M/S. Modern Construction Company ... vs State Of Kerala
2021 Latest Caselaw 5031 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE N.NAGARESH

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

                       WP(C).No.6744 OF 2020(P)


PETITIONERS:

      1        M/S. MODERN CONSTRUCTION COMPANY PVT. LTD.,
               NO.54, HK HOUSE, ASHRAM ROAD,
               AHAMADABAD-380009,
               REPRESENTED BY ITS EXECUTIVE DIRECTOR,
               SAUMIL PATEL.

      2        SAUMIL PATEL,
               S/O.ARUN PATEL, EXECUTIVE DIRECTOR,
               M/S.MODERN CONSTRUCTION COMPANY PVT. LTD.,
               NO.54, HK HOUSE,
               ASHRAM ROAD, AHAMADABAD-380009.

               BY ADVS.
               SRI.D.KISHORE
               SMT.MINI GOPINATH
               SMT.MEERA GOPINATH
               SRI.R.MURALEEKRISHNAN (MALAKKARA)

RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
               DEPARTMENT OF WATER RESOURCES,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695001.

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

      3        THE EXECUTIVE ENGINEER,
               KERALA WATER AUTHORITY,
               THIRUVANANTHAPURAM-695033.

      4        THE PROJECT COORDINATOR,
               JNNURM PROJECT IMPLEMENTATION UNIT
               (JAWAHARLAL NEHRU NATIONAL
               URBAN RENEWAL MISSION),
               KERALA WATER AUTHORITY,
               THIRUVANANTHAPURAM-695033.
 WP(C).No.6744/2020(P)

                               2

ADDL.   5    EXECUTIVE ENGINEER,
             BUILDING SPECIAL DIVISION,
             THIRUVANANTHAPURAM.

             ADDITIONAL R5 IS SUO MOTU IMPLEADED AS PER THE
             ORDER DATED 20.11.2020 IN WP(C) 6744/2020.

             R1-4 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER
             AUTHORITY
             ADDL.R5 BY SR. GOVERNMENT PLEADER
             SRI K.V. MANOJ KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.6744/2020(P)

                                  3




                            JUDGMENT

Dated this the 11th day of February, 2021

The petitioners undertook certain work of the

respondents 2 to 4. As the work was allegedly delayed, the

Managing Director of the Kerala Water Authority decided not

to execute the balance work under the contract through the

petitioners.

2. The petitioners thereupon filed W.P.(C) No.3585

of 2014 before this Court. The prime reason for delay in

execution of work, urged by the petitioners, was that the

respondents have not obtained requisite statutory

permissions to further proceed with the work. This Court

disposed of the W.P.(C) No.3585 of 2014 as per Ext.P20

judgment directing the respondents to secure whatever WP(C).No.6744/2020(P)

permission necessitated from the Statutory authorities or

others within a period of two months and the petitioners were

given 6 months periods there after to complete the work.

3. The petitioners submit that they have already

raised a claim against the respondents before the Micro and

Small Enterprises Facilitation Council at Gujarat. The

respondents question the maintainability of the proceedings

before the Micro and Small Enterprises Facilitation Council,

Gujarat. This Court in Ext.P20 judgment made it clear that

this Court has not expressed any opinion on the claim

raised by the respondents before the Micro and Small

Enterprises Facilitation Council at Gujarat.

4. After the said Ext.P20 judgment, the respondents

terminated the contract with the petitioners as per Ext.P48

order dated 03.03.2020. It is primarily challenging the said

order of termination that the petitioners have approached

this Court. Before this Court also, the learned counsel for

the petitioners contended that permissions from Statutory WP(C).No.6744/2020(P)

authorities have not been obtained by the respondents so far

and urged that they are willing to carry out the balance work

provided the respondents get all Statutory permissions.

Thereupon this Court passed an interim order on 20.11.2020

directing the additional 5th respondent-Executive Engineer,

Building Special Division, Thiruvananthapuram to make an

inspection and submit a report in this regard, before this

Court.

5. The said Engineer has submitted a report before

this Court. It is reported that requisite permissions are there

and further permissions are not required for the petitioners to

proceed with the work. The petitioners vehemently denied

the said report of the Executive Engineer.

6. After perusing the pleadings in the writ petition

and after hearing the counsel on either sides, this Court is of

the considered opinion that the writ petition involves disputed

questions of fact, which this Court cannot adjudicate in a

proceedings under Article 226 of the Constitution of India. In WP(C).No.6744/2020(P)

the circumstances, the petitioners will have to be relegated

to other appropriate remedies.

