w w w . L a w y e r S e r v i c e s . i n



Kerala Water Authority Licenced Plumbers Union (CITU) State Committee, Thiruvananthapuram, Represented by Its General Secretary, C. Justin, Proprietor, Sheeju Plumbing & Sanitary Engineering Works, Perurkada & Others v/s State of Kerala, Represented by Chief Secretary, Secretariat, Trivandrum & Others

    WP(C). Nos. 18399 & 18234 of 2020

    Decided On, 11 February 2022

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.V. KUNHIKRISHNAN

    For the Petitioners: M.P. Ramnath, P. Rajesh (Kottakkal), M. Varghese Varghese, S. Sandhya, Bepin Paul, Shalu Varghese, S. Deepak, Antony Tharian, S. Arjun, K.J. Sebastian, Advocates. For the Respondents: P. Benjamin Paul, Dinesh Cherukat, SC, S. Manu, ASGI, Vidya Kuriakose, GP., K.N. Chandrababu, Advocate.



Judgment Text

1. These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment.

2. The petitioners in W.P.(C) No. 18234/2020 are the licensed plumbers of Kerala Water Authority. The 1st petitioner in W.P.(C.) No. 18399/2020 is the registered Union of the Kerala Water Authority licensed plumbers. The 2nd petitioner in the above writ petition is also a licensed plumber and he is the State General Secretary of the 1st petitioner- Union. The petitioners 3 to 5 in W.P.(C.) No. 18399/2020 are also licensed, plumbers. W.P.(C.) No.18399/2020 is filed on behalf of 639 members including the petitioners 2 to 5 of the 1st petitioner-Union. Exts.P1 to P12 in W.P.(c) No.18399/2020 are the list of the members of the 1st petitioner-Union in Thiruvananthapuram, Ernakulam, Kozhikode, Kollam, Alappuzha, Pathanamthitta, Thrissur, Malappuram, Kannur, Kasargode, and Palakkad districts. The petitioners in both these writ petitions raised a common issue. Since both these writ petitions are filed with a common issue, I will refer to the pleadings and exhibits in W.P.(C.) No. 18399/2020 in this judgment for convenience. W.P.(C.) No. 18399/2020 is filed with the following prayers :

“A) Issue a writ in the nature of certiorari or such other writs or orders quashing Ext P15 to P-186 in so far as they pertain to providing Functional Household Tap Connections (FHTCs) also referred to in certain tenders therein as household retrofittable /extendable water service connections, other than through “licenced plumbers” and all further proceedings in pursuance thereof in such matter.

B) Issue a writ in the nature of mandamus or such other writs or orders directing the respondents not to provide any domestic connections/house connections/Functional Household Tap Connections (FHTCs) also referred to in certain cases therein as household retrofittable/extendable water service connections, other than through “licenced plumbers” as envisaged under law and to provide equitable distribution of work for giving domestic / house connections / Functional Household Tap Connections (FHTCs) also referred to in certain cases as household retrofittable/extendable water service connections, to "licensed plumbers", including under the Jal Jeevan Mission (JJM) and to implement the empanelled licenced plumbers system for providing such connections and envisaged in Ext P-188 as clarified by Ext P-189 judgment.

C) Award the cost of this writ petition.

D) Grant such other reliefs as this Hon'ble court may deem fit to grant in the facts and circumstances of the case and in the interest of justice, equity and law.“

