Kerala High Court
K.Abdul Rehiman vs Kerala Police Housing And ... on 4 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 4TH DAY OF JANUARY 2021/14TH POUSHA, 1942
WP(C).No.14903 OF 2020(K)
PETITIONER:
K.ABDUL REHIMAN,THOTTARIKIL PURAYIDOM,
KALANJOOR P.O., PATHANAMTHITTA.
BY ADVS.
SRI.R.JAIKRISHNA
KUM.NARAYANI HARIKRISHNAN
RESPONDENTS:
1 KERALA POLICE HOUSING AND CONSTRUCTION
CORPORATION LTD,CHANDRASEKHARAN NAIR
STADIUM, PALAYAM, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM - 695 033,
REPRESENTED BY ITS MANAGING DIRECTOR.
2 CHIEF ENGINEER, KERALA POLICE HOUSING AND
CONSTRUCTION CORPORATION LTD.,
CHANDRASEKHARAN NAIR STADIUM,
PALAYAM, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM -695 033.
3 PROJECT ENGINEER, KERALA POLICE HOUSING AND
CONSTRUCTION CORPORATION LTD.,
OFFICE OF THE SUPERINTENDENT OF POLICE,
NEAR RAILWAY STATION, KOLLAM H.P.O.,
KOLLAM - 691 001.
R1-R3 BY ADV. SRI.C.K.GOVINDAN
R1-R3 BY ADV. SRI.L.P.ARAVINDAKSHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04-01-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WPC No.14903/2020
:2:
N. NAGARESH, J.
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W.P.(C) No.14903 of 2020
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Dated this the 4th day of January, 2021
JUDGMENT
~~~~~~~~~
Petitioner, a Class-B Contractor, has filed this writ
petition seeking to quash Ext.P12 revised estimate, Ext.P13
termination notice and Ext.P15 termination order and to
permit the petitioner to carry out the balance contract work of
construction of new Police Station at Sooranadu, Kollam
Rural (DSOR 2016 with new cost index).
2. The petitioner states that he is a Class-B
Contractor who has successfully undertaken and completed
various works of the 1st respondent-Kerala Police Housing
and Construction Corporation Limited, Local Self
Government Department (LSGD) and Public Works
Department (PWD). The petitioner participated in Ext.P1
WPC No.14903/2020
Notice Inviting Tender with respect to the work "Construction
of new Police Station at Sooranad, Kollam Rural (DSOR
2016 with new cost index)". The PAC for the tender was
₹93,87,277/-. The petitioner quoted 7.72% below the
estimate rate. The tender of the petitioner was accepted on
19.10.2019. Ext.P4 agreement was also executed on
21.11.2019.
3. However, the 1st respondent did not issue work
order immediately. Ext.P5 selection notice/work order was
issued on 14.01.2020. The work site was handed over to the
petitioner only on 15.01.2020. The time for completion of
work was 11 months from the date of handing over of the
site. Since the site was handed over on 15.01.2020, the time
for completion of work would expire only on 15.12.2020.
4. The petitioner states that on getting the site
handed over, the petitioner commenced the work and within
two months, by 13.03.2020, the petitioner had completed the
work of foundation, column and plinth beam. Completion of
such work was much in advance than the work schedule.
WPC No.14903/2020
After completion of the work, the petitioner noticed certain
inadequacies in Ext.P3-BOQ as well as with respect to
plastering work. The earth work for filling the foundation was
fixed as 63.5430 m³. The said quantity was inadequate to fill
the foundation. At least 170 m³ of earth was required.
Similarly, plastering of the walls suggested by the 3rd
respondent would have led to cracks in the wall in future. The
petitioner suggested that roof and the pillars shall be
concreted along with the construction of the walls. The
petitioner made these suggestions as per Ext.P7 on
15.04.2020 to the 1st respondent.
