Kerala High Court
Kerala State Rural Roads Development ... vs K.V.Paulose on 11 July, 2025
W.A.No.548 of 2021 1 2025:KER:50640
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
FRIDAY, THE 11
DAY OF JULY 2025 / 20TH ASHADHA,
1947
WA NO. 548 OF 2021
GAINST THE JUDGMENT DATED 26.11.2020 IN WP(C)
A
NO.22315 OF 2020 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 4 IN W.P(C):
1 ERALA STATE RURAL ROADS DEVELOPMENT AGENCY K REPRESENTED BY THE COMMISSIONER, 5TH FLOOR, SWARAJ BHAVAN, NANDANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003. 2 HE CHIEF ENGINEER T LOCAL SELF GOVERNMENT (RD) DEPARTMENT, GOVERNMENT OF KERALA, 5TH FLOOR, SWARAJ BHAVAN, NANDANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003. 3 UPERINTENDING ENGINEER S KERALA STATE RURAL ROADS DEVELOPMENT AGENCY, LOCAL SELF GOVERNMENT (RD) DEPARTMENT, GOVERNMENT OF KERALA, 5TH FLOOR, SWARAJ BHAVAN, NANDANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003. 4 XECUTIVE ENGINEER E PROGRAM IMPLEMENTATION UNIT, GOVERNMENT OF KERALA, DISTRICT PANCHAYATH, KOTTAYAM - 686 001. W.A.No.548 of 2021 2 2025:KER:50640 BY ADV SUNIL KUMAR KURIAKOSE, GP RESPONDENT/PETITIONER IN WP(C): .V.PAULOSE K AGED 67 YEARS KUNNEL HOUSE, KARKAPPILLY P.O., KOLENCHERY, ERNAKULAM - 682 311. BY ADV P.SHANES MATHER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 7.07.2025, 0 THE COURT ON 11.07.2025 DELIVERED THE FOLLOWING: W.A.No.548 of 2021 3 2025:KER:50640 JUDGMENT Sushrut Arvind Dharmadhikari, J. The present intra court appeal filed under Section 5 of the Kerala High Court Act, 1958, assails the judgment dated26.11.2020 passed in W.P(C)No.22315 of 2020, whereby the learned Single Judgehadallowedthewritpetitionfiledbytherespondentherein.The appellants herein are the respondents 1 to 4 in the writ petition and the respondent is the writ petitioner. 2. The respondent had filed the writ petition seeking the following reliefs: " 1)ThatallrecordsleadingtoExtP24becalledtothishon'ble court and a Writ of Certiorari or other order be passed quashing the same. 2) Issue aWritofmandamusorotherWrit,Orderordirection bepassedIssueaWritofmandamusoranyotherappropriate Writ,OrderofDirection,commandingtherespondentstoshow the borrow pit earth to be usedforfillingtheworksiteasper the schedule attached to the agreement. 3) Issue a Writ of mandamus or any other appropriate Writ, OrderofDirection,commandingtherespondentstorevisethe serial No 2 work in the schedule of work by substituting the work"borrowpitswithContractorsownearthandtorevisethe rate accordingly as requested by the petitioner or in the alternative to relieve the petitioner from the work without imposing risk and cost and after settling the amounts due to the petitioner for the work already done and to release the Bankguarantee,performanceguarantee,andsecuritydeposit within a time to be fixed by this hon'ble court. 4) Issue a Writ of mandamus or any other appropriate Writ, Order of Direction commanding the 2nd respondentstopass W.A.No.548 of 2021 4 2025:KER:50640 rders on Ext P23 within a time to be fixed by this hon'ble o court. 5)Suchotherreliefsthatareappropriateandincidentaltothis writ petition" 3.Thebrieffactsofthecasearethataspertheprayerclause herein above, writ of mandamus was sought commanding the appellantstoshowtheborrowpitearthtobeusedforfillingthework siteasperthescheduleattachedtotheagreementandtorevisethe serial No.2 work in the schedule of work by substituting the work borrow pits with contractors own earth and to revise the rate accordingly as requested by the respondent or in the alternative to relieve the respondent from the work withoutimposingriskandcost and after settling the amounts due to the work already done and to release the Bank Guarantee, Performance Guarantee and Security Deposit within a fixed time frame. 4. The work allotted to the respondent was in respect of PMGSY (Phase 5) work of Parippu Thollayirum Manchira road (PackageNo.KR0709)includingconstructionandmaintenancefor5 years. A disputearosewhennoheedwaspaidtotherequestofthe respondent to point out the borrow pit earth, so that the work could be expedited. When the appellants failed or refused to extend the W.A.No.548 of 2021 5 2025:KER:50640 period of contract, being aggrieved, thewritpetitionwasfiledbythe respondent with the aforesaid prayers. 5. The learned Single Judge was pleased to allow the writ petitionbyquashingExt.P24orderpassedbytheExecutiveEngineer with an observation that it is upto the appellants either to allow the respondent to continue theworkonthebasisofthefreshtermsand additional time or else to relieve him without risk and cost. Being aggrieved, the appellants are before this Court. 6. The learned counsel for the appellants submitted that the learnedSingleJudgeerredinpassingsuchanorderinasmuchasthe same could not have been directed since the respondent is an experienced'A'classcontractorwithwellequippedtechnicalteamof Engineers, it was his duty to inspect the site and study the site conditions prior to submission of the tender. It was his prime responsibility to ensure the availability of earth mentioned as per Clause 7.1 of the instructions to the bidder of the Standard Bidding Document. It is also submitted that the respondent had executed supplementary agreement wherein he had duly agreedthatheshall not claim any rate enhancement on items or materials. Thelearned Single Judge failed to consider these aspects. W.A.No.548 of 2021 6 2025:KER:50640 7.Duringthependencyofthewritappeal,thisCourtvideorder dated01.04.2022grantedlibertytotheappellantstoproceedfurther. It is informed at theBarthatduringthependencyofthewritappeal, the contract stood terminated. The respondent herein is under process of challenging the termination of contract in a separate proceedings in accordance with law. 8.The learned counsel for the appellants submitted that, althoughtimewasextendedtocompletethecontract,therespondent failedtodoso.Therefore,afterterminationofthecontract,nofurther extension of time could be granted to the respondent. 9. Learned counsel for the respondent submitted that writ appeal may be disposed ofwithlibertytotherespondenttoraiseall the contentions raised in the writ petition in the proceedings where termination order would be challenged. 10. Heard the learned counsel for the appellants and the learned counsel appearing for the respondent. 11.Wefindmeritinthesubmissionsofthelearnedcounselfor the appellants, primarily on the ground that, during the pendencyof the writ appeal, the contract stood terminated. The learned Single Judgecouldnothaveadjudicateddisputedquestionsoffactinawrit W.A.No.548 of 2021 7 2025:KER:50640 petitionfiledunderArticle226oftheConstitutionofIndia.Therefore, in the fitness of things, it would be appropriate to set aside the judgmentpassedbythelearnedSingleJudge,grantinglibertytothe respondent to raise all the contentions urged in the writ petition, in appropriate proceedings. 12. In view of the aforesaid, the judgment dated 26.11.2020 passedbythelearnedSingleJudgeinW.P.(C)No.22315of2020is hereby set aside. The respondentisatlibertytochallengetheorder of termination of the contract, raising all the questions that were raised in the writ petition. All such questions are left open to be decided in appropriate proceedings, if any. Withtheaforeobservation,thiswritappealisallowed.Noorder as to costs. Sd/- SUSHRUT ARVIND DHARMADHIKARI JUDGE Sd/- SYAM KUMAR V.M. JUDGE MC/09.07