Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 WP(C) NO. 32217 OF 2023 PETITIONER:
PMR ENTERPRISES PVT. LTD.
PMR BUILDING, 4/33, MELMURI.P.O., MALAPPURAM, PIN - 676517 REPRESENTED BY ITS MANAGING DIRECTOR BY ADVS.
P.SHANES METHAR N.KRISHNA PRASAD BHARATH MOHAN RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF WATER RESOURCES AND IRRIGATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 CHIEF ENGINEER (IRRIGATION AND ADMINISTRATION), O/O CHIEF ENGINEER (IRRIGATION AND ADMINISTRATION), PUBLIC OFFICE COMPLEX, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM THIRUVANANTHAPURAM, PIN - 695033 3 THE SUPERINTENDING ENGINEER O/O.IRRIGATION DEPARTMENT, IRRIGATION NORTH CIRCLE, CAUVERI HOUSE, WEST HILL, KOZHIKODE, PIN - 673005 BY ADV.
SRI. SUJITH MATHEW JOSE, SPL. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT The petitioner states that, with respect to a contract for work – which they have entered into with the Irrigation Department – the eligible GST is being refused to be disbursed to them; though it is mandatory to have been so done, as per the contract terms, as well as the Government orders covering the field.
2. Sri.P.Shanes Methar – learned counsel for the petitioner, submitted that his client furnished their bid for the work in question – based on which the contract was entered into with them by the respondents – quoting their rates excluding the GST as mandated by the Bill of Quantities (BoQ template), as also Ext.P2 Circular; and hence that the refusal of the respondents to reimburse the GST is illegal and unlawful. He argued that, when the contract as also the 'BoQ' template, and Ext.P2 Circular, make it incumbent upon the respondents to honour and disburse GST to his client, their refusal is unlawful and unconstitutional. He thus prayed that the reliefs sought for in this writ petition be granted.
3. Pertinently, in answer to the afore submissions of the learned counsel for the petitioner, the learned Special Government Pleader – Sri.Sujith Mathew Jose, relied upon a counter affidavit filed on behalf of the 3rd respondent, wherein, it is averred that the quoted amount as per 'BoQ' is inclusive of all taxes. He, therefore,
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prayed that this writ petition be dismissed as being premature. He, however, added that since he is making the submissions only on instructions, it may be left to the 1st respondent to take a final decision on the petitioner's claim, depending upon all the germane terms of the contract, as also the applicable Circulars and the instructions that govern the field.
4. I have no doubt that the afore suggestion of the learned Government Pleader is the best available in the given circumstances because, the disputation between the parties – whether the bid of the petitioner was inclusive of GST or otherwise – is not one that this Court can decide at the first instance, for lack of jurisdiction to deal with such matters, while acting under Article 226 of the Constitution of India.
5. I am, therefore, of the firm view that the 1st respondent must take up the petitioner's claim and decide upon it, after hearing them, without any avoidable delay.
Resultantly, I allow this writ petition and direct the competent Authority of the 1st respondent to immediately hear the petitioner and take a decision on their claim for reimbursement of GST; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.
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If, after the afore exercise, the petitioner is found eligible for being reimbursed the GST, then action for honouring the same shall be completed, leading to its disbursement, as expeditiously as is possible, but not later than two months thereafter.
Sd/- DEVAN RAMACHANDRAN JUDGE anm
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APPENDIX OF WP(C) 32217/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE TENDER -E-TENDER NO.SEIK/ET-PQ-01/2018- 19/SN DATED 5.12.2018 Exhibit P2 TRUE COPY OF THE CIRCULAR NO.
90/2017/FIN. DATED 14.12.2017 ISSUED BY THE DEPARTMENT OF FINANCE (INDUSTRIES & PUBLIC WORKS-B), GOVERNMENT OF KERALA Exhibit P3 TRUE COPY OF THECIRCULAR NO. 18/2019/FIN.
DATED 01.03.2019 ISSUED BY THE DEPARTMENT OF FINANCE (INDUSTRIES & PUBLIC WORKS-B), GOVERNMENT OF KERALA Exhibit P4 TRUE COPY OF THE RELEVANT EXTRACT OF THE AGREEMENT NO.SE (I) 03/2019-20 DATED 24.05.2019 FOR THE WORKS BETWEEN THE PETITIONER AND THIRD RESPONDENT Exhibit P5 TTRUE COPY OF THE FIRST SUPPLEMENTARY AGREEMENT (DATED 19.03.2021) FOR EXTENSION TIME OF COMPLETION TO THE ORIGINAL AGREEMENT NO.SE (I) 03/2019-20 Exhibit P6 TRUE COPY OF THE SECOND SUPPLEMENTARY AGREEMENT (DATED 30.06.2021) TO THE ORIGINAL AGREEMENT NO.SE (I) 03/2019-20 FOR ADDITIONAL QUANTITIES EXCEEDING 25% TO THE ORIGINAL QUANTITY AND EXTRA ITEMS OF WORK Exhibit P7 TRUE COPY OF THE THIRD SUPPLEMENTARY AGREEMENT (DATED 13.08.2021) FOR EXTENSION TIME OF COMPLETION TO THE ORIGINAL AGREEMENT NO.SE (I) 03/2019-20 Exhibit P8 TRUE COPY OF THE FIRST SUPPLEMENTARY AGREEMENT (DATED 02.08.2022) FOR EXTENSION TIME OF COMPLETION TO THE ORIGINAL AGREEMENT NO.SE (I) 03/2019-20 Exhibit P9 TRUE COPY OF THE ORDER NO.W5/19370/18/TS/RE DATED 24.6.2021(TOGETHER WITH ATTACHMENT AND TYPED COPY) RESPONDENT EXHIBITS Exhibit R3(a) TRUE COPY OF THE RELEVANT PAGES OF THE BID DOCUMENT Exhibit R3(b) TRUE COPY OF THE LETTER DATED 29.12.2022 OF THE 2ND RESPONDENT