5. After substantial completion of the work on
13.03.2020, Covid-19 pandemic broke out across India and
nationwide lock down was declared. The petitioner therefore
could not carry on with the work. However, on 25.05.2020,
the 3rd respondent-Project Engineer issued Ext.P8 letter
stating that the Government of Kerala has granted relaxation
and the petitioner has not still commenced the work. The
petitioner submitted Ext.P9 reply to Ext.P8 letter, on
WPC No.14903/2020
05.06.2020, wherein the petitioner specifically pointed out the
progress of the work already achieved and that further work
can be carried out only on the respondents approving
sufficient quantities of earth for filling the foundation.
6. Without regard to Ext.P9, the 1 st respondent
issued Ext.P10 letter dated 08.06.2020 directing the
petitioner to restart the work urgently. Ext.P10 contained a
direction to the 3rd respondent to submit a revised estimate
for the work including required alteration/addition, if any, for
the satisfactory completion of work. However, there was no
reference in Ext.P10 as to the inadequacies pointed out by
the petitioner. The 3rd respondent thereupon issued Ext.P11
letter dated 11.06.2020 stating that all the inadequacies
highlighted by the petitioner were addressed in the revised
estimate and directed the petitioner to commence the work.
7. Exts.P10 and P11 referred to a "revised estimate".
The petitioner was kept in dark about the revision. On
enquiry, the petitioner was informed by the 3 rd respondent
that the BOQ was revised and the petitioner was required to
WPC No.14903/2020
proceed the work as per the revised estimate. The petitioner
had not received any official communication in respect of the
revised estimate. The revised estimate was forwarded by the
3rd respondent to the petitioner by email only on 19.06.2020,
as per Ext.P12.
8. Ext.P12 revised estimate was without prior
concurrence of the petitioner. The petitioner had accepted
the tender based on Ext.P1 tender notice and Ext.P3-BOQ,
which was for a sum of ₹93,87,277/-. The revised estimate
of ₹1,26,78,519/- was not fixed with the concurrence of the
petitioner. To the surprise and predicament of the petitioner,
the 2nd respondent issued Ext.P13 termination notice on
17.06.2020 stating that the petitioner has failed to complete
the work within the time and failed to maintain the required
progress so as to complete the work in time.
9. The petitioner submitted Ext.P14 letter to the 1 st
respondent. In Ext.P14 also, the petitioner pointed out that
the revised estimate prepared by the respondents is
inadequate. The petitioner requested that he be given 12%
WPC No.14903/2020
of the amount cut from the bill relating to the GST. The
petitioner also pointed out that deduction of ₹25,000/-
consequent to the alleged delay in work, is unsustainable.
The petitioner again pointed out the necessity to revise the
quantity of earth filling work. The petitioner requested the
respondents to permit him to continue and complete the
work.
10. The 2nd respondent, however, without adverting to
the contentions of the petitioner, issued Ext.P15 termination
order. Ext.P15 termination order dated 02.07.2020 was
communicated to the petitioner be by email on 13.07.2020.
The petitioner would submit that the hasty termination
proceedings initiated and concluded by the respondents are
with ulterior motives and malafide intentions.
11. The 1st respondent filed a counter affidavit in the
writ petition. The 1st respondent pointed out that stipulated
time of contract of work was 11 months from the date of
handing over the site. The site was handed over on
15.01.2020. There was a slight delay in settling part bill of the
WPC No.14903/2020
petitioner due to technical issues. The petitioner as per his
letter dated 15.04.2020 informed that he has completed the
work up to plinth beam before the first lock down. The 3 rd
respondent has reported that as per the schedule, the
structure of the new Police Station, Sooranadu is to be
constructed as framed structure. But, the petitioner is
suggesting to construct the building as load-bearing
structure. The petitioner is responsible for the defects, if any,
occurred in the construction.
12. The 1st respondent further stated that by Ext.P10
letter dated 08.06.2020, the petitioner was required to
resume the work urgently as per the agreed plan. However,
the petitioner informed that it is not possible to restart the
work without getting permission for filling earth and has
requested to inform the decision urgently. A meeting was
arranged by the District Police Chief, Kollam Rural for
discussing the issue in the construction. The petitioner did
not attend the meeting or restart the work. Accordingly, the
termination notice was issued to the petitioner.
