T.P.Antony vs Kerala Land Development ...
2021 Latest Caselaw 4630 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

     TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                      WP(C).No.19765 OF 2020(U)




PETITIONER:

               T.P.ANTONY,
               AGED 60 YEARS,
               S/O.POULOSE, ALANKAR CONSTRUCTION COMPANY,
               THOTTATHIL HOUSE, NADAKKAVU P.O.,
               UDAYAMPEROOR,
               ERNAKULAM DISTRICT, PIN-682 307.

               BY ADVS.
               SRI.BABU JOSEPH KURUVATHAZHA
               SMT.K.S.ARCHANA

RESPONDENTS:

      1        KERALA LAND DEVELOPMENT CORPORATION LIMITED,
               T.C.11/570, BAINS COMPOUND, MUSEUM, KOWDIAR P.O.,
               THIRUVANANTHAURAM-695 003,
               REPRESENTED BY ITS MANAGING DIRECTOR.

      2        CONSTRUCTION ENGINEER,
               KERALA LAND DEVELOPMENT CORPORATION LIMITED,
               28/47, SABARI GARDENS, CHANDANAKKAVU ROAD,
               CHUNGAM, ALAPPUZHA-688 011.

      3        PROJECT ENGINEER,
               KERALA LAND DEVELOPMENT CORPORATION LIMITED,
               BUILDING NO.508, SAI DARSHAN, CHIRAKKADAVAM,
               KAYAMKULAM P.O.,
               ALAPPUZHA DISTRICT, PIN-690 572.

      4        ROY ABRAHAM,
               CHATHAMTHADATHIL HOUSE,
               EDAYAR P.O.,
               KOOTHATTUKULAM MUNICIPALITY,
               (COUNCILOR, DIVISION NO.XXV AND THE CHAIRMAN,
               KOOTHATTUKULAM MUNICIPALITY),
               KOOTHATTUKULAM P.O.,
               ERNAKULAM DISTRICT, PIN-686 662.
 WP(C).No.19765   OF 2020

                               2


             BY ADVS. SRI.G.BAIJURAJ

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.19765    OF 2020

                                         3


                                JUDGMENT

The termination of contract ordered by

the 2nd respondent in Ext.P13, imposing risk

and cost liability on petitioner is under

challenge in this writ petition.

2. Based on a tender notification issued

by the 2nd respondent for renovation of

Chandathodu and for effecting improvements to

Paddy production in Koothattukulam Grama

Panchayat, petitioner was awarded the work;

agreement was executed on 07.11.2018

stipulating the time for completion as twelve

months. The site was handed over to petitioner

as per Ext.P1 proceedings on 17.11.2018. The

case of the petitioner is that though he went

to the site along with technical/skilled staff

and machinery, for commencing the work on

27.11.2018, on account of obstructions caused

by the 4th respondent, who was the Councilor WP(C).No.19765 OF 2020

of the said ward along with several other

local people, the petitioner was unable to

carry out the work. Petitioner had brought

these incidents to the notice of the

respondents 2 and 3 several times, by way of

representations Exts.P3, P4, P5, etc and had

been requesting them to take appropriate

action to enable him to carry out the work. It

is stated that based on the demands made by

the 4th respondent and his men, Government had

issued Ext.P6 order on 26.02.2020 giving

approval to revised estimate for the work

awarded to the petitioner, including certain

additional works. Petitioner points out that

the work covered by Ext.P6 order was entirely

different from that covered by the agreement

executed by him/the work order given to him.

It is stated that the 3rd respondent thereafter

as per Ext.P7 letter dated 10.03.2020 directed WP(C).No.19765 OF 2020

the petitioner to commence the work. It is

stated that the 4th respondent had approached

this Court in the meanwhile in W.P.(C)

No.30657/2019 seeking for directions in

respect of the work awarded to the petitioner.

According to the petitioner, even though the

contractor was made a party in that writ

petition, no notice was served on him. Ext.P8

letter dated 18.03.2020 was also issued to

petitioner directing him to commence the work

pointing out the judgments in W.P.(C)

Nos.30657 and 30659 of 2019. Thereupon

petitioner submitted Ext.P9 letter dated

18.03.2020 to the 3rd respondent expressing

his unwillingness to commence the work covered

by the agreement and requesting to relieve

him from the contract. It was followed by

Ext.P10 representation and Ext.P11

representation submitted on 18.05.2020 WP(C).No.19765 OF 2020

requesting to relieve him from the agreement

and to allow him to execute the closure

agreement. Thereafter he approached this Court

in W.P.(C) No.11268/2020 and this Court as per

Ext.P12 judgment directed the 2nd respondent

to pass suitable orders. But the 2nd

respondent issued Ext.P13 order, in

consultation with the 1st respondent,

terminating the work awarded to the petitioner

at his risk and cost stating that he failed to

fulfill his obligation of starting the work

and completing the same.

