IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 WP(C).No. 5417 of 2008(T) ------------------------- PETITIONER: --------------- RELIANCE GENERATORS PVT. LTD., NO.27 RAILWAY COLONY IV STREET, AMAINDAKARAI, CHENNAI 600 029. BY ADV. SRI.T.V.LAKSHMANAN SMT.SARITHA DAVID CHUNKATH SRI.R.JAYACHANDRAN SMT.SMITHA GEORGE SRIMANU TOM RESPONDENTS: ----------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TELECOMMUNICATION, NEW DELHI. 2. CHIEF ENGINEER (E), BHARAT SANCHAR NIGAM LIMITED, KOCHUMADATHIL BUILDING, MANJALIKULAM ROAD, THIRUVANANTHAPURAM 695 001 3. SUPERINTENDING ENGINEER (E), BHARAT SANCHAR NIGAM LIMITED, KOCHUMADATHIL BUILDING, MANJALIKULAM ROAD, THIRUVANANTHAPURAM 695 001. 4. EXECUTIVE ENGINEER, BHARAT SANCHAR NIGAM LIMITED, ELECTRICAL DIVISION, TRIVANDRUM. BY ADV. SRI.K.KESAVANKUTTY, SC, BSNL SRI.MATHEWS K.PHILIP, SC, BSNL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/03/2008, ALONG WITH WPC NO. 5418 OF 2008 WPC NO. 3755 OF 2008 THE COURT ON 18/3/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NOs. 5417, 5418 & 3755 OF 2008 =========================== Dated this the 18th day of March, 2008 J U D G M E N T The issues raised in these writ petitions being similar, the cases are disposed of by this common judgment. 2. In these writ petitions, petitioner contends they were awarded a contract for supplying, installation, testing and commissioning of diesel generator sets to various telephone exchanges of the Department of Telecom and Ext.P1 is a specimen copy of the contract. It is stated that the parties understood the transaction as an interstate transaction and according to the petitioner, D Forms prescribed under the Central Sales Tax Act were also issued by the respondents. Exts. P2 to P4 are the assessment orders issued by the Sales Tax Authority of Tamil Nadu assessing the petitioner under the CST Act for the assessment years 1995-96, 1996-97 and 1997-98. It is stated that the same transactions came to be assessed under the Kerala General Sales Tax Act and Exts.P5, P6 and P7 are the assessment orders. It is contended that the petitioner has taken all available steps for questioning the WPC 5417, 5418 & 3755/08 :2 : assessment under the KGST Act and to avoid the additional monetary liability. 3. According to the petitioner, in terms of Ext.P1 contract, if there is a liability on account of the transaction being treated as a works contract, the respondents should bear the said liability. On the strength of this contractual provision, petitioner claimed settlement of this additional liability and submitted Exts.P16 to P18 in these writ petitions. Subsequently, Exts. P19 and P20 were also issued claiming interest on the amount claimed under Exts.P16 to P18. On receipt of the request so made by the petitioner, the respondents issued Ext.P21 in WP(C) No.5417/2008 rejecting the claim. In the other two writ petitions, though similar requests have been received by the respondents, there is no reply similar to Ext.P21. It is in this background, the writ petitions have been filed praying for directing the respondents to pay the petitioner the sales tax liability relatable to the works contract executed by the petitioner during 1995-96, 1996-97 and 1997-98. 4. Counsel for the petitioner contends that the contract which they had was with the Department of Telecommunications, WPC 5417, 5418 & 3755/08 :3 : which has now become a Company. It was contended that being an authority under Article 12 of the Constitution, amenable to the writ jurisdiction of this court, the respondent has a duty to act fairly and reasonably even in contractual matters. According to the learned counsel, though the claim raised by the petitioners in these writ petitions is a monetary claim arising under a contract, in view of its constitutional obligation to be fair and reasonable in its dealings and since the refusal to bear the additional monetary liability reflects unfairness on its part, a writ petition is maintainable and this court will be justified in issuing a writ of mandamus directing the respondents to pay the petitioner the tax liability relatable to the works contract executed by them during the aforesaid years. 5. In order to appreciate the contentions of the learned counsel for the petitioner, it is necessary to refer to the stand taken by the respondents in Ext.P21 produced in WP(C) No.5417/2008. It is the stand of the respondents that though the transaction between them is an interstate transaction with the liability to pay tax under the Central Sales Tax Act, the liability of the petitioner to pay tax under the KGST Act arose out of the order of the Kerala Sales Tax WPC 5417, 5418 & 3755/08 :4 : Appellate Tribunal, Tribunal, which was based on the request made by the petitioner to consider the transaction between them and the Department as a local works contract. They have also extracted the relevant portion of the order of the Tribunal, in Ext.P21. It is stated that the Kerala Telecom Circle was not a party in the case and the Department is not responsible for any liability due to the petitioner's wrong interpretation of the rules/deviation from the tender conditions. It is stated that the BSNL is not bound to meet the tax liabilities of the petitioner under the KGST Act. Therefore, according to the respondents, the tax liability arose only in view of the case set up by the petitioner before the Appellate Tribunal on a wrong interpretation of the contract and the rules. 6. Necessarily, therefore in order to adjudicate the correctness of the stand taken by the respondents in Ext.P21 referred to above, interpretation of the relevant clause of the contract, appreciation of the stand taken by the petitioner before the Appellate Tribunal and such other questions of fact is necessary. In my view, this adjudication is not possible in a proceedings under Article 226 of the Constitution of India and therefore, if at all the WPC 5417, 5418 & 3755/08 :5 : petitioner has a claim against the respondents, petitioner has to pursue the same before the appropriate Civil Court by filing a suit. 7. It is true that in several cases, Supreme Court and also this court have taken the view that even in contractual matters, a State or an authority under Article 12 of the Constitution has a duty to act fairly and reasonably. In this case, I am not prepared to accept the contention of the petitioner that Ext.P21 is vitiated by unreasonableness or unfairness. A reading of Ext.P21 shows that the respondents have their reasons why they cannot be fastened with the liability to pay tax under the KGST Act and the correctness of which can be decided only in a regular suit. This does not spell out any unreasonable or arbitrariness on the part of the respondents. 8. In so far as WP(C) Nos. 5418 and 3755/08 are concerned, there is no order similar to Ext.P21 produced in WP(C) 5417/08. But then, facts being similar and the contention of the respondents being one of denial of its liability, I do not think it necessary to require the respondents to pass an order dealing with the claim raised by the petitioner by Exts.P16 to P18 or the interest WPC 5417, 5418 & 3755/08 :6 : claimed in Exts. P19 and P20 therein. In the result, without prejudice to the contentions raised in these writ petitions and also reserving liberty to the petitioner to seek appropriate reliefs before the Civil Court, these writ petitions are dismissed. ANTONY DOMINIC,JUDGE. Rp