WPC No.14903/2020
13. The 1st respondent further stated that structural
design of the work was prepared by an outside agency and
the same was approved by the Chief Engineer. Revised
estimates for the above work by incorporating the earth filling
and other additional items were already prepared. Since the
petitioner delayed execution of agreement, a penalty of
₹25,000/- was imposed. The Police Department had given
direction to complete the work before 14.12.2021 (sic). The
petitioner completed only 15% of the work. The lapses and
failure on the part of the petitioner to maintain the required
progress in the work was the reason for termination of the
contract.
14. I have heard the arguments raised by the counsel
for the petitioner and the arguments of the counsel for
respondents 1 to 3.
15. The work site was handed over to the petitioner
only on 15.01.2020. Therefore, the time for completion of
work will be up to 14.12.2020. There is no dispute as regards
the fact that the petitioner completed the work of foundation,
WPC No.14903/2020
column and plinth beam within two months by 13.03.2020.
Even according to the counter affidavit filed by the 1 st
respondent, 15% work had been completed by the petitioner.
The nationwide lock down was declared across the country
soon thereafter.
16. On 15.04.2020, during the lock down period, the
petitioner sent Ext.P7 letter to the 1st respondent pointing out
that requisite quantity of earth filling has not been provided in
the schedule of work and sought changes in that regard.
According to the petitioner, he held a discussion with the
then Project Engineer and suggested that above the plinth,
brickwork and filler work should be done together before
concreting the top which would reduce the possibility of
appearing cracks in the construction. However, the new
Project Engineer did not accept the said suggestion and
directed to proceed with the pillar work and concreting the
top and to carry out brickwork subsequently. The petitioner
informed the 1st respondent as per Ext.P7 that if work is
carried out in that manner, there is a strong possibility of
WPC No.14903/2020
cracks occurring and that the security period being five
years, the petitioner may not be able to secure the work for
five years.
17. Ext.P7 was submitted on 15.04.2020. On
25.05.2020, the Project Engineer, without referring to Ext.P7,
directed the petitioner to restart the work. Without getting
any approval for the larger quantum of earth filling work and
without getting further answer to the issues pointed out by
the petitioner as regards carrying out brickwork and pillar
work together, the petitioner could not have been expected to
restart the work. By Ext.P9 dated 05.06.2020, the petitioner
sent letter to the Project Engineer again reminding him that
no permission has been granted in respect of the filling work.
18. However, the 2nd respondent again issued Ext.P10
letter dated 08.06.2020, requiring the petitioner to restart the
work urgently. Though Ext.P10 letter of the 2 nd respondent
referred to Ext.P7 request made by the petitioner, no
decision in that regard was communicated to the petitioner in
Ext.P10.
WPC No.14903/2020
19. By by Ext.P11 letter dated 11.06.2020, the Project
Engineer informed the petitioner that he should construct the
structure as framed only. In between RCC and Masonary
joints Chicken Mesh were considered in Revised Estimate for
avoiding the cracks. The plinth filling earth quantity may
deviate and that also is considered in the revised estimate.
The petitioner would submit that Ext.P11 was the first
communication intimating about the revision of estimate.
Ext.P12 revised estimate was prepared without consulting
the petitioner.
20. A perusal of Clause 1.17 of Ext.P3 schedule and
the additional specification at serial No.16 of Ext.P12 would
show that the concern and requirement made by the
petitioner as regards earth filling work was genuine and the
respondents have increased the quantity of earth filling from
63.5430 m³ to 160.947 m³. The revised estimate was
communicated to the petitioner only on 19.06.2020. The
delay in executing the work from 13.03.2020 till Ext.P12
revised estimate was communicated on 19.06.2020, cannot
WPC No.14903/2020
be attributed to the petitioner. However, it is seen that even
before Ext.P12 revised estimates was communicated to the
petitioner, the 2nd respondent issued Ext.P13 termination
notice holding that the petitioner has failed to maintain the
required progress in work. Going by the sequence of events
including the lock down consequent to pandemic and going
by the sequence of communications between the petitioner
and the respondents, this Court is of the definite opinion that
Ext.P13 termination notice issued to the petitioner even
before communicating Ext.P12 revised estimates, is highly
arbitrary and cannot be justified on any grounds.
