IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 4TH DAY OF JANUARY 2021/14TH POUSHA, 1942
WP(C).No.14903 OF 2020(K)
PETITIONER:
K.ABDUL REHIMAN,THOTTARIKIL PURAYIDOM,
KALANJOOR P.O., PATHANAMTHITTA.
BY ADVS.
SRI.R.JAIKRISHNA
KUM.NARAYANI HARIKRISHNAN
RESPONDENTS:
1 KERALA POLICE HOUSING AND CONSTRUCTION
CORPORATION LTD,CHANDRASEKHARAN NAIR
STADIUM, PALAYAM, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM - 695 033,
REPRESENTED BY ITS MANAGING DIRECTOR.
2 CHIEF ENGINEER, KERALA POLICE HOUSING AND
CONSTRUCTION CORPORATION LTD.,
CHANDRASEKHARAN NAIR STADIUM,
PALAYAM, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM -695 033.
3 PROJECT ENGINEER, KERALA POLICE HOUSING AND
CONSTRUCTION CORPORATION LTD.,
OFFICE OF THE SUPERINTENDENT OF POLICE,
NEAR RAILWAY STATION, KOLLAM H.P.O.,
KOLLAM - 691 001.
R1-R3 BY ADV. SRI.C.K.GOVINDAN
R1-R3 BY ADV. SRI.L.P.ARAVINDAKSHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04-01-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WPC No.14903/2020
:2:
N. NAGARESH, J.
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W.P.(C) No.14903 of 2020
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Dated this the 4th day of January, 2021
JUDGMENT
~~~~~~~~~ Petitioner, a Class-B Contractor, has filed this writ petition seeking to quash Ext.P12 revised estimate, Ext.P13 termination notice and Ext.P15 termination order and to permit the petitioner to carry out the balance contract work of construction of new Police Station at Sooranadu, Kollam Rural (DSOR 2016 with new cost index).
2. The petitioner states that he is a Class-B Contractor who has successfully undertaken and completed various works of the 1st respondent-Kerala Police Housing and Construction Corporation Limited, Local Self Government Department (LSGD) and Public Works Department (PWD). The petitioner participated in Ext.P1 WPC No.14903/2020 :3: Notice Inviting Tender with respect to the work "Construction of new Police Station at Sooranad, Kollam Rural (DSOR 2016 with new cost index)". The PAC for the tender was ₹93,87,277/-. The petitioner quoted 7.72% below the estimate rate. The tender of the petitioner was accepted on 19.10.2019. Ext.P4 agreement was also executed on 21.11.2019.
3. However, the 1st respondent did not issue work order immediately. Ext.P5 selection notice/work order was issued on 14.01.2020. The work site was handed over to the petitioner only on 15.01.2020. The time for completion of work was 11 months from the date of handing over of the site. Since the site was handed over on 15.01.2020, the time for completion of work would expire only on 15.12.2020.
4. The petitioner states that on getting the site handed over, the petitioner commenced the work and within two months, by 13.03.2020, the petitioner had completed the work of foundation, column and plinth beam. Completion of such work was much in advance than the work schedule. WPC No.14903/2020 :4: After completion of the work, the petitioner noticed certain inadequacies in Ext.P3-BOQ as well as with respect to plastering work. The earth work for filling the foundation was fixed as 63.5430 m³. The said quantity was inadequate to fill the foundation. At least 170 m³ of earth was required. Similarly, plastering of the walls suggested by the 3rd respondent would have led to cracks in the wall in future. The petitioner suggested that roof and the pillars shall be concreted along with the construction of the walls. The petitioner made these suggestions as per Ext.P7 on 15.04.2020 to the 1st respondent.
5. After substantial completion of the work on 13.03.2020, Covid-19 pandemic broke out across India and nationwide lock down was declared. The petitioner therefore could not carry on with the work. However, on 25.05.2020, the 3rd respondent-Project Engineer issued Ext.P8 letter stating that the Government of Kerala has granted relaxation and the petitioner has not still commenced the work. The petitioner submitted Ext.P9 reply to Ext.P8 letter, on WPC No.14903/2020 :5: 05.06.2020, wherein the petitioner specifically pointed out the progress of the work already achieved and that further work can be carried out only on the respondents approving sufficient quantities of earth for filling the foundation.
6. Without regard to Ext.P9, the 1 st respondent issued Ext.P10 letter dated 08.06.2020 directing the petitioner to restart the work urgently. Ext.P10 contained a direction to the 3rd respondent to submit a revised estimate for the work including required alteration/addition, if any, for the satisfactory completion of work. However, there was no reference in Ext.P10 as to the inadequacies pointed out by the petitioner. The 3rd respondent thereupon issued Ext.P11 letter dated 11.06.2020 stating that all the inadequacies highlighted by the petitioner were addressed in the revised estimate and directed the petitioner to commence the work.
7. Exts.P10 and P11 referred to a "revised estimate". The petitioner was kept in dark about the revision. On enquiry, the petitioner was informed by the 3 rd respondent that the BOQ was revised and the petitioner was required to WPC No.14903/2020 :6: proceed the work as per the revised estimate. The petitioner had not received any official communication in respect of the revised estimate. The revised estimate was forwarded by the 3rd respondent to the petitioner by email only on 19.06.2020, as per Ext.P12.
