T.T.Sunny vs The State Of Kerala
2021 Latest Caselaw 1417 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE K.HARIPAL

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                           WA.No.82 OF 2021

AGAINST THE ORDER/JUDGMENT IN WP(C) 19703/2020(K) OF HIGH COURT OF
                              KERALA
APPELLANT/PETITIONER:

             T.T.SUNNY,
             AGED 76 YEARS,
             P.W.D CONTRACTOR,
             THANDEKKATTU HOUSE,
             MEENANGADI P.O., WAYANAD DISTRICT,
             PIN 673 591.

             BY ADVS.
             SRI.G.SHRIKUMAR (SR.)
             SRI.GEORGE MECHERIL

RESPONDENTS/RESPONDENTS:

      1      THE STATE OF KERALA
             REP.BY ITS SECRETARY TO GOVERNMENT,
             PUBLIC WORKS DEPARTMENT, SECRETARIAT,
             THIRUVANANTHAPURAM, PIN 695 001.

      2      THE CHIEF ENGINEER,
             PUBLIC WORKS DEPARTMENTS (ROADS AND BRIDGES),
             THIRUVANANTHAPURAM, PIN 695 001.

      3      THE SUPERINTENDING ENGINEER,
             PWD ROADS (NORTH CIRCLE),
             P.W.D. COMPLEX, MANAMCHIRA,
             KOZHIKODE, PIN 673 001.

      4      SAJI MATHEW,
             P.W.D.CONTRACTOR,
             5TH MILES, MANANTHAVADY,
             WAYANAD DISTRICT, PIN 670 645.

             R1-4 BY RENIL ANTO KANDAMKULATHI GP

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Writ Appeal No. 82 of 2021

                                      2




                                 JUDGMENT

Ravikumar, J.

This appeal is preferred against judgment dated

11-12-2020 in W.P.(C) No. 19703/2020. The appellant filed the said

writ petition mainly assailing Exhibit P8. He also sought for

quashment of Exhibit R3(b) and also for a direction to respondents 1

to 3 to permit him to complete the work in question within the time

frame fixed in Exhibit P1 by accepting an undertaking to that effect,

to be filed, without change of any other conditions. The respondents

filed a counter affidavit resisting the claims and contentions of the

appellant. The learned Single Judge after considering the rival

contentions and taking note of the relevant clause in the P.W.D.

Manual namely; clause 2009.6, declined to accept the contentions of

the petitioner and consequently dismissed the writ petition. It is in

such circumstances that this appeal has been preferred.

2. Heard the learned counsel for the appellant as also the

learned Government Pleader.

3. A brief narration of the facts which constrained the Writ Appeal No. 82 of 2021

appellant to approach this Court by filing the above-mentioned writ

petition is necessary for a proper disposal of this appeal. In fact, on

the terms of the agreement there is no dispute. The petitioner who is

an A class contractor was awarded, on his being becoming the

successful tenderer, the work of 'providing BM & BC to

Thalasserry-Baveli Road between KM/86/000 to 93/000 in Wayanad

District'. As L1 in respect of the said work, he was to execute an

agreement within 14 days and a grace period of 10 days was also

available for the said purpose in case of failure to execute the

agreement within 14 days. Accordingly, the appellant was directed

to produce stamp paper worth Rs.43,200/- and also remit a sum of

Rs.21,58,500/- towards performance guarantee. Admittedly, as per

the tender conditions, out of the said amount, 50% should have been

treasury deposit and the rest bank guarantee. The fact is that the

petitioner could not execute the agreement and also the work, within

the time stipulated.

