Kerala High Court
Mohammed Akbar.V vs State Of Kerala on 9 July, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:50167
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
WP(C) NO. 31965 OF 2024
PETITIONER:
MOHAMMED AKBAR.V
AGED 46 YEARS
S/O. ABDUL HAJI, VEMMULLY HOUSE,
EDAYATTUR P.O, MELATTUR,
MALAPPURAM DISTRICT, PIN - 679326
BY ADVS.
SHRI.JACOB SEBASTIAN
SHRI.WINSTON K.V
SMT.ANU JACOB
SHRI.BHARATH KRISHNAN G.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT,
GOVERNMENT SECRETARIAT, SECRETARIAT P.O,
THIRUVANANTHAPURAM, PIN - 695001
2 THE SUPERINTENDING ENGINEER
PUBLIC WORKS DEPARTMENT,
OFFICE OF THE SUPERINTENDING ENGINEER,
NORTH CIRCLE, PWD COMPLEX,
KOZHIKODE DISTRICT, PIN - 673001
3 THE EXECUTIVE ENGINEER
PUBLIC WORKS DEPARTMENT (BUILDINGS) DIVISION,
2025:KER:50167
W.P.(C) No.31965/2024
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OFFICE OF THE EXECUTIVE ENGINEER,
CIVIL STATION, PALAKKAD DISTRICT,
PIN - 678001
4 THE ASSISTANT EXECUTIVE ENGINEER
PUBLIC WORKS DEPARTMENT (BUILDINGS),
OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER,
SUB-DIVISION CHITTUR, PUDUNAGARAM P.O,
PALAKKAD DISTRICT, PIN - 678101
5 THE ASSISTANT ENGINEER
PUBLIC WORKS DEPARTMENT (BUILDINGS) SECTION,
OFFICE OF THE ASSISTANT ENGINEER, ALATHUR,
PALAKKAD DISTRICT, PIN - 678541
BY SMT. ANIMA M., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.06.2025, THE COURT ON 09.07.2025
DELIVERED THE FOLLOWING:
2025:KER:50167
W.P.(C) No.31965/2024
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N. NAGARESH, J.
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W.P.(C) No.31965 of 2024
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Dated this the 9th day of July, 2025
JUDGMENT
~~~~~~~~~ Petitioner is a PWD A-Class Contractor. The petitioner undertook the work of construction of building for the Government UP School at Kanakkanthuruthy in Palakkad District. An agreement was executed on 10.07.2020. The work had to be completed within 15 months.
2. The petitioner states that after executing the agreement, the petitioner requested the 4 th respondent to handover the site. The site was not ready for handing over as there were two old buildings in the site and those buildings 2025:KER:50167 W.P.(C) No.31965/2024 :4: had to be demolished. The 4 th respondent later informed the petitioner that the site is ready for handover. The petitioner inspected the site and found that the site was full of debris and is not hindrance free.
3. The petitioner informed respondents 4 and 5 that the work of excavation for site levelling and depositing the excavated earth on bank could not be executed since there was no space available for depositing the excavated earth in the site premises. Later, the 3 rd respondent made arrangements for auctioning the excavation and removal of earth from the site. The petitioner had to return the site to the Department for this purpose.
4. Thereafter, when the petitioner visited the site, he found two big roots of trees left at the site which could not be handled even by the excavators. After repeated requests, the site was handed over to the petitioner in July, 2021. Since many items which were not originally provided for in the agreement had to be executed, the Department 2025:KER:50167 W.P.(C) No.31965/2024 :5: decided to revise the estimate. In October 2021, the Assistant Engineer recommended revised estimate for the work. The revised estimate was approved only on 22.07.2024 as per Ext.P2. In the circumstances, the petitioner could complete the work only by March, 2023. The school building was used from the academic year 2023-2024.
5. The petitioner submitted Ext.P4 letter to the 2nd respondent requesting to extend the time for completing the work upto 31.03.2023 with the same terms and conditions of agreement, without fine. There was no response to Ext.P4. In addition to the agreed terms, the petitioner was called upon to execute some extra items of work which were executed. The petitioner submitted his bills and the final bill was for ₹70,00,000/-. The Department approved the revised estimate. The petitioner was issued with Ext.P5 letter dated 26.07.2024 requiring him to execute a supplementary agreement so that his bill can be processed.
