IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Friday, the 17th day of June 2022 / 27th Jyaishta, 1944
W.A.NO. 730 OF 2022
AGAINST THE JUDGMENT DATED 03.06.2022 IN W.P.(C) 14968/2022 OF THIS COURT
APPELLANT/PETITIONER IN WP(C):
M/S.THOPPIL CONSTRUCTION (INDIA) PVT. LTD., THOLIKUZHY, ADAYAMON
P.O., KILIMANOOR, THIRUVANANTHAPURAM 695614 REPRESENTED BY ITS
MANAGING DIRECTOR, NIZAMUDEEN A.
BY ADVS. M/S.SURIN GEORGE IPE, SREEDEV U. & ADHIL P.
RESPONDENTS/RESPONDENTS 1 TO 4 IN WP(C):
1. KERALA ROAD FUND BOARD PROJECT MANAGEMENT UNIT, SREEBALA BUILING, T
C 11/339, 5TH FLOOR, KESTON ROAD, NATHANCODE, KOWDIAR P.O.,
THRIVANANTHAPURAM - 695003. REPRESENTED BY ITS PROJECT DIRECTOR
2. EXECUTIVE ENGINEER,KERALA ROAD FUND BOARD PROJECT MANAGEMENT
UNIT, SREEBALA BUILDING, TC 11/339, 5-TH F KESTON ROAD, NANTHANCODE,
KOWDIAR P.O., THIRUVANANTHAPURAM - 695003
3. KERALA INDFRASTRUCTURE INVESTMENT BOARD(KIIFB), 2ND FLOOR, FELICITY
CENTRE, MAHATMA GANDHI ROAD, STATUE, THIRUVANANTHAPURAM 695001.
REPRESENTED BY ITS CHEIF EXECUTIVE OFFICER
4. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD.,
NEDUMANGAD, THIRUVANANTHAPURAM - 695541.
BY SRI.K.V.MANOJ KUMAR, STANDING COUNSEL for R1 & R2
SRI.S. CHANDRASEKHARAN NAIR, STANDING COUNSEL for R3
SRI.RIJI RAJENDRAN, STANDING COUNSEL for R4
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay all further procedings initiated by the respondent to en-cash the
bank guarantee and treasury deposit submitted at the time of executing the
agreement, pending disposal of the writ appeal.
This Writ Appeal coming on for orders on 17.06.2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
[P.T.O.]
EXT. P8: TRUE COPY OF THE PHOTOGRAPHS SHOWING THE COMMENCEMENT OF THE WORK BY
PETITIONER
EXT.P9: TRUE COPY OF THE RELEVANT PAGES OF THE TENDER NOTICE DATED 19.04.2022
S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
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W. A. No. 730 of 2022
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Dated this the 17th day of June, 2022
ORDER
S. Manikumar, C. J.
Appellant had preferred W. P. (C) No. 5837 of 2022 seeking the issuance of a writ of mandamus directing the respondents not to terminate the contract executed by the appellant and encash the amounts submitted by the appellant at the time of the contract. Appellant had further sought for the expeditious consideration of representation dated 15.12.2021 and to stay the encashment of the amounts submitted by the appellant till the disposal of the representation.
2. Appellant had preferred W.P. (C) No. 6846 of 2022 seeking the issuance of writ of certiorari to quash the termination order dated 18.02.2022 issued by the 1st respondent.
3. As both the writ petitions pertain to contract / termination, issues being interconnected, they were taken up together, and the writ W. A. No. 730 of 2022 -2- court, by common judgment in W. P. (C) Nos. 5837 and 6846 of 2022 dated 04.04.2022, set aside Ext. P8 termination order, which is the subject matter of challenge in W.P. (C) No. 6846 of 2022, and ordered thus:-
"In the circumstances, the writ petitions are disposed of setting aside Ext.P8 in W.P.(C) No.6846 of 2022 and directing the respondents to permit the petitioner to complete the work undertaken by the petitioner within a period of 45 days from the date of receipt of a copy of this judgment. The respondents shall also process the 8th and part bill submitted by the petitioner in the meanwhile, and make payment found due to the petitioner under the said Bill. It is made clear that irrespective of payment or non- payment of the part bill, if the petitioner fails to complete the work within 45 days as directed above, the respondents will be free to proceed against the petitioner in accordance with the terms of the contract and in accordance with law.
