P.M.Assainar vs State Of Kerala
2021 Latest Caselaw 16850 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
   THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                       WP(C) NO. 3408 OF 2011
PETITIONER:

            P.M.ASSAINAR
            AGED 51 YEARS, S/O.LATE KUTTY MOHAMMED,PROPRIETOR,
            M/S.V-PRO ENGINEERS, XI-446, MANATH COMPLEX, NGO
            QUARTERS, THRIKKAKARA P.O., KAKKANAD, KOCHI-682021.

            BY ADVS.
                SRI.C.A.CHACKO
                SRI.N.A.SHAFEEK
                SRI.M.S.UNNIKRISHNAN OASIS


RESPONDENTS:

       1       STATE OF KERALA
               REPRESENTED BY SECRETARY TO GOVERNMENT,
               IRRIGATION AND WATER RESOURCES DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM.

        2      THE KERALA WATER AUTHORITY
               REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN,
               THIRUVANANTHAPURAM-695033.

       3       THE MANAGING DIRECTOR, THE KERALA WATER AUTHORITY,
               JALA BHAVAN, THIRUVANANTHAPURAM-695033.

       4       THE CHIEF ENGINEER,
               KERALA WATER AUTHORITY, CENTRAL REGION, HOSPITAL ROAD,
               KOCHI-682011.

        5      THE SUPERINTENDING ENGINEER
               KERALA WATER AUTHORITY, P.H.CIRCLE, MUVATTUPUZHA.

        6      THE EXECUTIVE ENGINEER,KERALA WATER AUTHORITY, PROJECT
               DIVISION, KATTAPPANA, VELLAYANIKUZHI P.O., IDUKKI.
 W.P.(C) 3408/2011                    2



          7     THE ASSISTANT EXECUTIVE ENGINEER
                KERALA WATER AUTHORITY, PROJECT DIVISION, KATTAPPANA,
                IDUKKI DISTRICT.

                SR.GOVERNMENT PLEADER SRI.JUSTIN
                SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY
                SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
                SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY


      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                            JUDGMENT

The petitioner, a contractor, was awarded the work

'CARWSS to Elappra and adjoining Villages - Supply, Erection,

Testing and Commissioning of Two Nos.315 KVA, 11

KV/1415/V Transformers and connected works at Raw Water

Pump House, Heliburia' by the Kerala Water Authority (KWA).

The period of completion of work was nine months from

9.3.2010. On being awarded the work, the petitioner was

asked to execute an agreement for the work. Since the

petitioner came to know that no land was acquired by the

respondents for execution of the work, the petitioner vide

Ext.P2 requested the fifth respondent, the Superintending

Engineer, KWA to relieve him from the work and to refund the

earnest money deposit of Rs.50,000/-. Later, at the request of

the fifth respondent, the petitioner remitted Rs.1,00,000/-

towards security deposit and executed agreement on

22.11.2010. According to the petitioner, since the land was

not available at the original site for execution of the work,

and utilities including electric lines were not removed from

the space made available, he could not put the available land

to use for execution of the work. The petitioner again

approached the fifth respondent requesting to relieve him

from the work and to release the security deposit. However,

the fifth respondent directed the petitioner to proceed with

the work. The petitioner was told that if the work is not

started on or before 10.01.2011, the same will be terminated

and the security deposit will be forfeited. Later, by Ext.P16,

the fifth respondent terminated the work and ordered to

forfeit the security deposit and to re-arrange the work at the

risk and cost of the petitioner. It was also ordered to take

action to blacklist the petitioner. Ext.P16 is impugned in the

writ petition. The petitioner has also prayed for refund of

security deposit with interest.

2. The first respondent State and respondents 2 to

7 have filed separate counter affidavits in the writ petition.

They have denied the contention of the petitioner that the

work could not be executed due to non-availability of land.

The respondents have stated that the possession of land was

not required for procuring the materials and even after

obtaining the land, the petitioner did not take any steps to

execute the work. Though sufficient space was available to

the petitioner to construct the 6 pole structure, he did not

take any steps to carry out the work. Allegation of

insufficiency of space is only a ruse to avoid execution of the

work. Since the petitioner did not carry out the work, the

KWA was constrained to issue Ext.P16 order terminating the

work and forfeiting the security deposit.

3. A reply affidavit is filed by the petitioner to the

counter affidavit filed by the first respondent rebutting the

averments therein and stating that he was ready to execute

the work, but it was only due to the lethargic attitude of the

respondents that the work could not be executed.

4. Heard the learned counsel for the petitioner, the

learned standing counsel for the Kerala Water Authority and

the learned Government Pleader.

