Benny Thomas vs State Of Kerala
2021 Latest Caselaw 5015 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                      WP(C).No.25998 OF 2020(Y)


PETITIONER:

               BENNY THOMAS
               AGED 55 YEARS
               S/O.P.T. THOMAS, PALATHINGAL HOUSE, KONGORPILLY P.O,
               ERNAKULAM DISTRICT.

               BY ADVS.
               SRI.JOMY GEORGE
               SRI.R.PADMARAJ
               SRI.M.J.BENNY
               SRI.DEEPAK MOHAN
               SMT. CHITRA N. DAS
               SHRI.RISHAB S.
               SMT.ASHA V.S.NAIR
               SRI.R.AJITH KUMAR [V.K.EDOM]

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM - 695001.

      2        SUPERINTENDING ENGINEER,
               PWD ROADS AND BRIDGES CENTRE CIRCLE, ALUVA - 683101,
               ERNAKULAM DISTRICT.

      3        EXECUTIVE ENGINEER
               PWD ROADS AND BRIDGES DIVISION, THRIKKAKARA P.O,
               ERNAKULAM - 682021.

               R2 BY adv.SMT.VINITHA.B, GOVERNMENT PLEADER



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.25998 OF 2020(Y)

                                   2


                                JUDGMENT

Dated this the 11th day of February 2021

The petitioner is a contractor who has

undertaken the work of "one time maintenance

2015-16 of village roads-Elankunnapuzha beach

road Kana Kizhakke Appangad Palampilly link

road connecting Kana Elankunnapuzha Grama

Panchayat Ward No.2 & 5, improvements to

Kappela Kadathukadavu tarring sandal master-

central boat jetty road in Kadamakkudy Grama

Panchayat ward 5, 13, Puthukkad road-Karthedam

Bank junction road in Mulavukad Grama Panchayat

ward No.15, Vallyaparmbu cultural fine arts

road-Kurisingal Sahakarana road Kurisupalli

& 11" based on Ext.P1 selection notice after

executing agreement on 03.03.2016. Petitioner's

case is that though the date of completion of

the work was on 10.07.2016, the work could be

completed only on 27.02.2017 because of the WP(C).No.25998 OF 2020(Y)

monsoon and boundary disputes. Relying on

Ext.P2 letter dated 08.11.2016 petitioner

stated that the Executive Engineer had

addressed the 2nd respondent recommending

extension of time and accordingly the 3rd

respondent had permitted the petitioner to

complete the work without any fine and the work

was completed to the full satisfaction of the

respondents. Petitioner complains that though

the final bill for a sum of Rs.70,47,596/- was

submitted on 27.02.2017 the respondents were

not taking any action to approve the same and

to release the amount.

2. The 2nd respondent has filed a

statement raising allegations against the

petitioner pointing out the date shown in

Ext.P2. It is stated that the date

'08.11.2016' shown in Ext.P2 is not correct and

the actual date of Ext.P2 was '24.07.2017'. It

is also stated that as per Ext.R2(a) letter

dated 24.07.2017, the 3rd respondent had WP(C).No.25998 OF 2020(Y)

recommended extension of time for completion of

the work up to 10.11.2016; even though the said

letter was handed over to the petitioner

himself on 24.07.2017 for submitting the same

to 2nd respondent, he had not submitted the

same to the 2nd respondent. The 2nd respondent

alleged that the petitioner has filed this writ

petition making false statements and

fabricating documents. The further contention

is that, since the petitioner did not submit

any application, there was no extension of the

agreement and in the absence of a supplementary

agreement, it is not possible to make any

payment. At the same time it is also stated

that, in case the petitioner had submitted the

said letter in time, the 3rd respondent could

have submitted a recommendation to the 2nd

respondent (in advance) and could have

sanctioned the extension before expiry of the

original agreement. It is also stated that the

petitioner submitted both the extension WP(C).No.25998 OF 2020(Y)

applications together to the 3rd respondent,

which he had received from the Assistant

Executive Engineer on 07.07.2016 and on

18.11.2016. In Paragraph No.9 of the statement

the respondents stated as follows:-

"More than 4 years has expired since the expiry of the original agreement and till date the petitioner has not submitted any request or representation to the 2nd respondent regarding the non- sanctioning of the extension of completion time."

3. Heard Adv.Sri.R.Padmaraj, the learned

counsel appearing for the petitioner and

Adv.Smt.B.Vinitha, the learned Government

Pleader.

4. On consideration of the contentions,

it is seen that there is no dispute as to the

work carried out by the petitioner. The

dispute raised relates to the date on which

Ext. P2 was issued. It appears that non-

submission of an application for extension of

the agreement at the relevant time is the WP(C).No.25998 OF 2020(Y)

reason for not approving the bill. At any rate

it is seen that the petitioner had approached

the 3rd respondent and the 3rd respondent had

given a letter which the petitioner did not

produce before the 2nd respondent. That would

show that, in case the 3rd respondent had

issued a letter to the 2nd respondent directly,

there would not have been any difficulty as

alleged.

5. When the respondents do not have any

dispute over the work already carried out, it

cannot be said that payment cannot be made

towards the same. In these circumstances it is

only appropriate that the petitioner approaches

the 2nd respondent with a representation for

extension of time and for execution of

supplementary agreement in order to complete

the formalities, if such formalities are

required to be completed for raising the bill.

In case the petitioner submits such a

representation, within a period of two weeks WP(C).No.25998 OF 2020(Y)

from the date of receipt of a copy of the

judgment, the 3rd respondent shall consider the

representation and take appropriate decision on

it for enabling payment due to the petitioner

within a period of one month and for releasing

the payment without any further delay.

The writ petition is accordingly disposed

of.

Sd/-

P.V.ASHA JUDGE DM WP(C).No.25998 OF 2020(Y)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LETTER DATED 10.02.2016 ISSUED BY THE 2ND RESPONDENT ACCEPTING THE TENDER SUBMITTED BY THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE LETTER DATED 08.11.2016 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.

RESPONDENTS EXHIBITS

ANNEXURE R2(A) TRUE COPY OF THE LETTER DATED 24.07.2017.

ANNEXURE R2(B) THE EXACT COPY OF EXHIBIT P2 DATED 24.07.2017.

//TRUE COPY//

PA TO JUDGE