4. When the matter stood thus, Project Director, Kerala Road Fund Board Project Management Unit, Thiruvananthapuram, the 1 st respondent, has issued notice inviting tender dated 19.04.2022, in respect of the same work, for which contract was already awarded, terminated and set aside by common judgment in W. P. (C) Nos. 5837 and 6846 of 2022 dated 04.04.2022 W. A. No. 730 of 2022 -3-
5. Subsequent action of the Project Director, the 1 st respondent, namely notice inviting tender dated 19.04.2022 was challenged in W. P. (C) No. 14968 of 2022. Writ court, by judgment dated 03.06.2022, dismissed the same as hereunder:-
"The challenge in this writ petition is against Ext.P9 notice inviting tender for the work of carrying out improvements to the Vamanapuram - Chittar road. The alleged delay on the petitioner's part has resulted in the work being re-tendered under Ext.P9. The petitioners had approached this Court earlier and by Ext.P5 judgment the time for executing the contract was extended by 45 days. The learned Counsel for the petitioner argued in extenso as to the reasons for not completing the work within the time granted under Ext.P5 judgment. Learned Standing Counsel for the 1st respondent submitted that the reasons are frivolous and the attempt through this writ petition is to get the time granted under Ext.P5 extended. Having carefully perused Ext.P5 judgment, I find that the prayer sought in this writ petition cannot be granted since, that would, in effect, amount to modification or review of Ext.P5 judgment. The petitioner should therefore seek review or modification of the judgment, rather than filing a fresh writ petition.
The writ petition is hence closed, reserving the petitioners right to seek appropriate remedy."
6. Being aggrieved by the later judgment, instant writ appeal is W. A. No. 730 of 2022 -4- filed.
7. Inviting the attention of this Court to the common judgment made in W. P. (C) Nos. 5837 and 6846 of 2022 dated 04.04.2022, by which the writ court has already set aside Ext. P8 termination dated 19.02.2022 and the grant of 45 days time, to complete the remaining work, Mr. Surin George Ipe, learned counsel for the appellant, submitted that even before the completion of the abovesaid period of 45 days, the Project Director, Kerala Road Fund Board Project Management Unit, Thiruvananthapuram, the 1st respondent, has issued a notice inviting Ext. P9 tender dated 19.04.2022 in W. P. (C) No. 14968 of 2022, which is erroneous.
8. He further submitted that when there were no bidders, the Project Director, Kerala Road Fund Board Project Management Unit, Thiruvananthapuram, the 1st respondent, issued another notification dated 09.06.2022.
9. Giving due consideration to the submissions and the material on record, we find that when Ext. P8 challenge in W. P. (C) No. 6846 of 2022, has already been set aside, and the writ court has already granted 45 days time to complete the demand work, the Project W. A. No. 730 of 2022 -5- Director, Kerala Road Fund Board Project Management Unit, Thiruvananthapuram, the 1st respondent, ought not have issued Ext. P9 notice inviting tender dated 19.04.2022 in W. P. 14968 of 2022.
10. Going by the submissions and material on record, we are of the view that the respondents should not proceed further with notice dated 09.06.2022. Status quo shall be maintained.
11. Mr. K. V. Manoj Kumar, learned Standing Counsel, takes notice for respondent Nos. 1 and 2.
12. Mr. S. Chandrasekharan Nair, learned Standing Counsel, takes notice for the 3rd respondent.
Mr. Riji Rajendran, learned Standing Counsel, takes notice for the 4th respondent.
Post on 22.06.2022 Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb 17-06-2022 /True Copy/ Assistant Registrar