Kerala High Court
T.T.Sunny vs The State Of Kerala Represented By on 25 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 25TH DAY OF JANUARY 2021/5TH MAGHA, 1942
WP(C).No.10192 OF 2017(Y)
PETITIONER:
T.T.SUNNY, AGED 73 YEARS, S/O. THOMAS,
P.W.D. CONTRACTOR, THANDAKKATTIL HOUSE,
MEENANGADI P.O., WAYANAD - 673 591.
BY ADV. SRI.GEORGE MECHERIL
RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY
ITS SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM - 695 001.
2 THE CHIEF ENGINEER,
PWD ROADS DIVISIONS BRIDGES,
THIRUVANANTHAPURAM - 695 001.
3 THE SUPERINTENDING ENGINEER,
P.W.D. ROADS AND BRIDGES,
CENTRAL CIRCLE, ALUVA - 683 001.
BY G.P. SMT. DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.01.2021,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.10192/2017
2
JUDGMENT
Dated this the 25th day of January, 2021
The petitioner executed Ext.P2 agreement for the
work 'Vision 2010-Construction of new bye pass road
starting from Thankalam Junction to Kozhippilly crossing
N.H.49 from ch.0/000 to 2/811'.
2. The petitioner states that he could not complete
the entire work due to reasons beyond his control and the
3rd respondent is liable to disburse balance bill amount in
respect of the work already completed by him.
3. From the pleadings it is evident that Ext.P2
agreement was executed on 01.01.2010 and the work had
to be completed within 18 months. `3,87,56,872/- was the
P.A.C. amount. It is stated that certain litigations arose
during the execution of the work and work had to be
stopped. The learned Government Pleader would submit
WP(C)No.10192/2017
that the petitioner stopped the work on 26.07.2010.
4. For the work done by the petitioner, a part bill
was raised and the respondents have released
`62,54,155.24 which has been received by the petitioner.
The petitioner's case is that further amounts are due to him.
The petitioner submitted Ext.P12 representation requesting
to settle his bills and not to terminate contract till then. In
Ext.P12, the petitioner also expressed his readiness to
continue and complete the work.
5. From Ext.P7, it can be seen that a review
meeting was convened in respect of the work by the
Superintending Engineer, Aluva R & B and it was decided
to terminate the contract without invoking the 'risk and cost'
clause against the petitioner. It is also submitted by the
learned Government Pleader that the work has already
been re-tendered after issuing Ext.P15 Notice Inviting
Tender.
WP(C)No.10192/2017
6. The learned counsel for the petitioner would
argue that further amounts are due to him and if re-
tendered work is commenced without taking
measurements, the petitioner will be put to hardship and
loss. The learned Government Pleader on the other hand
would state that for the work completed by the petitioner,
amount of `62,54,155.24 has been paid to the petitioner
and no more amounts are due to him.
7. The dispute therefore is on a question of fact.
Whether the petitioner has completed the work for cost
exceeding `62,54,155.24 cannot be decided in this writ
petition under Article 226 of the Constitution of India.
In the circumstances, the writ petition is disposed of
permitting the petitioner to approach the 1st respondent with
a detailed representation. If the 1 st respondent receives
such a representation within a period of one month, the 1 st
respondent shall consider the claims of the petitioner
including his claim for refund of security deposit/bank
WP(C)No.10192/2017
guarantee/performance guarantee and take a decision
thereon within a further period of three months.
Sd/-
N. NAGARESH
JUDGE
ncd
WP(C)No.10192/2017
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SELECATION NOTICE WAS
ISSUED TO THE PETITIONER ON 09.12.2009
BY THE 3RD RESPONDENT.
EXHIBIT P2 A TRUE COY OF THE ORDER NO. D.M.K-
3897/02 DATED 01.1.2010 OF THE 3RD
RESPONDENT.`
EXHIBIT P3 A TRUE COPY OF THE LETTER DATED
30.8.2010 ADDRESSED TO THE 3RD
RESPONDENT AND COPY OF THE EXECUTIVE
ENGINEER, ASSISTANT EXECUTIVE ENGINEER
AND THE ASSISTANT ENGINEER.
EXHIBIT P4 A TRUE COPY OF REQUEST DATED 15.1.2011
SUBMITTED BY THE PETITIONER BEFORE THE
3RD RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE REQUEST DATED
25.9.2012 SUBMITTED BYT HE PETITIONER
BEFORE THE 3RD RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION NO.
CER&B/MVA/BW/8813/2009 DATED 31.10.2012
OF THE CHIEF ENGINEER TO 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE MINUTES DATED 23.9.2010
REFERRED TO IN EXT.P6.
EXHIBIT P8 A TRUE COPY OF THE LAST REPRESENTATION
DATED 11.1.2017 SUBMITTED TO THE
PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE INTERIM ORDER DATED
07.7.2014 IN WPC NO. 9929/2014 OF THIS
HON'BLE COURT.
EXHIBIT P10 A TRUE COPY OF THE G.O. (RT) NO
1243/2019/ PWD DT.26.10.2019
EXHIBIT P11 A TRUE COPY OF THE LETTER NUMBER
WP(C)No.10192/2017
A9/1136/2007 DT.19.12.2019
EXHIBIT P12 A TRUE COPY OF THE PETITION SUBMITTED TO
THE GOVERNMENT
EXHIBIT P13 A TRUE COPY OF THE COMMUNICATION DATED
1.10.2020 OF THE THIRD RESPONDENT
EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED
13/10/2020 ISSUED BY THE THIRD
RESPONDENT.
RESPONDENTS' EXHIBITS
EXHIBIT R3(a) REQUISITION GIVEN TO LAND ACQUISITION
OFFICER
EXHIBIT R3(b) TRUE COPY OF THE LETTER DATED
15.01.2011.
EXHIBIT R3(c) TRUE COPY OF THE LETTER DATED
25.03.2011.
EXHIBIT R3(d) TRUE COPY OF THE REPORT SUBMITTED BY
THE 4TH RESPONDENT TO 3RD RESPONDENT
EXHIBIT R3(e) TRUE COPY OF THE LETTER DATED
10.06.2011.
EXHIBIT R3(f) TRUE COPY OF THE LETTER DATED
30.01.2012.
EXHIBIT R3(g) TRUE COPY OF THE LETTER DATED
23.02.2012.
EXHIBIT R3(h) TRUE COPY OF THE LETTER DATED
19.10.2012.
EXHIBIT R3(i) TRUE COPY OF THE LETTER DATED 04.06.20.