3. Exts.P15 to P186 are the e-tender notices issued by the Kerala Water Authority inviting tenders for the work of Jal Jeevan Mission 2021, which is a work for providing water supply connection to households. The specific contention of the petitioners is that as per the Kerala Water Supply and Sewerage Act, 1986 (hereinafter mentioned as “Act”) and Kerala Water Authority (Water Supply) Regulations, 1991, (hereinafter mentioned as “Regulation”), the individual petitioners were given licence for plumbing work by the water authority. The respondents 3 to 36 are the various division heads and subheads coming under the 2nd respondent. According to the petitioners, the individual petitioners and the licensed plumbers who are the members of the 1st petitioner (as listed out in Exts.P1 to P12) are statutorily qualified and mandatorily licensed persons to do works specified to be done by them under the Act and the Regulations thereunder. According to them, the licence of the members of the first petitioner-Union and other petitioners is renewed and is in force. On all Kerala basis, there are about 3800-4000 licensed plumbers to the 2nd respondent-Kerala Water Authority. According to the petitioners, the work under the 2nd respondent is the sole means of their livelihood. For all connections and works connected therewith and also for the works mandated under the Act and Regulations, the service of the licensed plumbers is strictly mandatory and various procedures connected therewith also require and mandates the services of licensed plumbers like the petitioners is their contention. As per Regulation 4(a), it is mandatory that application of house connections from the mains are to be made through a licensed plumber to the Assistant Executive Engineer. Regulation 7 prescribes statutory bars and conditions for house connections and the statutory prescribed authority is the Assistant Executive Engineer. Sec.43 of the Act deals with the work relating to water connection to be done by the licensed plumbers and as per the specification etc. The term water connection is defined in Sec.2 (XXXIV) of the Act. Sec.43 of the Act imposes a statutory obligation for work to be done by licensed plumbers and also mandates the work to be done by licensed plumbers. Regulation 8 is dealing with repairs and alterations of house connections and the same mandates that the work is to be done through licensed plumbers. Therefore, the petitioners contend that when the statute indicates that all works relating to Kerala Water Authority can be either done by the authority itself or through their licensed plumbers, the respondents cannot engage any others for doing the functional household tap connections (FHTCs) referred in Exts.P15 to P186 tenders. Ext.P188 is an order passed by the Managing Director of the Kerala Water Authority dated 16.7.2013. The petitioners rely upon clause E of Annexure-A in Ext.P188 and contend that for arranging work to licensed plumbers, an empanelled list of licensed plumbers is to be maintained and the work is to be allotted on a rotation basis. According to the petitioners, Ext.P188 is in force even now. But in clause E of Annexure-A of Ext.P188, it is stated as contractors instead of licensed contractors, and hence the same was challenged before this Court by the association of the licensed plumbers and this Court after considering all the relevant provisions in the Act and Regulations held that the word 'contractors' in clause E of Annexure A to Ext.P2 shall be a contractor, who is a licensed plumber. Therefore, in the light of Ext.P189 judgment, the respondents cannot engage any other contractors or plumbers to do any work mentioned in Ext.P188, which is to be dealt with by a licensed plumber.

4. It is also the case of the petitioners that the intention of the 2nd respondent in Ext.P188 is to provide equitable distribution of work to the licensed plumbers thereunder and the same is again reflected by the concept of an empanelled list of plumbers in clause E of Annexure A to Ext.P188. According to the petitioners, the process of empanelment of licensed plumbers to enable work allocation on a rotational basis is necessary, because in such a situation equitable work distribution to all licensed plumbers would be there and there would not be any allocation of work to licensed plumbers based on the whims fancies and favouritism of the officer concerned in the divisional level or above. It is the specific case of the petitioners that Ext.P188 is not implemented in full throughout the State, but only in some places. Therefore, the petitioners pray for issuing appropriate directions directing the respondents not to provide any domestic connections, house connections, functional household Tap Connections (FHTCs) household retrofittable/ extendable water Service connections other than through licensed plumbers as envisaged under the law and by providing an equitable distribution of works for giving domestic/house connections/ Functional Household Tap Connections to licensed plumbers including in the Jal Jeevan Mission. Their case is that for the Jala Jeevan Mission, the process of empanelment of licensed plumbers as envisaged under Ext.P188 as clarified by Ext.P189 judgment of this Court would also be enforced on not merely divisional basis, but the entire state is taken as a common pool. According to the petitioners, this is to ensure that in all major works, including in the Jal Jeevan Mission Programme work, all licensed plumbers in the state should get equal and proportionate employment.

