Kerala High Court
Jacob Jose vs State Of Kerala on 4 August, 2021
WP(C) No.33239/2017 1/9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 4th day of August 2021 / 13th Sravana, 1943
IA.1/2021 IN WP(C) NO. 33239 OF 2017(S)
APPLICANT/RESPONDENT NO.1 IN WPC:
STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 4 IN WPC:
1. JACOB JOSE, S/O.JOSEPH, RESIDING AT MUTHIRENTHICKAL HOUSE,
PARAPPADY, MARUKUNNU. P.O, KOZHIKODE, PIN CODE-673012.
2. KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI BHAVANAM, PATTOM,
THIRUVANANTHAPURAM-695 004, REPRESENTED BY ITS MANAGING DIRECTOR.
3. THE DIRECTOR (GENERATION CIVIL HRM), KERALA STATE ELECTRICITY BOARD
LIMITED, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.
4. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION, KESTON ROAD,
OPPOSITE RAJ BHAVAN, NEAR CHRIST NAGAR, KANAKA NAGAR, KOWDIAR,
THIRUVANANTHAPURAM-695033.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to grant at least six
months' time from the date of filing the petition for enlargement of time
for completing the pending Hydro Electric Projects so as to enable the
respondent to comply the direction in the judgment dated 04/08/2020 in
WP(C)No.33239/2017.
This application coming on for orders upon perusing the petition and
the affidavit filed in support thereof, and this Court's judgment dated
04/08/2020 and upon hearing the arguments of STATE ATTORNEY & GOVERNMENT
PLEADER for the petitioner in IA/R1 in WPC, SMT.ANITHA MATHAI MUTHIRENTHY,
Advocates for R1 in IA/petitioner in WPC, SRI.SUDHEER GANESH KUMAR R.,
STANDING COUNSEL for R2 & R3 in IA/WPC and of SRI.P.U.SHAILAJAN, STANDING
COUNSEL for R4 in IA/WPC the court passed the following:
P.T.O.
WP(C) No.33239/2017 2/9
S.Manikumar, C.J.
&
Shaji P.Chaly, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
I.A.No.1 of 2021 in W.P.(C)No.33239 of 2017
& Cont. Case (C)No.1015 of 2021
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 4th day of August, 2021
ORDER
Shaji P. Chaly, J.
The writ petition was disposed of by this court as per judgment
dated 4.8.2020 basically directing the Kerala State Electricity Board Limited
to complete the hydro electric projects which were undertaken by the Board
and dealt with in the judgment to ensure that the work shall be completed
in accordance with the time period prescribed in the report submitted by
the Board and extracted in the judgment. It was clear from the report that
the Board had submitted before this court the report stating that different
stretches of time are required for the completion of the project except a
hydro electric project namely Wanchiyam Small Hydro Electric Project,
which was yet to start.
2. Now the I.A. is filed by the State Government seeking extension of
time and submitting that substantive progress were made in the matter of
completing the projects, however, it could not be completed as envisaged in
WP(C) No.33239/2017 3/9
I.A.1 of 2021 in W.P.(C)33239 of 2017
& Cont. Case (C)No.1015 of 2021
the report produced before the court and extracted in the judgment.
Paragraphs 3 to 12 of the affidavit explaining the progress achieved and
the circumstances that persuaded the Government to seek extension, are
narrated and they are extracted hereunder:
"2. It is submitted that the petitioner filed W.P.(C) No. 33239/2017
seeking direction to the respondents to commission the delayed
Hydro Electric Projects and also to file status reports with the
chronological date and events of all the pending Hydro Electric
Projects in the State of Kerala. While considering the Writ Petition, the
Hon'ble Court was pleased to direct the respondents to file a status
report of each Hydro Electric Projects mentioned by the petitioner.
Accordingly, a detailed report was filed. On the basis of the said
report, the Hon'ble Court has directed the respondents to ensure that
the work to be completed (except the Wanchiyam Project) within the
time period prescribed in the report filed by the Project Monitoring
Committee of Hydro Electric Projects in Kerala Electricity Board.
