JOSEPH JOHN v. KERALA WATER AUTHORITY

KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, OBSERVATORY HILLS, VELLAYAMBALAM, THIRUVANANTHAPURAM., PIN - 695033 THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, PUBLIC HEALTH CIRCLE, KERALA WATER AUTHORITY, MUVATTUPUZHA., PIN - 686661 THE EXECUTIVE ENGINEER OFFICE OF THE EXECUTIVE ENGINEER, PROJECT DIVISION, KERALA WATER AUTHORITY, KATTAPANA, IDUKKI, PIN - 685508 KERALA CONSTRUCTION WORKERS WELFARE FUND BOARD, REP. BY ITS CHAIRMAN, NIRMAN BHAVAN, METTUKADA, THYCAUD, THIRUVANANTHAPURAM, PIN - 695014 BY ADV. SRI.P.M.JOHNY – SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 2677 of 2024 : 2 : JUDGMENT The petitioner is stated to be a 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 (“KCWWF Act”, for short), could have been imposed against him, since the contracts entered into by him 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 his bill amount is sought to be now deducted towards “Cess” under the “KCWWF Act”; 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’, W.P.(C).No. 2677 of 2024 : 3 : 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 Act” 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.

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 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 the 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 supply 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 W.P.(C).No. 2677 of 2024 : 4 : 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 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, he only supplies 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 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 W.P.(C).No. 2677 of 2024 : 5 : “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 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 W.P.(C).No. 2677 of 2024 : 6 : APPENDIX OF WP(C) 2677/2024 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 A TRUE COPY OF THE LETTER OF ACCEPTANCE DATED NIL TOGETHER WITH THE ACCEPTED SCHEDULE OF THE SECOND RESPONDENT A TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT NO. 3 7 / 2 0 2 2 - 2 3 / S E / P H C / M V PA D A T E D 3 1 . 0 3 . 2 0 2 3 A TRUE COPY OF THE REPRESENTATION DATED 09.10.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT A TRUE COPY OF THE JUDGMENT DATED 4-12- 2023 OF THIS HON'BLE COURT IN W.P.(C) NO. 39649 OF 2023 RESPONDENTS' EXHIBITS : NIL.