3. Petitioner points out that he was

unable to carry out the work only because of

the inaction of the respondents in making

available a hindrance free work site. The

original period of agreement expired on

06.11.2019. Thereafter there was no effective

action for extension of the agreement. It is WP(C).No.19765 OF 2020

stated that the termination at the risk and

cost of the petitioner, when the respondents

are very well aware of the fact that the work

got delayed only at their instance, is

arbitrary.

4. The 1st respondent has filed a counter

affidavit. It is stated that the Project

Engineer, who was holding supervisory charge

on the project, had reported that there were

disputes at the site from various corners

suggesting additional work in view of the

floods affected in 2018. On the basis of the

demands made by the Councilor and the local

people, KLDC got the administrative sanction

revised from the Government. It is stated that

in view of the disputes at the site, it

became necessary to undertake re-survey. It is

further stated that since initial levels could

not be reported, the respondents were unable WP(C).No.19765 OF 2020

to give directions to commence the work. It is

stated that the respondents did not expect any

obstruction to the work at the time of

execution of agreement and that entire team of

KLDC tried their best to resolve the disputes

by convening several meetings and discussions

with the Municipality and Padasekhara samithy

and in order to settle the disputes, it was

decided to include additional works in the

estimate and revised estimate was prepared and

submitted to Government. It is stated that

petitioner did not participate in any of the

meetings and did not do anything for an

amicable settlement. It is further stated that

as per the provisions contained in clause 2112

of PWD manual, the contractor has to apply for

extension of time through Project Engineer

before the expiry of period of completion. It

is stated that petitioner did not submit any WP(C).No.19765 OF 2020

application for extension even after Ext.R1(b)

letter was sent on 16.11.2019; in Ext.P7

letter issued after receipt of sanction for

additional work, petitioner was asked to take

steps for extension of agreement and to make

arrangements for execution. It is stated that

there was direction from this Court also in

respect of the work and the petitioner, who

was a party to the judgment, is bound by it.

According to the respondents, petitioner is

bound to execute the project as per the

agreement as well as Ext.P8(a) judgment. It is

stated that the site became clear after

17.03.2020 on completion of re-survey and the

initial level survey and on reporting of the

proposed quantities to the Technical Examiner

on 17.03.2020. It is stated that petitioner is

liable to carry out the work as per the

provisions in the agreement and PWD Manual. It WP(C).No.19765 OF 2020

is stated that in reply to petitioner's

request for foreclosure, the respondent had as

per letter dated 13.05.2020 asked him to

commence the work, as the disputes were

settled and revised estimate was sanctioned.

He did not attend the meeting convened with

Municipality for immediate completion of the

work for protecting the area from flood. Since

he did not co-operate, the respondents had to

arrange urgent work in order to protect the

area from the flood. According to the

respondent, the contractors are expected to

anticipate such contingencies when they are

participating in the tender.

5. Petitioner has filed a reply affidavit

stating that even on 06.11.2019, the date on

which the time stipulated in the agreement

expired, the work site was not ready.

According to the petitioner, a contractor need WP(C).No.19765 OF 2020

seek extension of agreement only if the work

had commenced in time and some hindrance

occurred in the midst. According to him, when

admittedly the work could not be commenced on

account of obstruction from outside the

respondents ought not have terminated the

contract at his risk and cost. It is stated

that the relevant provision in the PWD manual

in such circumstances is not Clause 2112 as

alleged by the respondents but on the other

hand, it is 2003.

6. I heard Sri.Babu Joseph Kuruvathazha,

learned counsel appearing for the petitioner

and Sri.Baijuraj G., learned Standing Counsel

appearing for the respondents.

