Vijay Constructions vs State Of Kerala
2021 Latest Caselaw 3460 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                      WP(C).No.16137 OF 2020(N)


PETITIONER:

               VIJAY CONSTRUCTIONS,
               REPRESENTED BY ITS MANAGING PARTNER, P.M.ITTOOP,
               MYKULANGARA (H), KINGINIMATTOM.P.O., KOLENCHERY-
               682311.

               BY ADVS.
               SMT.O.A.NURIYA
               SRI.HARIS BEERAN

RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY SECRETARY, PUBLIC WORK DEPARTMENT,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2        SUPERINTENDING ENGINEER,
               PUBLIC WORK DEPARTMENT (ROAD DIVISION),
               CENTRAL CIRCLE OFFICE, PERIYAR NAGAR, ALUVA-683101.

      3        ASSISTANT EXECUTIVE ENGINEER,
               PUBLIC WORK DEPARTMENT (ROAD DIVISION),
               PERUMBAVOOR, PIN-683542.

      4        ASSISTANT ENGINEER,
               PUBLIC WORK DEPARTMENT (ROAD DIVISION),
               PERUMBAVOOR, PIN-683542.

      5        STATION HOUSE OFFICER,
               THADIYITTAPARAMBA POLICE STATION,
               VAZHAKULAM, PIN-683105.

      6        KIZHAKKAMBALAM PANCHAYATH,
               REPRESENTED BY ITS SECRETARY,
               KIZHAKKAMBALAM, PIN-683562.

      7        VAZHAKULAM GRAMA PANCHAYATH,
               REPRESENTED BY ITS SECRETARY, VAZHAKULAM.


               R6 BY SRI.THOMAS GEORGE, SC, KIZHAKKAMBALAM GRAMA
               PANCHAYAT
 WP(C).No.16137 OF 2020       2



             SRI M.B SANDEEP, SC

             SRI BIJI A MANIKOTH, ADV COMMISSIONER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.16137 OF 2020              3




                               JUDGMENT

The petitioner is a firm engaged in engineering and contracting

works. Ext.P2 agreement was entered into between the petitioner and the

PWD Road's Department, as per which, the petitioner was awarded with the

execution of work of improvement with BM-BC to the Chemberkey -

Pookkattupady road from Chainage 0/000 to 4/000. The petitioner

commenced work in terms of the agreement. However, they met with

obstruction from a section of people. According to the petitioner, no

assistance was granted by the PWD to enable him to carry out the work in

terms of the agreement. Mischief was caused by some anti social elements

and bitumen was dumped in the site. Though the petitioner approached the

police and lodged complaints, no action was taken. Later, by Ext.P24 order,

the work was rearranged at the risk and cost of the petitioner. It was in the

said circumstances that the petitioner had approached this Court seeking to

quash Ext.P24 and also for a direction to the 5th respondent to afford

adequate protection to the officers of the PWD and the person and property

of the petitioner and their employees. The petitioner has also sought for a

direction commanding the respondents 1 to 4 to forward instructions to the

5th respondent to initiate appropriate legal action against the persons

against whom allegations have been made in the complaints lodged by the

petitioner.

2. When this petition had come up for admission on

10.8.2020, this Court, as an interim measure, had stayed Ext.P21 and

P24 consequent orders.

3. On 19.8.2020, a detailed order was passed by this Court.

Paragraph No.8 of the order is extracted below for easy reference.

"8. What is the paramount consideration as far as the State is concerned is the completion of the work according to the agreement. The petitioner submits that the widening work of the road through the Vazhakkulam Grama Panchayath was completed with the width of 7 meters. The sixth respondent-Kizhakkambalam Panchayath's case is that Vazhakkulam Grama Panchayath is ruled by the party whose members are protesting against the work being undertaken in the Kizhakkambalam Panchayath. Be that as it may, it is appropriate for this Court to ascertain the true facts as to the actual width of the road in the Vazhakkulam Gramapanchayath at appropriate stage. As of now, except contending the width is being increased without permission, absolutely there is nothing on record to show that it has adversely affected the road alignment. In such circumstances, the petitioner can be permitted to complete the work with 7 meters width through the Kizhakkambalam Pachayath without claiming any additional financial benefits from the State Government. The petitioner shall complete the work by executing a supplemental agreement. The supplemental agreement shall be executed within three days from the date of receipt of a copy of his order. The work can be commenced forthwith. The Police shall give necessary protection to the petitioner as against the obstruction, if any. The petitioner shall complete the entire work within three months."

4. In terms of the directions, an agreement was executed.

Later, by order dated 26.8.2020, this Court had appointed Adv.Biji A.