8. Ext.P12 revised estimate was without prior concurrence of the petitioner. The petitioner had accepted the tender based on Ext.P1 tender notice and Ext.P3-BOQ, which was for a sum of ₹93,87,277/-. The revised estimate of ₹1,26,78,519/- was not fixed with the concurrence of the petitioner. To the surprise and predicament of the petitioner, the 2nd respondent issued Ext.P13 termination notice on 17.06.2020 stating that the petitioner has failed to complete the work within the time and failed to maintain the required progress so as to complete the work in time.
9. The petitioner submitted Ext.P14 letter to the 1 st respondent. In Ext.P14 also, the petitioner pointed out that the revised estimate prepared by the respondents is inadequate. The petitioner requested that he be given 12% WPC No.14903/2020 :7: of the amount cut from the bill relating to the GST. The petitioner also pointed out that deduction of ₹25,000/- consequent to the alleged delay in work, is unsustainable. The petitioner again pointed out the necessity to revise the quantity of earth filling work. The petitioner requested the respondents to permit him to continue and complete the work.
10. The 2nd respondent, however, without adverting to the contentions of the petitioner, issued Ext.P15 termination order. Ext.P15 termination order dated 02.07.2020 was communicated to the petitioner be by email on 13.07.2020. The petitioner would submit that the hasty termination proceedings initiated and concluded by the respondents are with ulterior motives and malafide intentions.
11. The 1st respondent filed a counter affidavit in the writ petition. The 1st respondent pointed out that stipulated time of contract of work was 11 months from the date of handing over the site. The site was handed over on 15.01.2020. There was a slight delay in settling part bill of the WPC No.14903/2020 :8: petitioner due to technical issues. The petitioner as per his letter dated 15.04.2020 informed that he has completed the work up to plinth beam before the first lock down. The 3 rd respondent has reported that as per the schedule, the structure of the new Police Station, Sooranadu is to be constructed as framed structure. But, the petitioner is suggesting to construct the building as load-bearing structure. The petitioner is responsible for the defects, if any, occurred in the construction.
12. The 1st respondent further stated that by Ext.P10 letter dated 08.06.2020, the petitioner was required to resume the work urgently as per the agreed plan. However, the petitioner informed that it is not possible to restart the work without getting permission for filling earth and has requested to inform the decision urgently. A meeting was arranged by the District Police Chief, Kollam Rural for discussing the issue in the construction. The petitioner did not attend the meeting or restart the work. Accordingly, the termination notice was issued to the petitioner. WPC No.14903/2020 :9:
13. The 1st respondent further stated that structural design of the work was prepared by an outside agency and the same was approved by the Chief Engineer. Revised estimates for the above work by incorporating the earth filling and other additional items were already prepared. Since the petitioner delayed execution of agreement, a penalty of ₹25,000/- was imposed. The Police Department had given direction to complete the work before 14.12.2021 (sic). The petitioner completed only 15% of the work. The lapses and failure on the part of the petitioner to maintain the required progress in the work was the reason for termination of the contract.
14. I have heard the arguments raised by the counsel for the petitioner and the arguments of the counsel for respondents 1 to 3.
15. The work site was handed over to the petitioner only on 15.01.2020. Therefore, the time for completion of work will be up to 14.12.2020. There is no dispute as regards the fact that the petitioner completed the work of foundation, WPC No.14903/2020 : 10 : column and plinth beam within two months by 13.03.2020. Even according to the counter affidavit filed by the 1 st respondent, 15% work had been completed by the petitioner. The nationwide lock down was declared across the country soon thereafter.
16. On 15.04.2020, during the lock down period, the petitioner sent Ext.P7 letter to the 1st respondent pointing out that requisite quantity of earth filling has not been provided in the schedule of work and sought changes in that regard. According to the petitioner, he held a discussion with the then Project Engineer and suggested that above the plinth, brickwork and filler work should be done together before concreting the top which would reduce the possibility of appearing cracks in the construction. However, the new Project Engineer did not accept the said suggestion and directed to proceed with the pillar work and concreting the top and to carry out brickwork subsequently. The petitioner informed the 1st respondent as per Ext.P7 that if work is carried out in that manner, there is a strong possibility of WPC No.14903/2020 : 11 : cracks occurring and that the security period being five years, the petitioner may not be able to secure the work for five years.
17. Ext.P7 was submitted on 15.04.2020. On 25.05.2020, the Project Engineer, without referring to Ext.P7, directed the petitioner to restart the work. Without getting any approval for the larger quantum of earth filling work and without getting further answer to the issues pointed out by the petitioner as regards carrying out brickwork and pillar work together, the petitioner could not have been expected to restart the work. By Ext.P9 dated 05.06.2020, the petitioner sent letter to the Project Engineer again reminding him that no permission has been granted in respect of the filling work.
