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

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. 39292 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. 39292 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. 39292 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. 39292 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 be imposed against the petitioner, then the amounts already collected from them under such head will be returned without any avoidable delay. Sd/- SAS DEVAN RAMACHANDRAN JUDGE WP(C) NO. 39292 OF 2023 8 APPENDIX OF WP(C) 39292/2023 PETITIONER’S EXHIBITS: Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 A TRUE COPY OF THE ETENDER NO : SE/ PHC/KKD/17/2022-2023 DATED 12/07/2022 PUBLISHED BY THE SECOND RESPONDENT A TRUE COPY OF THE WORK ORDER TOGETHER WITH THE ACCEPTED SCHEDULE (LETTER NO. 1945/D6/2022/PHC - KKD DATED 15-10-2022 OF THE SECOND RESPONDENT) A TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT NO. SE / PHC /KKD / 16/2022-2023 DATED 28/10/2022 A TRUE COPY OF THE CB3 VOUCHER PERTAINING TO CC FIRST & PART BILL DATED 11-01-2023 A TRUE COPY OF THE CB3 VOUCHER PERTAINING TO CC SECOND & PART BILL DATED 10-02-2023 A TRUE COPY OF THE REPRESENTATION DATED 09.10.2023 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT A TRUE COPY OF THE ORDER DATED 07-11-2023 OF THIS HON'BLE COURT IN W.P.(C) NO. 36832 OF 2023