George Kuruvila vs State Of Kerala
2021 Latest Caselaw 14027 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                       &

                    THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

            WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943

                               WA NO. 824 OF 2021

AGAINST THE ORDER/JUDGMENT IN WP(C) 2017/2021 OF HIGH COURT OF KERALA, ERNAKULAM

APPELLANT/PETITIONER IN W.P.(C) 2017/2021:

             GEORGE KURUVILA
             AGED 61 YEARS
             S/O. UMMAN, SANKARAMANGALAM HOUSE, ERAVIPEROOR P. O.
             PATHANAMTHITTA DISTRICT.
             BY
             SRI.RANJITH THAMPAN(SR.)
             ADV V.M.KRISHNAKUMAR

RESPONDENTS/RESPONDENTS IN W.P.(C)2017/2021:

     1       STATE OF KERALA
             REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT,
             THIRUVANANTHAPURAM, PIN - 695 001.
     2       SUPERINTENDING ENGINEER
             PWD ROADS AND BRIDGES, SOUTH CIRCLE,
             THIRUVANANTHAPURAM - 695 033.
     3       EXECUTIVE ENGINEER
             PWD ROADS DIVISION, KOTTAYAM - 686 001.
     4       CHIEF ENGINEER
             PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM - 695 001.

             SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER FOR RESPONDENETS

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.No.824 OF 2021                          2




                                JUDGMENT

Dated this the 7th day of July 2021

SHAJI P.CHALY,J

Petitioner in the writ petition has filed this appeal, challenging the

judgment dated 8.4.2021, whereby the learned Single Judge directed the

respondents to permit the petitioner to complete the work, in case the

petitioner submits an undertaking before the Superintending Engineer,

Public Works Department, Roads and Bridges, South Circle,

Thiruvananthapuram - 2nd respondent, to complete the same before

31.5.2021. However, it was made clear that if petitioner does not furnish

any such undertaking, respondents would be free to proceed in accordance

with law. It is thus challenging the legality and correctness of the said

judgment, this appeal is preferred.

2. The subject issue relates to a contract awarded to the appellant by

the State Government. Brief material facts for the disposal of the writ

appeal are as follows; appellant is a Public Works Department A Class

Contractor and claims to be doing the contract work for the past more than

35 years. The Appellant participated in a tender Invited by the Public Works

Department (PWD) for improvement of the Kallungathara - Cheeppungal

Road Ch.1/70-4/250 and became the successful bidder. The work was

awarded to the appellant at 10% above the estimate rate. Agreement was

executed on 9.2.2012 and accordingly the appellant paid a sum of

Rs.8,24,000/- towards deposits and furnished bank guarantee for

Rs.8,33,050/-, evident from Exhibit P1 work order and Exhibit P2

agreement.

3. According to the appellant, as per Exhibit P3 letter dated 7.2.2018,

appellant has informed the Superintending Engineer that the work of

improvement of the road is to be undertaken through a paddy land, and

that it is marshy in nature. It was further stated that during the

construction of the first reach of the road, the road sank because of the

marshy nature of the land and therefore, requested the Superintending

Engineer to inspect the site and give proper direction to do foundation work

of the road. According to the appellant, though the appellant was issued

with the work order, the Executive Engineer, PWD Roads Division, Kottayam

- 3rd respondent, was convinced that if the road is constructed without soil

test, it will be an exercise detrimental to the department , and accordingly

issued Exhibit P4 letter to the Superintending Engineer, PWD, South Circle,

Thiruvananthapuram dated 13.6.2018 conveying that there is a possibility

of sinkage because of the marshy nature of the land and therefore to

conduct a soil test before construction of the road.

4. The case of the appellant is that because of lack of communication

from the department, the appellant could not even start the work or

complete the work within 6 months as is stipulated in the agreement. Other

contentions were also raised in the writ petition explaining the

circumstances disabling the appellant to proceed with the work.

5. Anyhow on 20.8.2018 appellant requested for extension of work and

also sought to take a decision regarding the construction of a foundation

and conduct of soil test as is suggested by the Executive Engineer in Exhibit

P4 letter. It appears without mentioning anything with respect to the soil

test or the foundation work, the Superintending Engineer, extended the

time for work up to 19.12.2018 and directed the appellant to sign the

contract. Having not been satisfied with the mere extension of work,

appellant had submitted Exhibit P7 representation, and in that he had

requested for return of the advance amount and the bank guarantee apart

from claiming damages. According to the appellant, even though he has

approached the office of the Minister concerned, there was no response.

6. From the record of proceedings, it is seen that there were no further

proceedings issued in that regard till 21.12.2020, on which date Exhibit P9

notice was issued by the Executive Engineer, PWD Roads Division,

Kottayam directing the appellant to start the construction within 10 days.

Thereupon, appellant preferred Exhibit P10 reply dated 1.1.2021 (wrongly

noted the date as 1.1.2020) wherein, it was mentioned that a revised

estimate has to be made and the construction is to be permitted on the

basis of revised estimate including the GST and if done so, appellant can

proceed with the work.

7. Therefore, the sum and substance of the contention was that unless

and until a revised estimate was prepared to carry on with the work, the

appellant was not interested in proceeding with the work. Which thus

means appellant was not prepared to complete the work on the rate agreed

as per Exhibit P1 work order dated 29.1.2018. It was thus seeking to quash

Exhibit P9 and to command the Superintending Engineer to refund the

security deposit and the bank guarantee, the writ petition was filed.