5. The form No.83 notice inviting tenders issued by the 2nd respondent to its offices in the hierarchy below is invariably the same in respect of all the tenders mentioned in Exts.P15 to P186. It is the case of the petitioners that in substance, it would refer to 'contractors' and other terms and conditions, special conditions, specifications of Kerala Water Authority etc. Ext.P187 is the true photocopy of Form No.83 notice inviting tenders for work from the office of the Executive Engineer, PH Division, Kerala Water Authority, Muvattupuzha. According to the petitioners, Exts.P15 to P187 in so far as they pertain to provide Functional Household Tap Connection (domestic/house connections/also referred to in certain tenders as household/retrofittable/extendable water service connection) other than through the licensed plumbers of the 2nd respondent is per se illegal and against the mandate of the statute. The specific case of the petitioners is that in the light of Ext.P189 judgment, this Court declared that the contractor mentioned in Clause E of Annexure-A to Ext.P2 shall mean a contractor who is a licensed plumber, the attempt of the respondents to do the work through others is unsustainable. Hence, this writ petition is filed.

6. A counter affidavit is filed by the respondent Nos. 2 to 36 disputing the facts in the writ petition. According to the Kerala Water Authority, the Water Authority does not need the expertise of the licensed plumbers as the project of Jal Jeevan Mission is going to be executed under the direct control of district officers of Kerala Water Authority. At the same time, all urban household water connection works, right from the stage of applications are still through the licensed plumbers of Kerala Water Authority till its completion. It is submitted by the Kerala Water Authority that since the water authority is going to execute the Jal Jeevan Mission Project directly, the Kerala Water Authority did not need the service from anyone outside the authority. This statement was filed on 29.1.2021. A reply affidavit is filed by the petitioners to this counter affidavit producing several documents including the information received under the Right to Information Act.

7. When these two writ petitions came up for consideration, this Court passed an interim order in both these cases and it will be better to extract the interim order dated 8.9.2020 in W.P.(C.) No.18399/2020.

"Admit.

Though the learned Standing Counsel seriously objected, in view of the interim order already passed by this court in similar cases, there shall be a direction that the proceedings in Exts P15 to P186 tenders, in so far as they pertain to provide domestic connections/house connections/Functional Household Tap Connections shall be carried on as provided in Ext P189 judgment, if the same has not been varied."

8. The order passed in W.P.(C.) No. 18234/2020 on 4.9.2020 is extracted hereunder.

“Admit.

The learned Standing Counsel seeks time to place a counter affidavit on record.

Post on 14.9.2020

In the meanwhile, the proceedings in Exhibits P1 to P36 tenders in so far as they pertain to providing functional household tap connections shall be carried on as provided in Ext.P39 judgment, if the same has not been varied.”

9. When these two writ petitions came up for consideration on 24.11.2020, the counsel for the petitioners submitted that the interim orders passed by this Court in the above two writ petitions are flouted by the officers of the respondents. Therefore, this Court directed the Managing Director of the Kerala Water Authority to file an affidavit about the allegation of the petitioners that the spirit of judgment and interim order passed by this court are flouted by the respondents. Based on the above direction, an affidavit is filed by the Managing Director of the Kerala Water Authority on 21.12.2021. In the affidavit dated 21.12.2021, the stand of the respondents is substantially changed. The relevant portion of the affidavit is extracted hereunder :

“4. Jal Jeevan Mission (hereinafter referred as JJM for short) project is a joint endeavour of the Central and State Governments and is implemented in a mission mode to provide Functional Household Tap Connections (FHTCs) to all rural households within the year 2024. The Jal Jeevan Mission will greatly benefit the rural poor, especially families in SC/ST colonies, women and families living in the hilly areas that do not have access to safe drinking water yet. The project aims at implementing complete water supply schemes including pump houses, treatment plants, reservoirs, pumping mains, gravity mains, distribution mains and ensures that safe water reaches the households through service connections under a single project. The projects are not stand alone projects to give house connections alone, but a total solution to the drinking water problem of the entire rural population of the country.

5. The mission is launched by both the Govt of India and Govt of Kerala, and is proceeded on mission mode for speedy execution. KWA is one of the implementing agency for the project. Under JJM, the existing procedure of paper works are avoided to the extent possible with IT enabled processes like geo-tagging and e-abacus. A large number of households remains to be covered with tap connection. But they are not coming up to take connections due to the existing procedures and paper works. Hence the drive in the JJM to eliminate complicated paper procedures by introducing IT enabled processes.

