` ``` 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 asserts that their contentions are supported by the judgments of this Court inPoulose 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 petitioner is a contractor under the ‘KWA’, his obligation to pay ‘Cess’ under the ‘KCWWF Act’ is unmistakable and unavoidable. He argued that, as long as the petitioner is involved in ``` ``` WP(C) NO. 39131 OF 2023 ``` ``` 4 ``` ``` construction works, he certainly has to pay ``` ``` ‘Cess’ and 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. ``` ``` WP(C) NO. 39131 OF 2023 ``` ``` 5 ``` `7. In the case at hand, as I have already` ``` said above, it is the specific contention of the petitioner that they only supplies materials and ``` ``` has 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 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 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 the impugned proceedings ``` ``` WP(C) NO. 39131 OF 2023 ``` ``` 6 ``` ``` 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 is 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 ``` ``` WP(C) NO. 39131 OF 2023 ``` ``` 7 ``` ``` deferred; and will be taken forward only after the said orders are communicated to him and in ``` ``` terms of the decisions to be arrived at. ``` ``` As a corollary, if, through the afore ``` ``` exercise, it is to be found that ‘Cess’ under the ``` ``` ‘KCWWF Act’ cannot beimposedagainst the ``` ``` petitioner, then the amounts already collected fromthem under such head will be returned without any avoidable delay. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ``` ``` WP(C) NO. 39131 OF 2023 ``` ``` 8 ``` ## `APPENDIX OF WP(C) 39131/2023` ``` PETITIONER’S EXHIBITS: ``` ``` Exhibit P1A TRUE COPY OF THE E- TENDER NO : SE/ PHC/KKD/ 25/2022-2023 DATED 27/07/2022 PUBLISHED BY THE SECOND RESPONDENT Exhibit P2A TRUE COPY OF THE WORK ORDER TOGETHER WITH THE ACCEPTED SCHEDULE (LETTER NO. 2091/D6/2022/PHC - KKD DATED 24.10.2022 OF THE SECOND RESPONDENT) Exhibit P3A TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT NO. SE / PHC /KKD /25/2022-2023 DATED 02/11/2022 Exhibit P4A TRUE COPY OF THE CB3 VOUCHER PERTAINING TO CC FIRST & PART BILL DATED 01-02-2023 Exhibit P5A TRUE COPY OF THE CB3 VOUCHER PERTAINING TO CC SECOND & PART BILL DATED 07-03-2023 Exhibit P6A TRUE COPY OF THE CB3 VOUCHER PERTAINING TO CC THIRD & PART BILL DATED 21-03-2023 Exhibit P7A TRUE COPY OF THE CB3 VOUCHER PERTAINING TO CC FIFTH & PART BILL DATED 6-09-2023 Exhibit P8A TRUE COPY OF THE REPRESENTATION DATED 18.10.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT Exhibit P9A TRUE COPY OF THE ORDER DATED 07-11-2023 OF THIS HON'BLE COURT IN W.P.(C) NO. 36832 OF 2023 ```