3. Thereafter the petitioner filed a Contempt Case No. 1015/2021
aggrieved by the non-implementation of the judgment within the time
as directed by the Hon'ble Court. The case of the petitioner is that the
Projects mentioned below are not completed as per the date
committed before the Hon'ble High Court.
WP(C) No.33239/2017 4/9
I.A.1 of 2021 in W.P.(C)33239 of 2017
& Cont. Case (C)No.1015 of 2021
Name of the Capacity Original Date Present Status
Project Year of committed in
completion High Court
Upper Kallar 2 MW 2018 30/11/20 Not completed
Thottiyar 40 MW 2012 31/03/21 Not completed
Poringalkuthu 24 MW 2017 31/03/21 Not completed
Bhoothathankettu 24 MW 2017 15/05/21 Not completed
4. It is submitted that the Government and KSEBL had taken all
earnest efforts/ actions for the successful commissioning of the
Projects, namely (1) Upper Kallar SHEP, (2) Thottiyar HEP, (3)
Poringalkuthu SHEP and (4) Bhoothathankettu SHEP to comply with
the directions of the Court. It is also submitted that KSEBL faced
many practical difficulties due to Covid-19 pandemic and the
subsequent lockdowns declared by the Government which delayed
mobilization and commitment of the above Projects & work force by
the executing agencies.
5. The devastating flood in August 2018 and July 2019, Covid-19
pandemic severely affected the progress of work projects. The global
and national lockdowns declared in various spells in total and partial
with strict restrictions on movement by way of suspension of air/
rails/ road traffic affecting the logistics in general, non availability of
labour force and material resources during the period had significant
impact on the economy itself. The project delay during this time
would definitely have an indirect bearing on the situations as above
which is equivalent to a force majeure.
WP(C) No.33239/2017 5/9
I.A.1 of 2021 in W.P.(C)33239 of 2017
& Cont. Case (C)No.1015 of 2021
6. Apart from the Covid-19 pandemic, the execution of the work of
Upper Kallar SHEP is delayed mainly due to the very slushy nature of
soil, severe piping phenomena, unexpected heavy rains and its
disastrous effects, unfavorable working conditions to the men &
machinery due to weak soil nature etc. At present about 89.2 % of
the work is completed and the project is scheduled to be completed
by 31.07.2021.
7. Regarding Thottiyar HEP, difficulty in arranging labours and
materials due to the declaration of lockdown associated with Covid-19
pandemic, the difficult terrain of the penstock track, peculiar climatic
conditions like heavy rain, lightning etc. has affected the progress of
work and consequent delay in commissioning of the project. The
project is scheduled to complete by 31.03.2022.
8. Regarding Poringalkuthu SHEP it is true that owing to nationwide
lockdown due to COVID-19 pandemic etc, KSEBL has extended the
period of completion up to 31.03.2021. The Overall Physical Progress
now achieved is 95.21%. At the time of delivery of Judgment by this
Honourable Court during August 2020, the physical progress achieved
was only 90.63%. As such there exists only about 5% works for
commissioning of the Poringalkuthu Small Hydro Electric Project. As
submitted before this Honourable Court during the course of hearing,
the lead partner of the consortium entrusted with the task of
execution of Civil Works through M/s. GVR was referred to the
WP(C) No.33239/2017 6/9
I.A.1 of 2021 in W.P.(C)33239 of 2017
& Cont. Case (C)No.1015 of 2021
National Company Law Tribunal due to severe financial constraints.
Now another joint venture partner M/S. GMW has agreed for
completing the project within 180 days. It is submitted that
termination of the existing contract and inviting fresh bids to complete
about 5% balance work would be a time consuming exercise. Hence
the request of M/s.GMW to execute and commission the project
within 180 days of receipt of the approval of KSEBL is under active
consideration. In view of the above facts and circumstances as these
events are unforeseeable and outside the control of KSEBL, the
Poringalkuthu Small Hydro Electric Project is expected to be
completed by 31.01.2022.
