Jain Builders v. Chief Engineer(Nw),Military Engineer Service (Mes) - Kerala High Court, 5 Dec 2022

Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.

MONDAY, THE 5TH DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944 WP(C) NO. 19899 OF 2022 PETITIONER:

JAIN BUILDERS, 216(C), SHIVA COLONY, MAYO LINK ROAD, AJMER – 305 007, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, MR. PRAFUL JAIN, S/O. SHRI SUBODH JAIN.

BY ADVS.

DEEPU THANKAN UMMUL FIDA LAKSHMI SREEDHAR R.RAJANANDINI MENON SHAHNAS K.P RESPONDENTS:

1 CHIEF ENGINEER(NW),MILITARY ENGINEER SERVICE, NAVAL BASE P.O., KOCHI – 682 004.

2 GARRISON ENGINEER (NAVY) LAKSHADWEEP, MILITARY ENGINEER SERVICE, COAST GUARD ROAD, KAVARATTI ISLANDS, UNION TERRITORY OF LAKSHADWEEP – 682 555.

3 GARRISON ENGINEER (I) NAVY, MILITARY ENGINEER SERVICE, OPP. INS DWEEPRAKSHAK, KAVARATTI ISLANDS, UNION TERRITORY OF LAKSHADWEEP – 682 555.

4 GARRISON ENGINEER, MILITARY ENGINEER SERVICE, FORT KOCHI, ERNAKULAM – 682 001.

5 GARRISON ENGINEER (P) NW, MILITARY ENGINEER SERVICE, KATARIBAGH, NAVAL BASE P.O., ERNAKULAM – 682 004.

6 GARRISON ENGINEER (P), MILITARY ENGINEER SERVICE, KATARIBAGH, NAVAL BASE P.O., ERNAKULAM – 682 004.

WP(C) NO. 19899 OF 2022 2 7 CONTROLLER OF DEFENSE ACCOUNTS (ENGINEERING SECTION) NO.618, ANNA SALAI, TYNAMPET, CHENNAI – 600 018.

BY ADV MANU S., DSG OF INDIA ADV. SUVIN R MENON (CGC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 19899 OF 2022 3 JUDGMENT The petitioner completed certain works on behalf of the Military Engineering Services. There appears to be a dispute regarding the payment of GST on works completed after coming into force of the GST regime. The works in question were awarded prior to coming into force of the GST regime. The rate of tax payable on works contract has gone up in the GST regime as distinct from the previous VAT / Service Tax regime.

The learned counsel appearing for the petitioner would submit that the respondents are duty bound to reimburse the entire amount of GST to the petitioner, after taking into account the amount which would have to be paid by the petitioner under the previous tax regime. It is submitted that the petitioner has completed the works mentioned as 'Table A' under paragraph 9 of the writ petition. It is pointed out that the works which are part of 'Table A' are works which were awarded to the petitioner and undertaken by the petitioner prior to introduction of the GST regime and completed during the GST regime. It is submitted that in almost similar circumstances this Court has allowed a writ petition filed by the petitioner herein as W.P.(C)No.22728 of 2019

WP(C) NO. 19899 OF 2022 4 and reference is made in this regard to Ext.P18. The learned counsel appearing for the petitioner also refers to Ext.P19 to P25 letters issued by the petitioner to the Chief Engineer.

The learned Central Government Counsel appearing for the respondents would submit that even going by the terms of Ext.P18 judgment, the petitioner is clearly not entitled to any relief. It is submitted that even in Ext.P18 it has been found that the remedy of the petitioner actually lies in atleast initially approaching the Garrison Engineer in terms of the contract, raising a dispute and claiming the payment of any further amount as GST. It is submitted that the petitioner has directly approached this Court without actually approaching the Garrison Engineer with its grievance. It is submitted that the contract between the parties envisages the resolution of disputes through arbitration and therefore, this writ petition is clearly not maintainable. The learned Central Government Counsel would submit that a series of documents produced as Annexure R1(d) along with a statement of the respondents would clearly show that the petitioner is not entitled to any relief. It is also pointed out that despite requiring the petitioner to produce the necessary records, the same has not been produced by the petitioner.

WP(C) NO. 19899 OF 2022 5 4.

Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents, I am of the view that atleast in the first instance this matter has be adjudicated by the Garrison Engineer, to whom the petitioner must address all its grievances in respect of the contract. If the Garrison Engineer determines that the petitioner is actually entitled to any amount, there is no reason to believe that such amounts will not be paid to the petitioner.

The learned counsel for the petitioner submits that Exts.P19 to P25 are requests made by the petitioner before the respective Garrison Engineers and the same may be directed to be considered.

Having heard the learned counsel for the petitioner and the learned counsel for the respondents, I am of the view that the question as to whether the petitioner is entitled to reimbursement of any differential amount towards payment of GST is a matter that requires to be considered by the respective Garrison Engineers in respect of works completed by the petitioner. These officers will be in a better position to consider the matter and to direct the release of any payment that may be found due to the petitioner. Accordingly, this writ petition will

WP(C) NO. 19899 OF 2022 6 stand disposed of directing that if the petitioner approaches the respective Garrison Engineers in respect of the works mentioned as Table A under paragraph 9 of the writ petition, the respective Garrison Engineers shall consider the claim of the petitioner and pass necessary orders in that regard having due regard to the law laid down by this court in Ext.P18 judgment. The petitioner shall be afforded an opportunity of hearing before final orders are passed. On the petitioner approaching the respective Garrison Engineers, they shall endeavor to complete the process within a period of one month from the date on which the petitioner makes a request for consideration of the claim. If any amount is found payable to the petitioner, the same shall be paid to the petitioner without undue delay.

The writ petition is disposed of as above.

Sd/- GOPINATH P.

JUDGE DK

Exhibit P2 TRUE COPY OF THE RELEVANT PAGE OF NOTIFICATION NO.11/2017 OF THE UNION TERRITORIES DATED 28/06/2017.

Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION G.O.(P)NO. 72/2017/TAXES DATED 30/06/2017.

Exhibit P4 TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION NO. 20/2017 ISSUED BY THE CENTRAL GOVERNMENT DATED 22/08/2017 .

Exhibit P5 TRUE COPY OF THE NOTIFICATION NO.

24/2017 DATED 21/9/2017.

Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION G.O.(P)NO. 136/2017/TAXES ISSUED BY THE STATE GOVERNMENT, DATED 09/11/2017.

Exhibit P7 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED WITH RESPECT TO ADDN/ALTN TO CERTAIN BLDGS OF NAVY CHILDREN SCHOOL (NCS) AT NAVAL BASE KOCHI DATED 11/06/2014.

Exhibit P8 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED I I WITH RESPECT TO PROVN OF OTM ACCN ALONG WITH BOUNDARY WALL AT ICGS AT MINICOY LAKSHADWEEP DATED 16/06/2014.

Exhibit P9 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED WITH RESPECT TO PROVN OF ADMIN, REGULATING, LOGISTIC ACCN AND OTHER FACILITIES FOR UPGRADATION OF NAVAL ESTT

WP(C) NO. 19899 OF 2022 8 AT KAVARATTI DATED 03/12/2014.

Exhibit P10 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED WITH RESPECT TO PROVN OF DEFICIENT ACCN FOR JUNIOR SAILORS AT ND MINICOY UNDER GE(I) LAKSHADWEEP DATED 19/08/2015.

Exhibit P11 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED I I WITH RESPECT TO PROVN OF STORE AND LIVING ACCN WITH ASSOCIATED FACILITIES FOR HALF DSC 'B" PLATOON AT 3W DET MINICOY DATED 26/02/2016.

Exhibit P12 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED WITH RESPECT TO PROVN OF OFFICE AND STORAGE ACCN FOR MES AT ND MINICOY DATED 21/03/2017.

Exhibit P13 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED WITH RESPECT TO PROVN OF DEFICIENT SINGLE OTM ACCN AND SHORE FACILITIES FOR SPB DWEEPRAKSHAK KAVARATTI DATED 05/04/2017.

Exhibit P14 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED WITH RESPECT TO ADDN /ALTN AND SPL REPAIRS TO TARANGINI APARTMENT KOCHI DATED 04/07/2017.

Exhibit P15 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED WITH RESPECT TO PROVN OF CERTAIN DEFICIENT SINGLE LIVING ACCN WITH MESS FOR TRAINEE OFFICERS AT INS DRONACHARYA DATED 27/07/2017.

