Mahfoos M.D vs Greater Cochin Development ...
2021 Latest Caselaw 15129 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
 TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943
                      WP(C) NO. 14402 OF 2021
PETITIONER:

          MAHFOOS M.D,
          AGED 29 YEARS
          S/O M.D..ISMAIL, PWD CONTRACTOR, MUNDANGALAM
          HOUSE, BEVINJA, THEKKIL FERRY P.O.KASARAGOD-671
          121.

              BY ADV SIVAN MADATHIL



RESPONDENTS:

   1        GREATER COCHIN DEVELOPMENT AUTHORITY,
            REPRESENTED BY ITS SECRETARY, KADAVANTHARA,
            KOCHI-682 020.

   2        THE SUPERINTENDENTING ENGINEER,
            GREATER COCHIN DEVELOPMENT AUTHORITY,
            KADAVANTHARA, KOCHI-682 020.

            BY ADV SRI.VIPIN P.VARGHESE, SC, GCDA



OTHER PRESENT:

              sc, vipin varghese




       THIS    WRIT   PETITION    (CIVIL)   HAVING    COME    UP    FOR
ADMISSION      ON   20.07.2021,    THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.14402 of 2020
                                   ..2..




                   W.P.(C) No.14402 of 2021

                  --------------------------------------

                             JUDGMENT

Petitioner is a contractor. He was awarded the work

of renovation of a drain and footpath by the first respondent.

The work should have been completed by the petitioner on or

before 30.01.2020. On 26.11.2019, in terms of Ext.P5 order,

the first respondent has terminated the contract at the risk

and cost of the petitioner, mainly on the ground that he has

not shown satisfactory progress in the work. The petitioner

challenged Ext.P5 order in W.P.(C) No.33213 of 2019 before

this Court. While the said writ petition was pending, the first

respondent has decided to extend the period of completion of

the work stipulated in the agreement till 31.07.2020 and called

upon the petitioner to execute a supplementary agreement for

the same. The petitioner did not execute the supplementary

agreement. Instead, he sought further time for execution of

the work pointing out the difficulties due to the restrictions

imposed in connection with the pandemic, COVID-19. The first

respondent in the circumstances, terminated the contract with

the petitioner again, at the risk and cost of the petitioner on

19.08.2020, in terms of Ext.P12 order. Later, on 05.10.2020, W.P.(C) No.14402 of 2020 ..3..

W.P.(C) No.33213 of 2019 was disposed of by this Court as per

Ext.P6 judgment granting the petitioner one more month's

time to complete the remaining part of the work, on condition

that the petitioner will be liable to pay 3% of the probable

amount of contract towards fine and that he should renew the

performance guarantee furnished for due execution of the

work. The case set out by the petitioner in the writ petition is

that despite earnest efforts, he could not complete the work

within the time stipulated by this Court as per Ext.P6 judgment

on account of the non-availability of workers due to the

pandemic, COVID-19. It is alleged by the petitioner that while

he was taking earnest efforts to complete the work, the first

respondent has issued Ext.P14 notice inviting fresh tenders for

executing the remaining part of the work. The petitioner

challenges Ext.P14 notice in this proceedings on various

grounds. He also seeks appropriate directions to the first

respondent to permit him to complete the remaining part of

the work.

2. Heard the learned counsel for the petitioner as

also the learned Standing Counsel for the first respondent.

3. As noted, the work awarded to the petitioner is

one that should have been completed on or before 30.01.2020 W.P.(C) No.14402 of 2020 ..4..