21. The petitioner, however, offered to complete the
work in his Ext.P14 letter addressed to the 1 st respondent on
condition that the respondents release certain amounts
unnecessarily retained from his bill amounts. In this regard,
it is to be noted that an amount of ₹25,000/- was deducted
from the bill amount due to the petitioner. The reason for
deduction given in the counter affidavit is that as per the
agreement condition, the selected contractor shall execute
WPC No.14903/2020
an agreement within a maximum period of 14 days from the
date of acceptance of the tender and fine at the rate of 1% of
contract amount subject to a minimum amount of ₹1,000/-
and a maximum of ₹25,000/- shall be levied if agreement is
not executed within 10 days after the notified period of 14
days.
22. In this regard, it has to be noted that a selection
notice/work order was issued to the petitioner as per Ext.P5
dated 14.01.2020. Paragraph 3 of Ext.P5 selection notice
required the petitioner to execute necessary agreements in
non-judicial stamp paper within 14 days of receipt of Ext.P5
letter. Paragraph 3 of Ext.P5 would show that the
respondents expected the petitioner to execute the
agreement within 14 days of issuance of selection
notice/work order. In fact, the petitioner had executed the
agreement on 20.11.2019 even before the issuance of
Ext.P5 selection notice/work order. In the circumstances, the
action of the respondents in deducting amounts from the
payment due to the petitioner for delayed execution of
WPC No.14903/2020
agreement, cannot also stand the scrutiny of law.
23. All the above facts would show that the petitioner
was not provided with sanctions and help which are expected
to be provided by the 1 st respondent. The work could not
have been completed without there being a revision in the
quantum of earth filling work. The petitioner had pointed out
this fact as early on 15.04.2020, as per Ext.P7. The
respondents communicated to the petitioner about revision of
the quantum of earth filling work only on 19.06.2020 as per
Ext.P12. Ext.P12 would show that the requirements made by
the petitioner was genuine. However, the respondents sat
on the requirement till 19.06.2020. Even before
communicating the revised estimates, the 2nd respondent
issued Ext.P13 termination order on 17.06.2020. Exts.P13
and P15 therefore have to be held as highly arbitrary and
illegal.
24. In the circumstances, Exts.P13 and P15 orders
passed by the respondents are set aside. The respondents
ought to have arrived at revised estimates in consultation
WPC No.14903/2020
with the petitioner. Ext.P12 revised estimate was drawn
unilaterally. Therefore, respondents 1 to 3 are directed to
reconsider Ext.P12 revised estimate in consultation with the
petitioner at the earliest and take decision afresh in that
manner. The petitioner shall be given reasonable time for
completion of work, if necessary after getting supplemental
agreements executed by the petitioner.
The writ petition is allowed as above.
Sd/-
N. NAGARESH, JUDGE
aks/28.12.2020
WPC No.14903/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTICE INVITING TENDER
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE GENERAL TENDER CONDITION
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE BOQ OBTAINED FROM THE
WEBSITE OF THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE AGREEMENT ENTERED INTO
BETWEEN THE PETITIONER AND THE 1ST
RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE SELECTION NOTICE/WORK
ORDER ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER.
EXHIBIT P6 TRUE COPY OF THE PROGRESS CHART PREPARED
BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE
PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER.
EXHIBIT P9 TRUE COPY OF THE REPLY GIVEN BY THE
PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE LETTER ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER.
EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER.
EXHIBIT P12 TRUE COPY OF THE REVISED ESTIMATE SENT BY
THE 3RD RESPONDENT TO THE PETITIONER.
WPC No.14903/2020
EXHIBIT P13 TRUE COPY OF THE TERMINATION NOTICE
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P14 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE TERMINATION ORDER ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P16 TRUE COPY OF THE E-MAIL COMMUNICATION
SENT BY THE PETITIONER TO THE 3RD
RESPONDENT.
