Kerala High Court
P.V.S.Constuctions vs The State Of Kerala on 25 March, 2021
WP(C).No.833 OF 2021(D)
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943
WP(C).No.833 OF 2021(D)
PETITIONER/S:
P.V.S.CONSTUCTIONS
REPRESENTED BY ITS MANAGING PARTNER, P.V.SIVADAS,
S/O.VASUDEVAN, AGED 49 YEARS, POOZHIKUNNUPARAMBIL,
MELE KANDIYOOR, JELLIPPARA P.O., PALAKKAD-678 581
BY ADVS.
SRI.T.C.SURESH MENON
SRI.P.S.APPU
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC
WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-
695 001
2 THE SUPERINTENDING ENGINEER,
PUBLIC WORKS DEPARTMENT BUILDINGS, OFFICE OF THE
SUPERINTENDING ENGINEER, PWD BUILDINGS, NORTH
CIRCLE, KOZHIKODE-673 001
3 THE ASSISTANT ENGINEER,
PUBLIC WORKS DEPARTMENT, BUILDING SECTION NO.II,
PALAKKAD-678 001
* 4 THE CHIEF ENGINEER,
PWD, THIRUVANANTHAPURAM
IS SUO MOTU IMPLEADED AS ADDITIONAL R4 AS PER ORDER
DATED 25.03.2021
OTHER PRESENT:
SMT.PRINCY XAVIER, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.833 OF 2021(D)
2
JUDGMENT
Dated this the 25th day of March 2021
The petitioner is an A Class contractor. Pursuant to Ext.P1
tender notification issued by the 2nd respondent inviting
tenders for construction of Laparoscopic Sterilization Operation
Theatre, Pay Ward and Parking facility, petitioner participated
in the same and quoted a sum of Rs.1,91,38,700/-. As per Ext.P2
letter the 2nd respondent informed the petitioner that the lowest
rate was quoted by him. However 2nd respondent informed the
petitioner that the rate quoted by him in respect of certain
items including item no.1.07 was higher and therefore petitioner
has to explain the reason for such higher rates. In answer to
the same petitioner as per Ext.P3 letter informed that he had
quoted only reasonable and prevailing rates. Thereafter Ext.P4
selection notice dated 30.07.2020 was issued to the petitioner,
based on which petitioner executed Ext.P7 agreement after
getting extension as per Ext.P6 order dated 27.08.2020 and on
payment of penalty of Rs.25,000/-. The complaint of the
petitioner is that subsequent to the execution of the agreement,
respondents effected deletion of one item covered by Ext.P8 at
serial No.1.07. Petitioner pointed out that the said deletion
was without any information to him and that he had quoted the
amount only after considering all the items covered by Ext.P8.
Immediately, thereupon the petitioner had submitted Ext.P9
WP(C).No.833 OF 2021(D)
letter pointing out that on deletion of item No.1.07 he will not
be able to execute the work and therefore he has to be permitted
to carry out the work including the work covered by item
No.1.07. The said request was not accepted and as per Ext.P10
letter dated 18.12.2020 petitioner was informed that the
Assistant Executive Engineer had reported that item No.1.07 was
not necessary and the materials on demolition of the said item
can be stored in a separate location. The petitioner was
directed to commence the work. The Writ Petition was filed at
that stage.
2. According to the respondents, the Engineer is to decide
which are the items to be included. It is stated that the
dispute raised by the petitioner is regarding item No.1.07 ie.
removing mortar from the bricks and clearing including stacking
with a lead of 50 meters, which was provided in the agreement
schedule for the purpose of recovering the reused dismantled
bricks and stacking the same for reuse. Item no.1.06 is for
demolishing brickwork manually/by mechanical means including
stacking of serviceable materials and disposal of unserviceable
materials within a lead of 50m as per the direction of the
Engineer in charge. It is stated that main item is 1.06 and the
item No.1.07 would become necessary only if the dismantled
material is good for reuse and viable depending upon the
logistics of handling the demolished material, quality of
demolished material etc. According to them, as per clause 30.6
WP(C).No.833 OF 2021(D)
of the bid document, the Engineer has to instruct the contractor
to vary quantities of the items or group of items and the
contractor shall carryout the variation as instructed by the
Engineer and the contractor cannot insist on the employer that
he would not carry out a particular item or that the particular
item is essential for completing the work. Clause 30.6 reads as
follows: .
"30.6 : Notwithstanding anything stated above in this
clause, the Engineer shall have the full power to instruct the
Contractor, in writing, during the execution of the Contract, to
vary the quantities of the items or group of items. The
Contractor shall carry out such variations and be bound by the
same conditions, as though the said variations occurred in the
Contract documents. However, the contract price shall be
adjusted at the rates and the prices provided for the original
quantities in the Contract."
Therefore, the respondents point out that the petitioner has to
carry out the work in accordance with the directions of the
Engineer irrespective of the bid submitted by him.
3. Eventhough petitioner has filed a reply affidavit
producing Ext.P11 dated 22.12.2015 pointing out that the very
contract itself is awarded to the petitioner by an incompetent
authority, it is seen that the said order relates to the
procedure for sanctioning tender excess, revised estimate, etc.
4. However, the petitioner's case is that the respondents
have committed fraud by insisting him to execute an agreement
even after clarifications were sought from him in Ext.P2
relating to the rate for item 1.07 and petitioner furnished his
reply in Ext.P3. The work is not yet commenced and the
WP(C).No.833 OF 2021(D)
petitioner is not willing to carryout the work in accordance
with the said agreement in the absence of item at 1.07.
5. In the aforesaid circumstances, I am of the view that
the matter has to be considered by an authority superior to the
Superintending Engineer. Therefore, there shall be a direction
to the Chief Engineer to look into the matter and to take a
decision after affording an opportunity of hearing to the
petitioner within a period of six weeks. Hearing can be held
through electronic mode.
The Writ Petition is disposed of accordingly.
Sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.833 OF 2021(D)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TENDER NOTIFICATION
NO.PKD/2018/2371 DATED 25.5.2020
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION
NO.DB6/BL/2018/2371, DATED 30.6.2020
EXHIBIT P3 TRUE COPY OF THE REPLY TO EXT.P2 SUBMITTED BY
THE PETITIONER DATED 15.7.2020
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION
NO.DB6/BL/2018/2371,DATED 30.7.2020
EXHIBIT P5 TRUE COPY OF THE REQUEST LETTER SENT BY THE
PETITIONER TO THE 2ND RESPONDENT , DATED
18.8.2020
EXHIBIT P6 TRUE COPY OF THE ORDER NO.DB6/BL/2018/2371
PASSED BY THE 2ND RESPONDENT, DATED 27.8.2020
EXHIBIT P7 TRUE COPY OF THE CONFIRMATION LETTER
NO.DB6/BL/2018/2371 SENT BY THE 2ND RESPONDENT,
DATED 18.9.2020
EXHIBIT P8 TRUE COPY OF THE ACCEPTED AGREEMENT DATED
18.9.2020
EXHIBIT P9 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER
DATED 21.10.2020
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 18.12.2020
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P11 TRUE COPY OF THE CIRCULAR NO.29874/E2/2015PWD
ISSUED BY THE 1ST RESPONDENT DT.22.12.2015
RESPONDENTS' EXHIBITS
ANNEXURE R2A TRUE COPY OF THE AGREEMENT SIGNED BY THE
PETITIONER