4. It is the case of the petitioner that, he is a septuagenarian

and on account of the outbreak of Covid-19 pandemic he was not in

a position to undertake the work after executing an agreement and

hence he submitted Exhibit P2 letter dated 29-06-2020. As per the Writ Appeal No. 82 of 2021

same he intimated the respondents that he was ready to commence

the work without executing the agreement and also sought for

extension of time for execution of the work. Later, he was issued

with Exhibit P5 letter dated 12-08-2020, informing that in case of

his failure to execute the agreement within 7 days from the date of

receipt of the same, without further intimation, his selection would

be cancelled at his risk and cost. Admittedly, even within the time

stipulated therein, the petitioner could not execute the agreement

and commence the work. Thereafter, Exhibit P8 letter dated

16-09-2020 was issued to him by the 3rd respondent. Along with the

same, stamp paper, security deposit and bank guarantee furnished by

the appellant were returned. In and vide Ext.P8 he was intimated

that on account of his failure to execute the agreement in terms of

the provisions under Clause 2009.6 of the P.W.D. Manual, L2 was

given the option to undertake the work at the same rate with same

conditions. Evidently, L2 accepted and executed the agreement. As

a matter of fact, the necessary stamp paper along with the bank

guarantee from the appellant reached the 3rd respondent only after

L2 was entrusted with the work. The sole ground on which the

petitioner assails Exhibit P8 as also Exhibit R3(b) is that the order of Writ Appeal No. 82 of 2021

cancellation was not properly communicated to him. It was also his

contention that upon his selection as L1, he accrued a right in

respect of the work in question and that right could not have been

taken away in the manner revealed from Exhibit P8.

5. The impugned judgment would reveal that the said

contention which was attempted to be established in the light of

certain decisions were taken into consideration by the learned Single

Judge. The learned Single Judge virtually considered the question

whether the petitioner is right in contending that in respect of the

work he accrued a right. Evidently, it was found that by the mere

selection he had not accrued any right in respect of the work and he

could have claimed accrual of such a right only after execution of

the agreement pursuant to the selection. Despite granting of

sufficient time even beyond the permissible period, he could not

execute the agreement and therefore his claims and contentions are

untenable. On the mere contention that he did not get a separate

communication regarding the cancellation of selection notice,

Exhibit P8 is not liable to be interfered with, especially in the light

of Ext.P5. We are of the considered view that the petitioner could

have raised a contention that he had accrued a right in respect of the Writ Appeal No. 82 of 2021

work, provided there is a concluded contract in respect of the work

in his favour. The facts narrated above would reveal that after his

selection he was called upon to execute the agreement. Admittedly,

it was not executed. There is no dispute regarding the factum of

non-execution of the agreement. When that be so, it can only be

said that there is no concluded contract which could confer any right

on the appellant in respect of the work. In such circumstances, we

are of the view that the conclusion and finding of the learned Single

Judge that the mere selection had not conferred any right on the

appellant is a lawful conclusion and the failure to give a separate

communication could not be taken as a ground to interfere with

Exhibit P8 with cancellation of the selection of the appellant in the

circumstances obtained in this case. Obviously, the learned Single

Judge also found that the action on the part of the 3 rd respondent

could only be viewed as an action taken to protect public interest in

view of the urgent nature of the work.

6. The learned Senior government Pleader submitted that

subsequent to the award of the work to L2 in terms of provisions

under Clause 2009.6 of the P.W.D. Manual, 60% of the work in

question has already been completed. Taking into account all the Writ Appeal No. 82 of 2021

afore said aspects we do not find any reason to interfere with the

impugned judgment in exercise of the appellate power under

Section 5 of the High Court Act.

7. When we are about to part with the judgment, the

learned counsel for the appellant made a submission that the

appellant may be permitted to approach the respondents with a

request for refund of E.M.D. which he has deposited. It is submitted

that it is refundable in view of the fact that apparently no loss was

caused to the respondents at the instance of the appellant. We do not

think it proper to make any observations with respect to such

submissions. However, we are of the view that liberty can be given

to the appellant to approach the respondents with such a request, in

case he desires to do so.

Subject to the same this writ appeal stands dismissed.

Sd/-

C.T.RAVIKUMAR JUDGE Sd/-

K.HARIPAL JUDGE

SSK/14/01