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6. When the petitioner approached the 2 nd respondent in response to Ext.P5, the petitioner learnt that the respondents have imposed an amount of ₹20,43,844/- as fine/penalty for delayed completion of work. The 2 nd respondent stated that the petitioner was exclusively responsible for the delay and the supplementary agreement could be executed only on accepting the penalty.
7. The petitioner submitted Ext.P6 representation to the 2nd respondent denying his liability and requesting to release the bill amounts after executing the supplementary agreement. The petitioner states that the failure to complete the work on time can be attributable only to the delay in handing over the site and the non-sanctioning of revised estimates. It is highly arbitrary and unreasonable to require the petitioner to bear the loss arising from the indecisiveness or delay on the part of the Department in sanctioning revised estimate.
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8. The 4th respondent resisted the writ petition filing counter affidavit. The 4th respondent stated that the petitioner having failed to complete the entrusted work within time, is liable for imposition of fine and penalty under the Kerala PWD Manual and contractual provisions. The petitioner requested multiple extensions based on personal reasons. The petitioner had earlier delayed many other works entrusted by the Department.
9. The 4th respondent stated that the petitioner had taken possession of the site on 17.07.2020, which was after seven days of execution of the agreement. The demolition of the existing building was part of the agreed scope of work. The petitioner was obliged to demolish the existing building and dispose of the debris. The petitioner was required to resume the work as per communication dated 19.01.2021 of the 3rd respondent.
10. Initialisation of revised estimate module does not substantiate the immediate necessity of a revised 2025:KER:50167 W.P.(C) No.31965/2024 :8: estimate. The petitioner had only made a little progress till October, 2021. The Contractor had not made any considerable progress, to finalise the revised estimate. The petitioner was granted extension of time, three times. Yet, the petitioner failed to complete the work in time.
11. The petitioner, who is responsible for the delay in execution, is liable to pay liquidated damages as agreed in the contract. The preparation of a Revised Estimate necessitates a minimum progress of work to ascertain the quantities to be revised and the additional items to be included. The extreme slow progress of work led to delays in the preparation of the Revised Estimate. Despite the delay in execution of work, the petitioner was promptly paid with bills, whenever he made a claim. A total of seven running bills were passed till date. Those amounts to a total of ₹1,80,46,663/-.
12. There was no delay in handing over the site. The site was handed over within seven days from execution 2025:KER:50167 W.P.(C) No.31965/2024 :9: of the agreement. Despite the availability of sufficient space at the site, even after the deposit of demolition debris and excavated earth, the petitioner used this as a pretext to delay the work execution, which was already hindered by his own negligence. The hindrances claimed to have existed at the earlier stage of the work were either responsibilities to be accomplished by the petitioner or could have been easily handled by him. These issues were never raised as hindrances, in his earlier applications. Furthermore, even if the arguments regarding hindrances at the site were ultimately unsubstantiated, any alleged delay resulting from such hindrances have been adequately mitigated by the approval of time extensions.
13. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents.
14. The petitioner executed the agreement on 10.07.2020. The work had to be completed within 15 2025:KER:50167 W.P.(C) No.31965/2024 : 10 : months. The petitioner states that there were two existing buildings which had to be demolished to start the work. The 4th respondent in his counter affidavit has stated that demolition of the existing building and disposal of debris were the responsibility of the petitioner.
15. Ext.R4(d) letter dated 15.01.2021 would show that the petitioner had informed the Assistant Engineer regarding the necessity to demolish the two old buildings in the worksite and removal of debris. By the said Ext.R4(d) letter dated 15.01.2021, the Assistant Engineer informed the petitioner that the debris of the removed building has been deposited in the worksite and that action is in progress to remove the debris, though in Ext.R4(d).
16. Though the Assistant Engineer in Ext.R4(d) has alleged that the petitioner is going slow in the work, it is clear from Ext.R4(d) that the respondents themselves had the duty to remove the debris from the worksite. Ext.R4(e) communication dated 18.01.2021 of the Assistant Executive 2025:KER:50167 W.P.(C) No.31965/2024 : 11 : Engineer would also indicate that there was difficulty for the petitioner in executing the work because of the deposit of debris. The contention of the 4 th respondent that it was the duty of the petitioner to demolish the building and dispose of the debris, therefore, cannot be accepted in the light of Exts.R4(d) and R4(e).