6. It is further submitted that as far as Kerala is considered, around 44.20 lakh connections are remaining to be provided for attaining 100% saturation within a span of 3 years. Hence to complete the mission in time, projects are to be planned and executed in large scale so that the rural poor gets the benefits as envisaged in the scheme at the earliest and without fail.

7. It is submitted that after the interim of this Hon'ble Court, the Kerala Water Authority has incorporated a new condition in the contract condition No. 15 of the Special Conditions for JJM Contract, for the execution of that part of work for providing FHTCs(Functional house hold tap connections) The said condition reads thus “The successful bidder should produce an MOU with any licensed plumber of KWA preferably from that division concerned and in accordance with existing rules of KWA and as to the execution of works of FHTC through the licensed plumber." The Special conditions for JJM Contract is produced herewith and marked as Annexure R2(a). The special conditions in the contract was amended and incorporated the said condition to ensure full compliance of the interim order of this Hon'ble Court. Accordingly the contractors are executing agreements with the licensed plumbers of Kerala Water Authority including the Petitioners. As of now the apprehension of the petitioners are out of place.

8. Thus the licensed plumbers are provided with the opportunity to get involved with the noble works of providing FHTCs to rural households, as the part of work to provide FHTCs will be carried out through licenced plumber which is ensured by the MOU, undertaken by the contractors awarded with the work. The mode of execution of public work is through e-tender process from contractors of A,B,C,D category, depending on the value of work. At the same time, the licensed plumbers are given the opportunity to undertake the part of work to provide FHTC. A copy of MOU entered into by a licensed plumber Sri T A Meethiyan with the Contractor Sri K I Poulose for the work JJM - Paipra Panchayath - providing functional household tap connection to rural households in Paipra Panchayath in Ernakulam District is produced herewith and may be marked as Annexure R2(b).Similar MOUs are executed by all the contractors throughout Kerala.

9. It is further submitted that the tender for providing FHTCs in rural households are already in advanced stages of award and execution and any interference at this stage will adversely affect the noble cause of providing pipe connection to every rural households under JJM. Moreover the part of work for providing FHTCs will be carried out only through qualified and licensed plumbers, which is ensured by insisting MOU with licensed plumber, whenever the contractor was awarded with the work

10. It is humbly submitted that the interim orders of this Hon'ble Court in the above case and Exhibit P36 judgments are not flouted in any manner. The allegation against the Kerala Water Authority is baseless and are made with ulterior motives. The petitioners did not raise any allegation in this regard would indicate that there was no violation of the order of this Hon'ble Court. Such an allegation is raised on when the matter was taken up for final hearing, that too without any proof and pleadings. ”

(underline supplied)

10. Heard Adv.M.P.Ramnath, the learned counsel for the petitioners in these two writ petitions. I also heard the learned Standing Counsel appearing for the Kerala Water Authority.

11. The point to be considered by this Court is very limited in the light of Ext.P189 judgment of this Court. After considering the relevant provisions in the Act and Regulations, this Court without any doubt declared that the domestic connections can be granted only in accordance with the statutory provisions and the work in relation to the same can be done only through the licensed plumbers. This Court also observed that even assuming that a contractor is permitted to do the work, the said contractor should be a licensed plumber. This Court considered Ext.P188, which is an order passed by the Managing Director of the Kerala Water Authority. This Court specifically considered Clause E to Annexure-A of Ext.P188. Clause E of Ext.P188 is extracted hereunder :

“E. procedure for works connected with granting of connections(day 8 to 10)

> in the case of work directly executed by KWA, Assistant Engineer shall arrange the connection work through department staff/contractor or through empanelled licensed plumbers.

> In case of work directly done through licensed plumbers, the connection shall be provided on obtaining a completion certificate.

> Connections shall be provided only in the presence of a designated department officer. The designated officer shall certify his presence in writing and record it in the connection file.

