REENA ENGINEERS AND CONTRACTORS PVT. LTD. v. KERALA WATER AUTHORITY

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).

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 (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.

The petitioner says that, however, in 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 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].

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.

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.

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

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.

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.