and the contract was terminated by the first respondent at the

risk and cost of the petitioner as early as on 26.11.2019 in

terms of Ext.P5 order, on the ground that the petitioner has not

shown satisfactory progress in the work. The case set out by

the petitioner in W.P.(C) No.33213 of 2019 in which he has

challenged Ext.P5 order was that he could not achieve the

progress as contemplated, on account of non-availability of

materials and that since he has already made arrangements

for procurement of the requisite materials, he will be able to

complete the work on or before 30.01.2020 itself. It is seen

that it is in the light of the said case, this Court passed an

interim order in W.P.(C) No.33213 of 2019 on 13.12.2019

directing the petitioner to file an affidavit indicating the stage

upto which he will be able to carry out and complete the work

for the next two weeks, if permitted, and the petitioner has

filed the affidavit stating that he has already completed 30% of

the work and he will be able to complete another 30% of the

work within two weeks. Having regard to the said affidavit

filed by the petitioner and having taken note of the fact that

rearranging the work at that point of time may not be in the

interests of all concerned, this Court stayed Ext.P5 order till

31.12.2019 so as to enable the petitioner to achieve the

progress in the work as undertaken in the affidavit. The W.P.(C) No.14402 of 2020 ..5..

interim order passed by this Court on 17.12.2019 in W.P.(C)

No.33213 of 2019 reads thus:

"The petitioner is a contractor undertaking civil works. The challenge in the writ petition is against Ext.P5 order of the first respondent, in terms of which a civil work awarded to the petitioner has been terminated at his risk and costs on the ground mainly that the petitioner has not shown satisfactory progress in the work.

2. When the matter was taken up on 13.12.2019, the learned counsel for the petitioner submitted that satisfactory progress could not be shown in the work since the petitioner could not procure the materials required for the execution of the work due to reasons not attributable to him; that the petitioner has now made all arrangements for procurement of the materials and that he is now in a position to complete the work within the stipulated time namely, on or before 30.01.2020. In the light of the aforesaid submission, this Court passed an interim order on 13.12.2019, directing the petitioner to file an affidavit indicating the stage upto which he will be able to carry out and complete the work for the next two weeks, if permitted and the petitioner has filed an affidavit as directed by this Court on 13.12.2019, stating that he has already completed 30% of the work and he will be able to complete another 30% of the work within next two weeks.

3. The time limit prescribed for the work is one year and the same is due to expire on 30.01.2020. The materials on record indicate that only 30% of the work is over by now. If the petitioner is able to complete 60% of the work within two weeks as undertaken by him in the affidavit, I am of the view that he will be in a position to complete the work within the time stipulated. Insofar as the first respondent has fixed a period of one year for completion of the work in question, it is beyond dispute that the work will not be completed if the first respondent is permitted to rearrange the same.

4. In the aforesaid circumstances, according to W.P.(C) No.14402 of 2020 ..6..

me, the petitioner can be given a chance to continue the execution of the work without any rights for a period of two weeks, so that if he is able to achieve the progress, the petitioner can be permitted to complete the work, for which course, the first respondent has no objection.

5. In the said view of the matter, I deem it appropriate to stay Ext.P5 order for the period upto 31.12.2019 so as to enable the petitioner to achieve the progress in the work as undertaken in the affidavit. Ordered accordingly. It is made clear that the petitioner will not be entitled to claim any right on the strength of this order."

The petitioner does not dispute the fact that he has not

completed the work as undertook before this Court in the

affidavit filed in W.P.(C) No.33213 of 2019. It appears that

later, when the pandemic COVID-19 hit the State, the first

respondent has shown indulgence and decided to grant some

more time to the petitioner to complete the remaining part of

the work. As noted, the said offer was not acceptable to the

petitioner. Since the petitioner did not complete the work

within the extended time granted by this court in terms of the

interim order passed in W.P.(C) No.33213 of 2019 and within

the further time granted by the first respondent, the work was

terminated again by the first respondent at the risk and cost of

the petitioner on 19.08.2020, in terms of Ext.P12 order. As

indicated, it is thereafter that this Court disposed of W.P.(C)

No.33213 of 2019 granting the petitioner one more month's W.P.(C) No.14402 of 2020 ..7..

time to complete the remaining part of the work, taking the

view that in the light of the pandemic, COVID-19, the petitioner

could not have been blamed for having not completed the

work within the extended period. The operative portion of

Ext.P6 judgment reads thus:

"In the circumstances, the writ petition is disposed of directing the respondents to permit the petitioner to complete the remaining work by granting one month's time from the date of receipt of a copy of this judgment. The petitioner will be liable to pay 3% of the PAC amount as fine and should also renew performance guarantee. Such grant of time of one month would be subject to all the conditions stipulated in Ext.P7 minutes. To enable the petitioner to complete the work within the said period, Exts.P5 and P9 orders shall be kept in abeyance for a further period of one month. It is made clear that the petitioner will not be entitled to claim any right on the strength of this judgment, other than those specifically granted in this judgment."