7. The petitioners submit that they have already

approached the Micro and Small Enterprises Facilitation

Council, Gujarat and the petitioners may be given liberty to

approach the said forum for adjudication of their grievances.

In view of the facts alleged in the writ petition, this Court

finds that the Bank Guarantee provided by the petitioners, if

revoked unilaterally by the respondents at this stage, the

petitioners will be put to untold hardship. In the

circumstances, the petitioners are given liberty as sought for,

to approach the Micro and Small Enterprises Facilitation

Council, Gujarat within a period of three months. If the

petitioners approach the said forum within three months,

then the invocation of Bank Guarantee should stand

deferred, till the proceedings are finalized. The petitioners

will have to renew the Bank Guarantee from time to time.

8. It is made clear that this Court has not WP(C).No.6744/2020(P)

pronounced anything on merit of the claims made by either

parties or on the maintainability of any proceedings before

the Micro and Small Enterprises Facilitation Council, Gujarat.

It is further made clear that this Court has also not made any

findings on the acceptability or otherwise of the report filed

by the additional 5th respondent before this Court.

The writ petition is disposed of as above.

Sd/-

N. NAGARESH JUDGE SR WP(C).No.6744/2020(P)

APPENDIX OF WP(C) 6744/2020 PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACTS OF THE AGREEMENT DATED 8.4.2010 BETWEEN THE 4TH RESPONDENT AND THE 1ST PETITIONER.

EXHIBIT P2 TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 15.2.2012.

EXHIBIT P3 TRUE COPY OF THE LETTER DATED 20.2.2012 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 8.3.2012 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE 2ND SUPPLEMENTARY AGREEMENT DATED NIL.

EXHIBIT P6 TRUE COPY OF THE LETTER DATED 12.12.2012 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE 3RD SUPPLEMENTARY AGREEMENT DATED NIL.

EXHIBIT P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE 39TH EMPOWERED COMMITTEE MEETING HELD ON 22.5.2013.

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 14.12.2013 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE E-TENDER NOTICE DATED 22.1.2014 PUBLISHED BY THE 4TH RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE REQUEST DATED 10.2.2016 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 19.10.2016 OF THE HONOURABLE HIGH COURT OF GUJARAT. WP(C).No.6744/2020(P)

EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS DATED 6.7.2017 OF THE ADDITIONAL COMMISSIONER OF INDUSTRIES, INDUSTRIES COMMISSIONERATE, GANDHINAGAR.

EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED 25.7.2017 ISSUED BY THE GCCI TO HONOURABLE JUSTICE C.K.BUCH.

EXHIBIT P15 TRUE COPY OF THE PROCEEDINGS OF THE SOLE ARBITRATOR DATED 31.7.2017.

EXHIBIT P16 TRUE COPY OF THE REPRESENTATION DATED 18.3.2017 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE PROCEEDINGS NO.KWA/JNNURM-

PIU/WS-27/09/D1 DATED 24.7.2017 OF THE 4TH RESPONDENT.

EXHIBIT P18 TRUE COPY OF THE COMMUNICATION DATED 1.7.2017 SUBMITTED BY THE PETITIONERS TO THE 4TH RESPONDENT.

EXHIBIT P19 TRUE COPY OF THE PROCEEDINGS NO.KWA/JNNURM/PIU/WS-27/09/D1/11 DATED 23.1.2019 OF THE MANAGING DIRECTOR, KERALA WATER AUTHORITY.

EXHIBIT P20 TRUE COPY OF THE JUDGMENT DATED 29.5.2019 IN W.P.(C) NO.3585 OF 2014 OF THIS HONOURABLE COURT.

EXHIBIT P21 TRUE COPY OF THE LIST SHOWING THE DETAILS OF COMMUNICATIONS SUBMITTED BY THE PETITIONERS BEFORE THE KERALA WATER AUTHORITY.

EXHIBIT P22 A LIST OF LETTERS ISSUED BY THE PETITIONERS AS WELL AS BY THE RESPONDENTS.