17. Ext.P2 is a copy of the details concerning the work downloaded by the petitioner from the portal of the Public Works Department. Ext.P2 would indicate that the revised estimate for the work was created only on 20.10.2021 and it took considerable time for processing and passing of the revised estimate. The revised estimate was finally passed only on 22.07.2024. It is to be noted that the petitioner had completed the work by March, 2023, even before passing of revised estimate.
18. The agreement was executed on 10.07.2020. The work was to be completed by 16.10.2021. The petitioner was handed over the work site only in the 2025:KER:50167 W.P.(C) No.31965/2024 : 12 : month of December, 2021. Ext.P3 fitness certificate would indicate that the petitioner had completed the work much before 14.06.2023, the date of Fitness Certificate. As evidenced by Ext.P2, the revised estimate was passed only on or after 22.07.2024. In the circumstances, penalising the petitioner for delay in completion of the work, imposing penalty or liquidated damages cannot be legally justified.
19. The 2nd respondent is therefore directed to permit the petitioner to execute the supplementary agreement for the work without imposing fine/penalty and release the amount due to the petitioner expeditiously and at any rate within a period of three months.
The writ petition is allowed as above.
Sd/-
N. NAGARESH, JUDGE aks/07.07.2025 2025:KER:50167 W.P.(C) No.31965/2024 : 13 : APPENDIX OF WP(C) 31965/2024 PETITIONER'S EXHIBITS Exhibit-P1 A TRUE COPY OF THE SELECTION NOTICE DATED 24.06.2020 ISSUED BY THE SECOND RESPONDENT.
Exhibit-P2 A TRUE COPY OF THE DETAILS CONCERNING THE WORK DOWNLOADED FROM THE PORTAL OF THE PUBLIC WORKS DEPARTMENT.
Exhibit-P3 A TRUE COPY OF THE FITNESS CERTIFICATE DATED 14.06.2023 ISSUED BY THE FOURTH RESPONDENT FOR THE WORK COMPLETED BY THE PETITIONER.
Exhibit-P4 A TRUE COPY OF THE REPRESENTATION
DATED 13.05.2023 SUBMITTED BY THE
PETITIONER BEFORE THE SECOND
RESPONDENT.
Exhibit-P5 A TRUE COPY OF THE LETTER DATED
26.07.2024 ISSUED FROM THE OFFICE OF
THE SECOND RESPONDENT.
Exhibit-P6 A TRUE COPY OF THE REPRESENTATION
DATED 04.09.2024 SUBMITTED BY THE
PETITIONER TO THE SECOND RESPONDENT. RESPONDENT'S EXHIBITS Exhibit R 4 (a) A true copy of Acknowledgement form for handling over site to the contractor by the Assistant Engineer dated, 17.07.2020 Exhibit R 4 (c) : True copy of letter dated 22.12.2020 by the petitioner to Assistant Engineer Exhibit R 4 (d) : True copy of the reply sent by the 5th respondent to petitioner dated 15.01.2021 Exhibit R 4 (e) : True copy of the reply sent by the Assistant Engineer (R4) to petitioner dated 18.01.2021 Exhibit R4 (f) True copy of the communication dated 19.01.2021 by the Third respondent to the petitioner 2025:KER:50167 W.P.(C) No.31965/2024 : 14 : Exhibit R4 (g) : True copy of communication dated 22.06.2021 by the Executive Engineer to the petitioner Exhibit R 4 (h) : True copy of communication by the 5th respondent to the petitioner dated 29.06.2021 Exhibit R4 (i): True copy of communication by the Assistant Executive Engineer to the petitioner dated 30.06.2021 Exhibit R4 (j): True copy of the letter dated 06.10.2021 by the petitioner to the Superintending Engineer Exhibit R4 (k): True copy of the application for extension submitted by the petitioner dated 04.04.2022 Exhibit R4 (l): True copy of the 3rd application for extension of time dated 21.10.2022 by the petitioner Exhibit R4 (m): True copy of the application submitted by the petitioner dated 23.01.2023 Exhibit R4 (n): True copy of the application to extend the time of completion up to 30th November 2023 by the petitioner dated 18.01.2024 Exhibit R4 (b): True copy of the agreement schedule for demolition on the existing building was part of the agreed-upon scope of work as outlined in items 1.001 to 1.008.