5. According to the petitioner, the work awarded by the

KWA could not be carried out since there was no sufficient

space to construct a 6 pole structure and its fencing. In the

land available, there were obstructions and the KWA did not

take any steps to remove the utilities. Therefore, due to the

non co-operation on the part of the officials of the KWA, the

petitioner could not carry out the work. The non-availability

of land and the lethargic attitude of the respondents

contributed to the delay in carrying out the work. The

petitioner, therefore, submits that, Ext.P16 order terminating

the contract and forfeiting the security deposit and the steps

to blacklist the firm, is illegal and arbitrary.

6. Per contra, the respondents would submit that

adequate opportunities have been given to the petitioner to

start the work and the allegation of inadequacy of land or the

obstructions at the site stated by the petitioner is baseless

and the petitioner did not take any earnest effort to start the

work and therefore the contract was terminated. The

standing counsel for the KWA submits that the work was re-

arranged and the security deposit as well the EMD was

forfeited towards the risk and cost.

7. The fact remains that the work awarded to the

petitioner was not completed within the stipulated period.

The work was re-arranged on termination. The security

deposit as well the earnest money deposited by the petitioner

was forfeited towards the risk and cost. The petitioner as well

as the respondents accuse each other for the delay in

commencement of the work. When the petitioner contends

that the site was not available for execution of the work, the

respondents would contend that inadequacy of land or

obstructions at the site are only a ruse put by the petitioner

to avoid execution of the work and the petitioner did not even

take steps for procuring materials and therefore, the

respondents cannot be attributed with lethargy and it is the

attitude of the petitioner in not commencing the work and to

avoid execution of work that led to the termination of the

work and the forfeiture of deposit.

Going through the rival contentions, this Court, in

exercise of jurisdiction under Article 226 of the Constitution,

cannot decide on the allegations and counter allegations of

latches and breaches arising from and relating to the

contract. The question as to who has contributed for the

factors leading to the termination of work has to be

adjudicated in a proper forum after taking evidence. Since

disputed questions of facts with regard to the breach arise for

determination, this Court is not inclined to entertain the

challenge against Ext.P16 order. Therefore, without prejudice

to the right of the petitioner to approach civil court, this writ

petition is dismissed. There will be no order as to costs.

Sd/-

MURALI PURUSHOTHAMAN JUDGE

APPENDIX

PETITIONER'S EXHIBITS:

P1:TRUE COPY OF THE LETTER DATED 9.3.2010 ISSUED BY THE 5TH

RESPONDENT.

P2:TRUE COPY OF THE LETTER DATED 7.4.2010 SENT BY THE

PETITIONER TO THE 5TH RESPONDENT.

P3:TRUE COPY OF THE LETTER DATED 14.10.2010 OF THE 5TH

RESPONDENT TO THE PETITIONER.

P4:TRUE COPY OF THE LETTER DATED 23.10.2010 SENT BY THE

PETITIONER TO THE 5TH RESPONDENT.

P5:TRUE COPY OF THE LETTER DATED 4.11.2010 SENT BY THE

PETITIONER TO THE 5TH RESPONDENT.

P6:TRUE COPY OF THE LETTER DATED 11.11.2010 FROM THE 5TH

RESPONDENT TO THE PETITIONER.

P7:TRUE COPY OF THE LETTER DATED 2.12.2010 OF THE 6TH

RESPONDENT TO THE PETITIONER.

P8:TRUE COPY OF THE ACKNOWLEDGMENT FORM SENT BY THE 7TH

RESPONDENT.

P9:TRUE COPY OF THE LETTER DATED 10.12.2010 SENT BY THE

PETITIONER TO THE 5TH RESPONDENT.

P9:TRUE COPY OF THE LETTER DATED 10.12.2010 SENT BY THE

PETITIONER TO THE 5TH RESPONDENT.

P10:TRUE COPY OF THE LETTER DATED 15.12.2010 OF THE 5TH

RESPONDENT TO THE PETITIONER.

P11:TRUE COPY OF THE REPRESENTATION DATED 22.12.2010 SUBMITTED

BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

P12:TRUE COPY OF THE LETTER DATED 31.12.2010 OF THE 5TH

RESPONDENT.

P13:TRUE COPY OF THE LETTER DATED 31.12.2010 OF THE 6TH

RESPONDENT.

P14:TRUE COPY OF THE LETTER DATED 4.1.2011 WITH SKETCH SENT BY

THE PETITIONER TO THE 5TH RESPONDENT.

P15:TRUE COPY OF THE LETTER DATED 5.1.2011 OF THE 5TH

RESPONDENT.

P16:TRUE COPY OF THE ORDER DATED 11.1.2011 OF THE 5TH

RESPONDENT.

P17:TRUE COPY OF THE JUDGMENT DATED 16.7.2008 IN W.P.(C)

NO.17115/2008 OF THIS HON'BLE COURT.

RESPONDENTS' EXHIBITS:

R2(A):TRUE COPY OF LETTER DATED 13.10.2010 ISSUED BY

HAILEYBURIA ESTATE.

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