Exhibit P16 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED WITH RESPECT TO SETTING UP OF INFRASTRUCTURE FOR NAVAL RADAR STATION COMMUNICATION CENTRE, ADMIN COMPLEX AND ALLIED INFRASTRUCTURE AT ND MINICOY DATED 16/08/2017.

WP(C) NO. 19899 OF 2022 9 Exhibit P17 TRUE COPY OF THE COMMUNICATION OF THE SECOND RESPONDENT DATED 06/04/4019.

Exhibit P18 TRUE COPY OF THE COMMON JUDGMENT DATED 28/10/2019 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN W.P. (C)NO.22728/2019 AND W.P. (C)NO. 28767/2019.

Exhibit P19 TRUE COPY OF LETTER SUBMITTED BY THE PETITIONER WITH RESPECT TO ADDN/ALTN TO CERTAIN BLDGS OF NAVY CHILDREN SCHOOL (NCS) AT NAVAL BASE KOCHI DATED 21/11/2019.

Exhibit P20 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER WITH RESPECT TO PROVN OF OTM ACCN ALONG WITH BOUNDARY WALL AT ICGS AT MINICOY LAKSHADWEEP DATED 19/11/2019.

Exhibit P21 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 19/11/2019 WITH RESPECT TO PROVN OF ADMIN, REGULATING, LOGISTIC ACCN AND OTHER FACILITIES FOR UPGRADATION OF NAVAL ESTT AT KAVARATTI.

Exhibit P22 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 19/11/2019 WITH RESPECT TO PROVN OF STORE AND LIVING ACCN WITH ASSOCIATED FACILITIES FOR HALF DSC 'B" PLATOON AT 3W DET MINICOY.

Exhibit P23 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 18/11/2019 WITH RESPECT TO PROVN OF DEFICIENT SINGLE OTM ACCN AND SHORE FACILITIES FOR SPB DWEEPRAKSHAK KAVARATTI.

Exhibit P24 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 7/11/2019 WITH RESPECT TO ADDN /ALTN AND SPL REPAIRS TO TARANGINI APARTMENT KOCHI.

Exhibit P25 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 18/11/2019 WITH RESPECT TO PROVN OF OFFICE AND STORAGE ACCN FOR

WP(C) NO. 19899 OF 2022 10 MES AT ND MINICOY.

Exhibit P26 TRUE COPY OF THE LETTER OF THE SEVENTH RESPONDENT TO THE ACCOUNT OFFICER OF THE OFFICE OF THE FIRST RESPONDENT DATED 19/02/2022.

Exhibit P27 TRUE COPY OF THE LETTER OF THE ACCOUNT OFFICER TO THE GARRISON ENGINEERS DATED 05/04/2022.

Exhibit P28 TRUE COPY OF THE RAR SUBMITTED BY THE PETITIONER WITH RESPECT TO WITH RESPECT TO THE WORK PROVISION OF CERTAIN DEFICIENT SINGLE LIVING ACCN AND MESS FOR TRAINEE OFFICERS AT INS DRONACHARYA DATED 17/05/2022.

RESPONDENT ANNEXURES Annexure R1(a) True copy of the letter No 8464/447/E8 dated 17 Nov 2021 issued by Garrison Engineer, MES Annexure R1(b) True copy of the instructions dated 30.01.2020 issued by the office of the 1st respondent Annexure R1(c) The true copy of letter No E/I/GE(NW)/K/Gen Corr dated 03 Jun 2022 issued by Regional Audit Officer (MES Annexure R1(d) True copy of the letter No. 8112/219/E8 dated 08-07-2020 issued by the GE (Navy) Lakshadweep Annexure R1(d)(a) True copy of the letter No. 8135/640/E8 dated 23-06-2020 issued by the GE (Project) Kochi Annexure R1(d)/(b) A true copy of the letter No.

89078761/E8 dated 18.07.2020 issued by the office of 1st respondent

WP(C) NO. 19899 OF 2022 11 Annexure R1(d)(c) A true copy of the letter No.

8135/847/E8 dated 11-03-2021 issued by the GE (Project) Kochi Annexure R1(d)(d) A true copy of the letter No.

8112/257/E8 dated 24-03-2022 issued by the GE (Navy) Lakshadweep