7. Admitted facts in the case are that

agreement was executed on 07.11.2018 and as

per the agreement, the work was to be

completed before 06.11.2019. But it is also an WP(C).No.19765 OF 2020

admitted fact that the petitioner could not

commence work due to obstructions. In

paragraph 6 of the counter affidavit the first

respondent stated as follows: "As initial

levels could not be reported, we were unable

to give directions to start the work". In

paragraph 13 he stated: "The initial level

survey completed after Re-survey and proposed

quantities reported to the Chief Technical

Examiner on 17.03.2020. Then the site is very

clear to carry out the work." The 1st

respondent has also stated that additional

work was included and revised estimate was

sanctioned on 06.02.2020. Therefore from these

admitted facts, it would appear that the

respondent were unable to provide the work

site, free from hindrance either as on

06.11.2019 and till March 2020.

8. As the respondents rely on Clause 2112 WP(C).No.19765 OF 2020

in support of the contention that it is

incumbent on the contractor to apply for

extension, in view of the following provision

in Clause 2112 of PWD Manual, which reads as

follows: "if however the failure of the

contractor to complete the work on the

stipulated date is due to any departmental

delays or due to design and construction

problems faced during execution then he may

apply for extension of time through the

Assistant Engineer before expiry of the

period of completion. As pointed out by the

learned Counsel for the petitioner, in the

present case the work is admittedly not

commenced. Respondents do not rely on any

provision dealing with extension of agreement

in a case, where the work is not commenced.

9. Clause 2003 of PWD Manual relied on by

the petitioner, provides:

WP(C).No.19765 OF 2020

"xxxx if there is a time lag of one year between the date of preparation of the estimate and date of tender of work, it is necessary to verify whether any changes have occurred necessitating modification to the provisions in the estimate. If the modifications required are only minor the officer competent to enter into contract may invite tenders on the basis of the sanctioned estimate. Otherwise the estimate shall be recast and tenders invited on that basis."

10. It would appear that the aforesaid

provision also does not deal with a case,

where the administrative sanction is obtained

for revised estimate after the awarding of

work and after the execution of agreement. At

any rate, there is modification to the

estimate after more than one year of the

tender and after the agreement. It is a case,

where the petitioner had been requesting for

hindrance free site till the expiry of the

agreement. He has been requesting for

foreclosure of the same from 16.11.2019 WP(C).No.19765 OF 2020

onwards. The respondents themselves say that

work could be started from 17.03.2020 that too

after inclusion of additional work and on a

revised estimate, not covered by the agreement

which expired.

In such circumstances, I am of the

view that the respondents cannot on the

strength of clause 2112 of PWD Manual insist

that petitioner should have got the agreement

extended. The only provision relied on by the

respondents for insisting the petitioner to

apply for extension of the agreement for

completing the work is clause 2112. Normally

this Court would have refrained from

interfering with such matters of contract. But

in the light of the admitted factual

circumstances of the case, I am of the view

that imposing of risk and cost while

terminating the contract was unwarranted. WP(C).No.19765 OF 2020

Therefore, Ext.P13 order to the extent it

stipulates the termination of contract at the

risk and cost of petitioner is set aside.

Accordingly the writ petition is

allowed to the extent indicated above.

Sd/-

P.V.ASHA JUDGE

ww WP(C).No.19765 OF 2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOCOPY OF THE PROCEEDING DATED 17.11.2018, HANDING OVER THE SITE TO THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE LETTER DATED 19.12.2018 WRITTEN BY THE 4TH RESPONDENT TO THE IST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 31.12.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE RERPESENTATION DATED 2.2.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 16.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE G.O.(RT) NO.263/2020/AGRI.

DATED 26.2.2020 ISSUED BY THE GOVERNMENT.

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 10.3.2020 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE DIRECTION DATED 18.3.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P8(A) TRUE COPY OF THE JUDGMENT DATED 16.11.2019 IN WPC NOS.30657 AND 30659 OF 2019 OF THIS HON'BLE COURT.

EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 18.3.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 18.5.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 18.5.2020 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.

WP(C).No.19765 OF 2020

EXHIBIT P12 TRUE COPY OF THE INTERIM ORDER DATED 26.6.2020 IN WPC NO.11268/2020 OF THIS HON'BLE COURT.

EXHIBIT P13 TRUE COPY OF THE ORDER DATED 20.8.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P14 TRUE PHOTOCOPY OF SECTION 2003 OF THE PWD MANUAL REVISED EDITION 2012.

RESPONDENTS' EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE SPECIFIC PORTION OF PWD MANUAL.

EXHIBIT R1(B) TRUE COPY OF THE LETTER DATED 16/11/2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED 14/05/2020 ISSUED BY THE 1ST RESPONDENT.