18. However, the 2nd respondent again issued Ext.P10 letter dated 08.06.2020, requiring the petitioner to restart the work urgently. Though Ext.P10 letter of the 2 nd respondent referred to Ext.P7 request made by the petitioner, no decision in that regard was communicated to the petitioner in Ext.P10.
WPC No.14903/2020 : 12 :
19. By by Ext.P11 letter dated 11.06.2020, the Project Engineer informed the petitioner that he should construct the structure as framed only. In between RCC and Masonary joints Chicken Mesh were considered in Revised Estimate for avoiding the cracks. The plinth filling earth quantity may deviate and that also is considered in the revised estimate. The petitioner would submit that Ext.P11 was the first communication intimating about the revision of estimate. Ext.P12 revised estimate was prepared without consulting the petitioner.
20. A perusal of Clause 1.17 of Ext.P3 schedule and the additional specification at serial No.16 of Ext.P12 would show that the concern and requirement made by the petitioner as regards earth filling work was genuine and the respondents have increased the quantity of earth filling from 63.5430 m³ to 160.947 m³. The revised estimate was communicated to the petitioner only on 19.06.2020. The delay in executing the work from 13.03.2020 till Ext.P12 revised estimate was communicated on 19.06.2020, cannot WPC No.14903/2020 : 13 : be attributed to the petitioner. However, it is seen that even before Ext.P12 revised estimates was communicated to the petitioner, the 2nd respondent issued Ext.P13 termination notice holding that the petitioner has failed to maintain the required progress in work. Going by the sequence of events including the lock down consequent to pandemic and going by the sequence of communications between the petitioner and the respondents, this Court is of the definite opinion that Ext.P13 termination notice issued to the petitioner even before communicating Ext.P12 revised estimates, is highly arbitrary and cannot be justified on any grounds.
21. The petitioner, however, offered to complete the work in his Ext.P14 letter addressed to the 1 st respondent on condition that the respondents release certain amounts unnecessarily retained from his bill amounts. In this regard, it is to be noted that an amount of ₹25,000/- was deducted from the bill amount due to the petitioner. The reason for deduction given in the counter affidavit is that as per the agreement condition, the selected contractor shall execute WPC No.14903/2020 : 14 : an agreement within a maximum period of 14 days from the date of acceptance of the tender and fine at the rate of 1% of contract amount subject to a minimum amount of ₹1,000/- and a maximum of ₹25,000/- shall be levied if agreement is not executed within 10 days after the notified period of 14 days.
22. In this regard, it has to be noted that a selection notice/work order was issued to the petitioner as per Ext.P5 dated 14.01.2020. Paragraph 3 of Ext.P5 selection notice required the petitioner to execute necessary agreements in non-judicial stamp paper within 14 days of receipt of Ext.P5 letter. Paragraph 3 of Ext.P5 would show that the respondents expected the petitioner to execute the agreement within 14 days of issuance of selection notice/work order. In fact, the petitioner had executed the agreement on 20.11.2019 even before the issuance of Ext.P5 selection notice/work order. In the circumstances, the action of the respondents in deducting amounts from the payment due to the petitioner for delayed execution of WPC No.14903/2020 : 15 : agreement, cannot also stand the scrutiny of law.
23. All the above facts would show that the petitioner was not provided with sanctions and help which are expected to be provided by the 1 st respondent. The work could not have been completed without there being a revision in the quantum of earth filling work. The petitioner had pointed out this fact as early on 15.04.2020, as per Ext.P7. The respondents communicated to the petitioner about revision of the quantum of earth filling work only on 19.06.2020 as per Ext.P12. Ext.P12 would show that the requirements made by the petitioner was genuine. However, the respondents sat on the requirement till 19.06.2020. Even before communicating the revised estimates, the 2nd respondent issued Ext.P13 termination order on 17.06.2020. Exts.P13 and P15 therefore have to be held as highly arbitrary and illegal.
24. In the circumstances, Exts.P13 and P15 orders passed by the respondents are set aside. The respondents ought to have arrived at revised estimates in consultation WPC No.14903/2020 : 16 : with the petitioner. Ext.P12 revised estimate was drawn unilaterally. Therefore, respondents 1 to 3 are directed to reconsider Ext.P12 revised estimate in consultation with the petitioner at the earliest and take decision afresh in that manner. The petitioner shall be given reasonable time for completion of work, if necessary after getting supplemental agreements executed by the petitioner.
The writ petition is allowed as above.
Sd/-
N. NAGARESH, JUDGE aks/28.12.2020 WPC No.14903/2020 : 17 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTICE INVITING TENDER ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE GENERAL TENDER CONDITION ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE BOQ OBTAINED FROM THE WEBSITE OF THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE SELECTION NOTICE/WORK ORDER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE PROGRESS CHART PREPARED BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P9 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P12 TRUE COPY OF THE REVISED ESTIMATE SENT BY THE 3RD RESPONDENT TO THE PETITIONER.
WPC No.14903/2020
: 18 :
EXHIBIT P13 TRUE COPY OF THE TERMINATION NOTICE
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P14 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE TERMINATION ORDER ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P16 TRUE COPY OF THE E-MAIL COMMUNICATION
SENT BY THE PETITIONER TO THE 3RD
RESPONDENT.