> For arranging work through licensed plumbers, an empanelled list of plumbers shall be maintained and works allotted on rotation.”

12. This Court after considering this Clause, observed in Ext.P189 judgment that the word 'contractor in Clause E of Annexure to Ext.P188 shall mean “a contractor who is a licensed plumber'. Therefore, Ext.P188 order of the Managing Director of the Kerala Water Authority is modified by this Court as per Ext.P189 judgment and there is no dispute that Ext.P188 as modified by this Court is in force even now. It will be better to extract the relevant portion of Exhibit P189 Judgment:

6. “Having heard the learned counsel on either side and having perused the records, the only question that requires consideration is whether the interpretation of the word “contractor” in Annexure to Ext.P2 was in accordance with the statute or not. Licensed plumber is defined under Section 2(xb) as under:-

“(xb) “licensed plumber” means a plumber who is provided with a licence by the Authority to executive works relating to any water connection or domestic or non-domestic sewer connected to sewerage of the Authority, under Section 43 and 47B.”

7. Section 43(1) reads as under:-

“43. Works relating to water connection to be done by licensed plumbers and as per specifications etc.

(1) No person other than a plumber licensed by the Authority or person duly authorized by it shall execute any work relating to a water connection, not being a work of a trivial nature and to person shall permit any such work to be executed by a person other than such a person.”

8. Rule 8(a) of the Kerala Water Authority (Water Supply) Regulations 1991 reads as under:-

“8. Repairs or alterations of the house connections (a) Repairs or alterations to house connections shall be made only through the Authority or through plumbers duly licenced by the Authority and in such cases previous sanction for the repair or alteration, as the case may be, shall be obtained from the Assistant Executive Engineer.”

Rule 9 relates to disconnection of the house connection, Rule 10, casual connection and Rule 11 relates to construction, repairs, alterations, extension of inside installations etc. There cannot be any dispute regarding the aforesaid statutory provisions. In all the aforesaid provisions as well as the regulations, work is to be done by the licensed plumber. Apparently, when the statute clearly indicates that all works relating to Kerala Water Authority can be either done by the authority itself or through their licensed plumbers, necessarily, incorporation of the word “contractor” in the Annexure may give rise to a doubt as to whether such work is also being entrusted to the contractors who are not licensed plumbers.

9. Going by Ext.P2 circular, it is rather clear that the Board has only decided to delegate the receipt of applications and processing of applications to the Assistant Engineer having jurisdiction of the area. The resolution passed is to extend the option to the applicant to execute the work connected with granting of connections either directly through the authority or through a licensed plumber duly authorised by the authority. When the Board order clearly indicates that the work has to be done either through the authority or through a licensed plumber duly authorised by the authority, there was no reason to incorporate the word “contractor” in the Annexure. As already indicated by the learned counsel for the respondent, Ext.P2 order is issued based on resolution No.9427 dated 30/4/2013. In Ext.P2, there is a reference to Annexure A as well. Even assuming for the sake of argument that the Annexure is approved by the Board, it is against the statutory format. Domestic connections can be granted only in accordance with the statutory provisions and the work in relation to the same can be done only through licensed plumbers. Even assuming that a contractor is permitted to do the work, the said contractor should be a licensed plumber.

10. In the said circumstances, I am of the view that instead of quashing Ext.P2, it is suffice to clarify that, the word “contractor” in Clause E of Annexure to Ext.P2 shall mean “a contractor who is a licensed plumber”.

In the light of the above judgment, the Kerala Water Authority is bound by the directions in Ext.P188 as modified by this Court in Ext.P189 judgment.