Admittedly, the petitioner has not completed the work within

the extended time granted by this Court in terms of Ext.P6

judgment also. It appears that it is in the said circumstances

that the first respondent has initiated steps for rearranging the

work and issued Ext.P14 notice for execution of the remaining

part of the work. The case set out by the petitioner in the writ

petition is that he has completed 90% of the work and what is

remaining to be done is only 10%. It is also the case of the W.P.(C) No.14402 of 2020 ..8..

petitioner that if a reasonable time is granted, he will complete

the work.

4. The learned Standing Counsel for the first

respondent disputes the statement in the writ petition that

90% of the work has already been completed. It was pointed

out by the learned Standing Counsel that despite the

indulgence shown, the petitioner could complete only about

50% of the work. The learned Standing Counsel asserted that

steps have been taken to rearrange the work since the first

respondent is convinced that the petitioner will not be in a

position to complete the work in the near future.

5. The learned counsel for the petitioner refutes

the statement made by the learned Standing Counsel for the

first respondent that only 50% of the work has been

completed. Having regard to the totality of the facts and

circumstances of the case, I am of the view that it is

unnecessary to adjudicate the quantum of the work remaining

to be executed. The original term fixed for the execution of the

work is only one year. It is beyond dispute that the work which

should have been executed by the petitioner on or before

30.01.2020 has not been executed by the petitioner even after

the lapse of almost 18 months after 30.1.2020 despite the W.P.(C) No.14402 of 2020 ..9..

indulgence shown by this court not once, but twice. Works of

the instant nature cannot be delayed indefinitely, for the delay

would not only cause loss to the exchequer, but also would

result in irreparable hardship to the public. The discretionary

jurisdiction of this court cannot therefore be exercised in

favour of the petitioner in a case of this nature.

The writ petition, therefore, lacks merit and the

same is, accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR JUDGE

ds 21.07.2021 W.P.(C) No.14402 of 2020 ..10..

APPENDIX OF WP(C) 14402/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SELECTION NOTICE DATED 5.12.2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER

Exhibit P2 TRUE COPY OF THE AGREEMENT DATED 24.1.2019 EXECUTED BY THE PETITIONER WITH THE 2ND RESPONDENT

Exhibit P3 TRUE COPY OF THE LETTER DATED 11.10.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER

Exhibit P4 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 16.10.2019 TO THE 2ND RESPONDENT

Exhibit P5 TRUE COPY OF THE ORDER DATED 26.11.2019 OF THE 1ST RESPONDENT

Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 5.10.2020 IN WPC 33213/2019 OF THIS HONBLE COURT

Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 7.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED 27.2.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 21.3.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P10 TRUE COPY OF THE REPRESENTATION DATED 18.2.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P11 TRUE COPY OF THE REPRESENTATION DATED 7.10.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT W.P.(C) No.14402 of 2020 ..11..

Exhibit P12 TRUE COPY OF THE ORDER VIDE NO 9384/E-

1/2017/GCDA DATED 19.8.2020 ISSUED ON BEHALF OF THE 1ST RESPONDENT

Exhibit P13 TRUE COPY OF THE COMMUNICATION VIDE NO 9384/E-1/2017/GCDA DATED 12.10.2020 ISSUED ON BEHALF OF THE 1ST RESPONDENT TO THE PETITIONER

Exhibit P14 TRUE COPY OF THE E-TENDER NOTIFICATION DATED 12.7.2021 ISSUED BY THE 1ST RESPONDENT