Manikoth as Advocate Commissioner to report before this Court the

obstructions, if any, caused by the respondents.

5. The Advocate Commissioner has filed a report before this

Court.

6. It is borne out from the report that the entire work has

been completed.

7. Sri.Haris Beeran, the learned counsel appearing for the

petitioner, submits that the petitioner has been able to complete the

entire construction works and the only grievance which remains is the

inaction on the part of the police to initiate appropriate action against

the miscreants named in Ext.P13, and P15 complaints.

8. The learned Government Pleader submits that if the

complaint is pending, appropriate action shall be taken in accordance

with law.

9. I have also heard the learned Standing Counsel appearing

for the Panchayath as well, who submits that the work has been

completed.

10. Having considered the submissions, it appears that the

petitioner had approached this Court challenging Ext.P24 order passed

by the Superintending Engineer rearranging the work on the risk and

cost of the petitioner. However, pursuant to interim orders passed by

this Court, a supplemental agreement was executed and the petitioner

has been able to complete the work. In that view of the matter,

nothing further survives. If any complaint lodged by the petitioner

before the 5th respondent is pending, appropriate action shall be taken

in accordance with law.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE sru

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE GRANTED TO MANAGING PARTNER OF PETITIONER FIRM.

EXHIBIT P2 TRUE COPY OF AGREEMENT NO.164/SECCA/18-19 DATED 7.3.2019.

EXHIBIT P3 TRUE COPY OF RESOLUTION OF KIZHAKKAMBALAM PANCHAYATH DATED 29.6.2019.

EXHIBIT P3A TRUE COPY OF RESOLUTION OF VAZHAKKULAM PANCHAYATH DATED 14.10.2019.

EXHIBIT P4 TRUE COPY OF LETTER OF KIZHAKKAMBALAM PANCHAYATH DATED NIL.

EXHIBIT P4A TRUE COPY OF LETTER OF VAZHAKKULAM PANCHAYATH DATED NIL.

EXHIBIT P4B TRUE COPY OF LETTER OF M.L.A. OF KUNNATHUNADU CONSTITUENCY DATED 6.11.2019.

EXHIBIT P5 TRUE COPY OF LETTER OF 3RD RESPONDENT DATED 3.10.2019.

EXHIBIT P5A TRUE COPY OF LETTER OF 4TH RESPONDENT DATED 17.10.2019.

EXHIBIT P6 TRUE COPY OF PHOTOGRAPHS OF THE WORK COMPLETED BY THE PETITIONER DATED NIL.

EXHIBIT P7 TRUE COPY OF PHOTOGRAPHS OF MEN OBSTRUCTING WORK AT CONSTRUCTION SITE DATED NIL.

EXHIBIT P8 TRUE COPY OF LETTER OF 4TH RESPONDENT TO PETITIONER DATED 11.5.2020.

EXHIBIT P9 TRUE COPY OF COMPLAINT BY PETITIONER TO 4TH RESPONDENT DATED 15.5.2020.

EXHIBIT P10 TRUE COPY OF REPLY OF 4TH RESPONDENT TO PETITIONER DATED 15.5.2020.

EXHIBIT P11 TRUE COPY OF LETTER OF 3RD RESPONDENT TO PETITIONER DATED 15.5.2020.

EXHIBIT P11A TRUE COPY OF LETTER OF 2ND RESPONDENT TO PETITIONER DATED 18.5.2020.

EXHIBIT P12 TRUE COPY OF LETTER OF 5TH RESPONDENT SENT TO PETITIONER DATED 18.5.2020.

EXHIBIT P13 TRUE COPY OF COMPLAINT TO POLICE DATED 19.5.2020.

EXHIBIT P13A TRUE COPY OF ACKNOWLEDGMENT RECEIPT FROM 5TH RESPONDENT DATED 19.5.2020.

EXHIBIT P14 TRUE COPY OF COMPLAINT SUBMITTED TO 4TH RESPONDENT BY PETITIONER DATED 2.5.2020.

EXHIBIT P15 TRUE COPY OF THE COMPLAINT TO 5TH RESPONDENT FILED BY PETITIONER DATED 21.5.2020.

EXHIBIT P16 TRUE COPY OF COMPLAINT TO 2ND RESPONDENT SUBMITTED BY PETITIONER DATED 26.5.2020.

EXHIBIT P17 TRUE COPY OF LETTER DATED 1.6.2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P18 TRUE COPY OF LETTER FROM 2ND RESPONDENT TO PETITIONER DATED 1.6.2020.

EXHIBIT P19 TRUE COPY OF COMPLAINT SUBMITTED TO 4TH RESPONDENT BY PETITIONER DATED 1.6.2020.