9. Regarding Bhoothathankettu SHEP at present about 93.73% of the
work is completed and only 6.27% work is remaining. The time
extension has been granted for Electro Mechanical works upto
31.08.2021. Even though the major portion of the Civil works have
been completed, the work is now going on a slower pace due to the
non availability of major E&M parts. The 3rd consignment of E&M
equipments from China is pending due to the Covid-19 pandemic. The
lead partner of the contracting firms for the Civil works and E&M
works i.e., M/s. SSEB Pvt. Ltd. has filed Writ Petitions before the
Honourable High Court against KSEBL seeking some additional claims
in the case of Civil works and financial support for the 3rd
consignment of E&M equipments and those cases are pending.
WP(C) No.33239/2017 7/9
I.A.1 of 2021 in W.P.(C)33239 of 2017
& Cont. Case (C)No.1015 of 2021
10. Apart from the above mentioned four Projects, the Pallivasal
Extension Scheme (60 MW) is also nearing completion. The contract
for the execution of the Scheme was originally awarded to M/s.
ESSAR-DEC-CPPL consortium for Rs. 268.01 Crores. But the contract
was terminated on 13.09.2018 due to the poor progress achieved at
site based on Government Order dated 10.07.2018. Now, the balance
work of the Project is progressing under four separate contracts, le.,
civil works under 3 separate contracts and Electro Mechanical works
are progressing under separate contract. The overall physical progress
of the Project is 85.58% and the progress of implementation is being
monitored at various levels to avoid any further delay. However, due
to the aforesaid reasons which are beyond the control of KSEBL a
precise schedule for the balance works committing a specific date of
commissioning for two Projects namely, (1) Pallivasal Extension
Scheme (60MW) and (2) Poringalkuthu SHEP is not possible now,
even though only a small quantum of work is remaining to be done.
The Project is expected to be completed by 11.10.2021.
11. Considering the situation, KSEBL has rescheduled the
commissioning of the Projects namely, Upper Kallar SHEP on
31.07.2021, Thottiyar HEP on 31.03.2022, Poringalkuthu SHEP on
31.01.2022, Bhoothathankettu on 31.08.2021 and Pallivasal on
11.10.2021. In the above circumstances, it is respectfully submitted
that the Honourable Court may please be accepted the revised date
of completion of the above mentioned Projects.
WP(C) No.33239/2017 8/9
I.A.1 of 2021 in W.P.(C)33239 of 2017
& Cont. Case (C)No.1015 of 2021
12. It is respectfully submitted that, the non-compliance of the
direction in the order is due to the aforesaid administrative reasons. It
is submitted that there is no deliberate or wanton delay on the part of
this respondent. Hence, it is most respectfully submitted that this
Hon'ble Court may be pleased to grant at least six months' time from
the date of filing this petition for enlargement of time for completing
the pending Hydro ElectricProjects so as to enable this respondent to
comply the direction in the judgment dated 04.08.2020 in W.P.(C) No.
33239/2017."
Therefore, six months' time is sought for completion of the projects.
3. The petition was opposed by the learned counsel for the writ
petitioner contending that six months' time sought for by the Government
is not reconciling with the time period prescribed in the report submitted
before this court and therefore, the attempt of the Government is only to
protract the completion of the projects.
4. We have heard learned Government Pleader Sri.K.R.Ranjith in the
I.A. and Smt.Anitha Mathai Muthirenthy, learned counsel appearing for the
writ petitioner.
5. After evaluating the circumstances pointed out by the State
Government in the affidavit and taking into account the progress achieved,
WP(C) No.33239/2017 9/9
I.A.1 of 2021 in W.P.(C)33239 of 2017
& Cont. Case (C)No.1015 of 2021
after the disposal of the writ petition, we are of the view that reasonable
time has to be granted to the State Government to complete the projects,
especially taking into account the emergent situation prevailing in the
community pertaining to the Covid-19 pandemic.
6. Having bestowed our attention to the statements contained in
the affidavit, we are inclined to extend the time period upto 31.12.2021
and accordingly, we do so.
The State is directed to file a report on or before 10 th day of January,
2022 before this court, after duly complying with the directions contained
in the judgment and the extension granted by this court in the present I.A.
Post the contempt case during the 2 nd week of January, 2022 along
with the report submitted by the State as directed above.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv
04-08-2021 /True Copy/ Assistant Registrar
