Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 19TH DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945 WP(C) NO. 29024 OF 2023 PETITIONER:
T. MOHANAN AGED 65 YEARS S/O. DAMODARAN NAIR, RESIDING AT NANDANAM, KOTTOOLI, KOZHIKODE-, PIN - 673016 BY ADVS.
P.A.HARISH V.V.SURENDRAN ASWATHI C.
RESPONDENTS:
1 THE MANAGING DIRECTOR KERALA STATE COASTAL AREA DEVELOPMENT CORPORATION, FISHERIES COMPLEX, KAMALESWARAM, PO. MANACAUD, THIRUVANANTHAPURAM-, PIN - 695001 2 THE CHIEF ENGINEER KERALA STATE COASTAL AREA DEVELOPMENT CORPORATION, FISHERIES COMPLEX, KAMALESWARAM, PO. MANACAUD, THIRUVANANTHAPURAM, PIN - 695001 3 THE DIVISIONAL ACCOUNTANT KERALA STATE COASTAL AREA DEVELOPMENT CORPORATION, FISHERIES COMPLEX, KAMALESWARAM, PO. MANACAUD, THIRUVANANTHAPURAM, PIN - 695001 4 THE DIRECTOR OF FISHERIES VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695003 SMT.NINU M.DAS, SC, KSCADC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 29024 OF 2023 2 JUDGMENT The petitioner, who is stated to be an electrical contractor, says that he completed the work of electrification of the “GRFTHS and VHSS Azheekkal”, Kannur, satisfactorily; and that he had also remitted the GST component of Rs.3,17,045.34, as is evident from Ext.P4.
2.
The petitioner asserts that, as per Ext.P3 circular, respondents 1 to 3 - who are the contract awardees - are to bear the GST component of the work; and that it is on their assurance, that he had remitted the same, as seen from Ext.P4. He alleges that, even though more than 1½ years have now elapsed, no action has been taken by respondents 1 to 3 to refund the GST component; and therefore, that he has been constrained to approach this Court,
WP(C) NO. 29024 OF 2023 3 especially since the notice issued by him did not obtain any response from the said respondents. He, through his learned Counsel - Sri.P.A.Harish - thus prays that respondents 1 to 3 be directed to immediately refund the afore amount to him, within a time frame to be fixed by this Court.
3.
Sri.Ninu M.Das – learned counsel appearing for respondents 1 to 3, in response, submitted that the facts are not as stated by the petitioner because, going by the contract awarded, the schedule of rates were fixed in such a manner that the component of GST was also included therein. He then added that no representation or legal notice has ever reached his clients from the petitioner; and therefore, that there was no occasion for them to consider the afore claim now impelled by the petitioner.
WP(C) NO. 29024 OF 2023 4 He added that, therefore, if the petitioner is to make an appropriate representation before the competent among respondents 1 to 3, same can be decided,
adverting
to
the
contractual obligations of the parties and to such other relevant and germane documentary and factual circumstances.
4.
When I consider the afore submissions, it is without doubt that the request of the petitioner will first have to be decided by the competent among respondents 1 to 3. This is because, the question whether the GST component was contractually liable to be returned by the said respondents or otherwise, is an issue squarely in the realm of facts, which cannot be decided by this Court at the first instance, while acting under Article 226 of the Constitution of India.
WP(C) NO. 29024 OF 2023 5 In the afore circumstances, I dispose of this writ petition with the following directions:
a) I leave liberty to the petitioner to approach the competent among respondents 1 to 3, with an appropriate representation detailing all his claims, supported by relevant documents; and this shall be done not later than one month from the date of receipt of a copy of this judgment.
b) On the afore being done and upon receipt of the said representation, the Kerala State Coastal Development Corporation, will take up the same and dispose it of, after hearing the petitioner and adverting to all the documents and materials as are applicable; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than three months
WP(C) NO. 29024 OF 2023 6 thereafter.
c) If, through the afore exercise, the amounts as claimed by the petitioner or a portion thereof are found eligible to be paid to him , same shall be disbursed within a period of one month thereafter.
Sd/- DEVAN RAMACHANDRAN JUDGE SAS
WP(C) NO. 29024 OF 2023 7 APPENDIX OF WP(C) 29024/2023 PETITIONER EXHIBITS:
Exhibit P1 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 21.08.2019 SANCTIONING THE WORK TO THE PETITIONER Exhibit P2 A TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE 2ND RESPONDENT DATED 26.09.2019 Exhibit P3 A TRUE COPY OF THE CIRCULAR DATED 01.03.2019 ISSUED BY THE FINANCE C INDUSTRIES AND PUBLIC WORKS (B) DEPARTMENT Exhibit P4 A TRUE COPY OF THE INVOICE DATED 20.10.2022