EXHIBIT P23 TRUE COPY OF THE COMMUNICATION DATED 4.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

WP(C).No.6744/2020(P)

EXHIBIT P24 TRUE COPY OF THE COMMUNICATION DATED 7.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P25 TRUE COPY OF THE COMMUNICATION DATED 10.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P26 TRUE COPY OF THE COMMUNICATION DATED 13.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P27 TRUE COPY OF THE COMMUNICATION DATED 18.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P28 TRUE COPY OF THE COMMUNICATION DATED 19.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P29 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 25.6.2019.

EXHIBIT P30 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 2.7.2019.

EXHIBIT P31 TRUE COPY OF THE COMMUNICATION DATED 6.7.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT .

EXHIBIT P32 TRUE COPY OF THE ORDER DATED 17.7.2019 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P33 TRUE COPY OF THE COMMUNICATION DATED 19.7.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P34 TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT OF CHERUVETTUKADU AREA.

EXHIBIT P34(A) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO 'RIVERS'.

WP(C).No.6744/2020(P)

EXHIBIT P34(B) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO THEKKUMMOODU-KANNAMMOOLA ROAD.

EXHIBIT P34(C) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO THIRUMALA-THRIKKANNAPURAM ROAD.

EXHIBIT P34(D) TRUE COPY OF THE COMMUNICATION DATED 26.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO ULLOOR PRASANTH NAGAR ROAD.

EXHIBIT P34(E) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO SASTHRINAGAR-KARAMANA-NAMOM ROAD.

EXHIBIT P34(F) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO THIRUVALLOM-KALLADICHAMMOOLA ROAD.

EXHIBIT P35 TRUE COPY OF THE COMMUNICATION DATED 30.7.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P36 TRUE COPY OF THE COMMUNICATION DATED 31.7.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P37 TRUE COPY OF THE COMMUNICATION DATED 14.8.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P38 TRUE COPY OF THE COMMUNICATION DATED 20.8.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P39 TRUE COPY OF THE COMMUNICATION DATED 28.8.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

WP(C).No.6744/2020(P)

EXHIBIT P40 TRUE COPY OF THE COMMUNICATION DATED 8.9.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ALONG WITH THE LIST OF LOCATIONS WERE WORK IS COMPLETED.

EXHIBIT P41 TRUE COPY OF THE COMMUNICATION DATED 18.9.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P42 TRUE COPY OF THE COMMUNICATION DATED 1.10.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P43 TRUE COPY OF THE COMMUNICATION DATED 4.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P44 TRUE COPY OF THE COMMUNICATION DATED 4.1.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P45 TRUE COPY OF THE FINAL NOTICE DATED 3.2.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT P46 TRUE COPY OF THE EXPLANATION DATED 6.2.2020 TO EXHIBIT P45 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT.

EXHIBIT P47 TRUE COPY OF THE NOTICE DATED 12.2.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS.

EXHIBIT P48 TRUE COPY OF THE PROCEEDINGS NO.KWA/JNNURM-

PIU/WS-27/09/D1 DATED 3.3.2020 ISSUED BY THE 4TH RESPONDENT.

RESPONDENTS' EXHIBITS:

ANNEXURE A1 A TRUE COPY OF THE MINUTES OF THE MEETING OF THE DISTRICT LEVEL PUBLIC UTILITY CO- ORDINATION COMMITTEE HELD ON 01.06.2019.

ANNEXURE A2 A TRUE COPY OF THE MINUTES OF THE EMPOWERED COMMITTEE HELD ON 01.06.2019.

WP(C).No.6744/2020(P)

ANNEXURE A3 A TRUE COPY OF THE COMMUNICATION GIVEN TO THE PETITIONER ON 04.01.2020.

ANNEXURE A4 A TRUE COPY OF THE DIRECTION ISSUED TO THE PETITIONER.

ANNEXURE A5 A TRUE COPY OF THE DIRECTIONS ISSUED TO THE PETITIONER TOP MAKE INTERCONNECTIONS AND COMPLETE VALVE CHAMBERS.

EXHIBIT R2(I) TRUE COPY OF THE LETTER DATED 15.09.2020 ISSUED BY THE ASST.ENGINEER PWD CITY ROAD SECTION, THIRUVANANTHAPURAM TO THE 3RD PETITIONER/RESPONDENT.

ANNEXURE I TRUE COPY OF THE SUBMISSION DATED 09.12.2020 MADE BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

ANNEXURE II TRUE COPY OF THE REPRESENTATION DATED 12.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT ALONG WITH THE DRAWINGS.

SR                        //TRUE COPY//                  PA TO JUDGE