8. The learned Single Judge after taking into account the rival

submissions made and relying upon the counter affidavit filed by the

Executive Engineer that sufficient time for completing the work was given,

the writ petition was disposed of as is specified above. It was also pointed

out in the judgment that the issue with respect to the marshy land through

which the construction was to be carried out, was a matter ought to have

been taken note of by the appellant before submitting the tender. It was

also noted that the counter of the 3 rd respondent shows that the majority

of the extent of the road is not a marshy area and work could be carried out

without any difficulty.

9. The learned Single Judge had also found that the appellant never

approached the respondents to get the agreement extended and he has

never conveyed that he was willing to carry out the work even though it is

stated so in the writ petition. Therefore, taking into account the interest

expressed by the appellant to complete the work in the writ petition, the

direction was issued in the judgment to complete the work before

31.5.2021.

10. In fact a detailed counter affidavit was filed in the writ petition by

the Executive Engineer, in which it was stated that even though the work

site was handed over, appellant has not cared to complete the work within

the time period or to extend the period. It was also stated thereunder that

before submitting the bid, the appellant has visited the site and was

satisfied himself with the site condition for construction and logistics, and

smooth flow of workmen and materials including the permission to be

secured from the respective authorities for the purpose. Therefore, it was

contended by the State that the appellant cannot resile from the terms and

conditions of the contract and the reliefs sought for by the appellant cannot

be granted since the work could not be completed absolutely due to the

default on the part of the appellant.

11. The basic contention advanced by the appellant in the appeal is

that the appellant has submitted in the writ petition his willingness to

complete the work,on condition that a fresh estimate is prepared for the

work taking into account the soil and other conditions of the site in

question, but the learned Single Judge had ignored the said vital aspect

though it was recorded that the appellant has expressed his willingness to

complete the work.

12. We have heard Senior Adv.Sri.Ranjith Thampan appeared for the

appellant, assisted by Sri.V.M.Krishnakumar, Sri.Surin Geroge Ipe, learned

Senior Government Pleader, for the respondents and perused the pleadings

and materials on record.

13. It is an admitted fact that on the basis of the tender submitted by

the appellant, the work was awarded to the appellant as per Exhibit P1 work

order dated 29.1.2018. As per the terms and the conditions prescribed

under the work order, a security amount was deposited and a bank

guarantee was also extended and executed Exhibit P2 agreement. It is also

an admitted fact that the appellant did not proceed with the work assigning

the reason that the site in question is a marshy land and unless and until

the foundation work is carried out, there is every likelihood of the road

being damaged because of that. It is evident from Exhibit P3 that even

before issuance of the work order, appellant had addressed the

Superintending Engineer as per Exhibit P3 letter dated 7.2.2018 explaining

about the nature of the land and the likelihood of damage being caused to

the road unless the foundation is strengthened. In fact, the Executive

Engineer, consequent to the representation of the appellant, had addressed

the Superintending Engineer as per Exhibit P4 letter dated 13.6.2018

presumably after visiting the site and expressed his apprehension of the

damage of the road consequent to the marshy nature of the property and

suggested soil test.

14. Anyhow it is clear that the issue remained dormant after the Exhibit

P4 letter issued by the Executive Engineer till Exhibit P9 communication

dated 21.12.2020 was issued by the Executive Engineer directing the

appellant to start the work within 7 days. It is also evident from the records

that appellant had addressed the Superintending Engineer on 19.10.2018

also expressing his concern of not taking steps to consider the request

made by the appellant in regard to the soil test and proceeding with the

work or in the alternative, repayment of the security deposit and return of

the bank guarantee.

15. Therefore, assimilating the fact situation, we are of the considered

opinion that various issues were pointed out by the appellant either

immediately before or after Exhibit P1 work order was issued to the

appellant. The apprehension voiced by the appellant was very well

supported by the Executive Engineer as per Exhibit P4 communication dated

13.6.2018, which is narrated above. It is also curious to note that after

Exhibit P4 dated 13.6.2018, there was no communication till Exhibit P9

dated 21.12.2020 directing the appellant to start the work within 7 days

without addressing the issue raised by the appellant in regard to the

conditions of the work site.

16. It may be true the appellant has stated in the writ petition that he

is prepared to carry on with the work. But going by the record of

proceedings, it is clear that appellant has undertaken to continue with the

work on condition that the work was re-estimated with enhancement of

rates. Therefore, the findings rendered by the learned Single Judge that

since the appellant admitted to carry on with the work, and thus granting

time to the appellant to complete the work on or before 31.5.2021 without

addressing the issue of demand made by the appellant for re-estimate of

the work may not be a correct approach to the issue.

17. We are also of the view that the learned Single Judge, relied upon

the counter affidavit filed by the Assistant Engineer, PWD Works

Department, PWD Roads Division, Kottayam, and probably was of the

opinion that the appellant must have visited the site before the tender was

submitted. In the absence of Exhibit P4 letter addressed by the Executive

Engineer dated 13.6.2018 to the Superintending Engineer, the apprehension

of damage of the road consequent to the marshy nature of land and

proceeding without conducting soil test before starting construction of the

road, the findings of the learned Single Judge would have been correct. But

in our view the issue should have been considered and adjudicated, taking

into account the apprehension of the Executive Engineer itself and having

not done so, we feel it appropriate and proper that the judgment is set

aside and send it back for reconsideration in accordance with law, taking

into account the rival submissions made by the parties.

Accordingly, we set aside the judgment of the learned Single Judge

dated 8.4.2021 in the writ petition in question and remit the matter back for

consideration afresh after hearing the respective parties.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                 SHAJI P.CHALY

smv                                                  JUDGE