EXHIBIT P20 TRUE COPY OF LETTER OF PETITIONER TO 4TH RESPONDENT DATED 13.6.2020.

EXHIBIT P21 TRUE COPY OF PROCEEDINGS AND DECISION IN THE MEETING OF THE 2ND RESPONDENT DATED 3.7.2020.

EXHIBIT P22 TRUE COPY OF RELEVANT PAGES OF THE PWD MANUAL DATED NIL.

EXHIBIT P23 TRUE COPY OF LETTER OF PETITIONER TO 4TH RESPONDENT DATED 15.7.2020.

EXHIBIT P24 TRUE COPY OF ORDER OF THE 2ND RESPONDENT DATED 17.7.2020.

EXHIBIT P25 TRUE COPY OF THE LETTER SUBMITTED BY PETITIONER TO 2ND RESPONDENT AT 10.30 A.M.

ON 21/08/2020.

EXHIBIT P26 TRUE COPY OF LETTER SUBMITTED BY PETITIONER TO 2ND RESPONDENT AT 2.50 P.M. DATED 21/08/2020.

EXHIBIT P27 TRUE COPY OF LETTER SUBMITTED BY PETITIONER TO 2ND RESPONDENT AT 4.30 P.M. DATED 21/08/2020.

EXHIBIT P28 TRUE COPY OF THE COPY OF COMPLAINT SUBMITTED BY PETITIONER TO 2ND RESPONDENT ON 24/8/2020

EXHIBIT P29 TRUE COPY OF AGREEMENT DATED 24/8/2020

EXHIBIT P30 TRUE COPY OF ORDER NO.PMP-3851/2018 PETITIONER DATED 24/8/2020

RESPONDENTS EXHIBITS:

EXHIBIT R2(A) TRUE COPY OF RELEVANT PAGES OF THE PWD MANUAL.

EXHIBIT R2(B) TRUE COPY OF LETTER DATED 11.05.2019 SEND TO THE PETITIONER BY THIS RESPONDENT.

EXHIBIT R2(C) TRUE COPY OF REMINDER DATED 30.09.2019 SEND TO THE PETITIONER BY THIS RESPONDENT.

EXHIBIT R2(D) TRUE COPY OF DETAILED REPORT DATED 20.05.2020 OF ALL THE INCIDENTS OCCURRED ON 11.05.2020 SUBMITTED BY THE 3RD RESPONDENT.

EXHIBIT R2(E) TRUE COPY OF PHOTOGRAPHS.

EXHIBIT R2(F) TRUE COPY OF COMPLAINT DATED 13.05.2020 SUBMITTED BY SMT.ASWATHY K.P. AND SRI.BAIJU MATHEW.

EXHIBIT R2(G) TRUE COPY OF LETTER DATED 20.02.2020.

EXHIBIT R2(H) TRUE COPY OF THE REPORT DATED 20.05.2020 SUBMITTED BY THIS RESPONDENT.

EXHIBIT R2(I) TRUE COPY OF THE RELEVANT PAGES OF THE PWD MANUAL.

EXHIBIT R2(J) TRUE COPY OF REPORT DATED 20.06.2020 SUBMITTED BY 4TH RESPONDENT.

EXHIBIT R2(K) TRUE COPY OF THE COVER, REGISTRATION SLIP, ACKNOWLEDGMENT CARD AND TRACK RECORD OF CONSIGNMENT NUMBER.

EXHIBIT R2(L) TRUE COPY OF THE LETTER DATED 1.06.2020 ALONG WITH RELEVANT PAGE OF DESPATCH CUM STAMP ACCOUNT REGISTER.

EXHIBIT R2(M) TRUE COPY OF THE APPLICATION DATED 18.05.2020 1.06.2020 ALONG WITH PICTURE OF THE PAGE SHOWING E-MAIL FORWARDING.

EXHIBIT R2(N) TRUE COPY OF THE RELEVANT PAGES OF STANDARD BID DOCUMENT FOR E-TENDERING.

ANNEXURE R6(a) COPY OF THE RESOLUTION OF PANCHAYAT COMMITTEE DATED 23.1.2017.

ANNEXURE R6(b) COPY OF RESOLUTION OF PANCHAYAT COMMITTEE DATED 12.12.2017.

ANNEXURE R6(c) TRUE COPY OF RESOLUTION OF PANCHAYAT COMMITTEE DATED 29.6.2019.

ANNEXURE R6(d) TRUE COPY OF THE RESOLUTION OF PANCHAYAT COMMITTEE DATED 28.11.2019.

ANNEXURE R6(e) TRUE COPY OF THE DECISION OF PANCHAYAT DATED 1.2.2020.