13. If we go through the affidavit dated 21.12.2021 of the Managing Director of the Kerala Water Authority, it is clearly stated by him in it that the licensed plumbers are provided with the opportunity to get involved with the noble works of providing FHTCs to rural households as part of work to provide FHTCs and the work will be carried out through licensed plumbers, which is ensured by the MOU, undertaken by the contractors awarded with the work. It is also stated that based on the interim order passed by this Court, the Kerala Water Authority has incorporated a new condition in the contract as condition No.15 of the special condition for JJM contract for the execution of that part of the work for providing FHTCs. Annexure-R2(a) is the special condition for JJM contract and Clause 15 of Annexure-R2(a) is the relevant clause, which is extracted hereunder :

"15. The execution of that part of work for providing FHTCs(Functional household tap connections) shall be in accordance with the interim order in WP(C) 18399/2020 dt. 08.09.2020 and subsequent orders, if any. The successful bidder should produce an MOU with any licenced plumber of KWA preferably from that division concerned and in accordance with existing rules of KWA and as to the execution of works of FHTC through the licenced plumber."

14. In the light of the above Clause, there may not be much grievance to the petitioners. But, the counsel for the petitioners says that this is misused by the officials of the Kerala Water Authority and they pick and choose some licensed plumbers and obtain a memorandum of understanding in violation of the clauses in Ext.P188. In Ext.P188, it is stated that for arranging work through licensed plumbers, an empanelled list of licensed plumbers shall be maintained and the works are to be allotted on rotation. As long as Ext.P188 is in force, the officers of the Kerala Water Authority are bound by Ext.P188. Similarly, as long as the provisions in the Act and Regulations regarding the right of licensed plumbers are in force, the officers of the Kerala Water Authority are bound to obey the same, especially in the light of Ext.P189 judgment. If there is any difficulty to the water authority to implement those conditions, their remedy is not to violate the same but to take steps to get it amended in accordance with the law.

15. The counsel for the petitioners takes me through some of the information obtained under the Right to Information Act from different offices of the second respondent which is produced along with the reply affidavit dated 24.3.2021. The questions were raised mainly about the utilisation of unlicensed plumbers by the water authority officials. Ext.P191 says ignorance about the connection given as per the Jal Jeevan project through licensed plumbers. Ext.P192 i

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s a question raised by the President of the Union in which question No.4 is about the number of connections given as per Jal Jeevan Mission through unlicensed plumbers. Ext.P193 reply shows that there were 483 connections given. Similarly, Ext.P195 shows that the work is not given through licensed plumbers. From these documents, it is clear that the officials of the Kerala Water Authority is engaging unlicensed plumbers for the work of the Jal Jeevan project. It contradicts the version of the Managing Director of the 2nd respondent in the affidavit dated 21.12.2021. As I observed earlier, as long as the provisions in the Act and Regulations are in force and as long as Ext.P188 which is modified by this Court in Ext.P189 is in force, the respondents are bound to engage the licensed plumbers only for the works. If there is any practical difficulty to the Kerala Water Authority for engaging the licensed plumbers alone, they have to consult the Government and other stakeholders and get the Act and Regulation amended. Till the Act and Regulations are amended, the Water Authority is bound by the provisions in the Act and Rules, which is already interpreted by this Court in Ext.P189 judgment. Since it is stated in the affidavit filed by the Managing Director of the 2nd respondent that only licensed plumbers will be engaged in Exhibit P15 to P186 work also, and since it is stated that those works are in advanced stages, the tender notice need not be set aside, but suitable directions can be issued to redress the grievance of the petitioners. Therefore, these writ petitions are allowed in the following manner : 1) The official respondents of the Kerala Water Authority are directed to engage the licensed plumbers for providing Functional Household Tap Connections (FHTCs), which is also referred to in certain tenders in Exts.P15 to P186 as Household Retrofittable Extendable Water Service Connections. 2) The 2nd respondent and its officers are directed not to provide any Domestic Connections/House connections/Functional Household Tap Connections also referred to in certain cases as Household Retrofittable/Extendable Water Service Connections other than through licensed plumbers as envisaged under the law. 3) The 2nd respondent and its officers are directed to provide equitable distribution of work for giving domestic/house connections, Functional Household Tap Connection also referred to in certain cases as Household Retrofittable/Extendable Water Service Connection to licensed plumbers including under the Jal Jeevan Mission and maintain an empanelled list of licensed plumbers and see that the works allotted on a rotation basis as envisaged in Ext.P188 and as clarified by Ext.P189 judgment. The above exercise should be completed as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.
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