K.M.Salim vs State Of Kerala Represented By
2021 Latest Caselaw 9227 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

 FRIDAY, THE 19TH DAY OF MARCH 2021/28TH PHALGUNA, 1942

                  WP(C).No.10921 OF 2017(M)


PETITIONER:

              K.M.SALIM, AGED 60 YEARS,
              S/O. LATE MARAKKAR, ERUMAMUNDA P.O.,
              CHUNGANTHARA, NILAMBUR

              BY ADVS.
              SRI.BABU KARUKAPADATH
              SMT.AMRIN FATHIMA
              SRI.K.M.FAISAL (KALAMASSERY)
              SRI.MITHUN BABY JOHN
              SRI.J.RAMKUMAR
              SMT.M.A.VAHEEDA BABU
              SHRI.P.U.VINOD KUMAR

RESPONDENTS:

     1        STATE OF KERALA REPRESENTED BY
              ITS SECRETARY, PUBLIC WORKS DEPARTMENT,
              GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM 695 001.

     2        CHIEF ENGINEER, P.W.D. ROADS AND BRIDGES,
              NEAR MUSEUM, THIRUVANANTHAPURAM-695 001.

     3        THE SUPERINTENDING ENGINEER,
              ROADS AND BRIDGES, P.W.D., NORTH CIRCLE,
              KOZHIKODE-673 001.

     4        ASSISTANT EXECUTIVE ENGINEER,
              P.W.D. ROADS DIVISION, MANJERI 676 121.

     5        THE EXECUTIVE ENGINEER,
              ROADS DIVISION, MANJERI 676 121.
 W.P.(C) No.10921/2017
                             :2:


      6      THE SECRETARY, DEPARTMENT OF FINANCE,
             GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.

ADDL. 7      THE CHIEF TECHNICAL EXAMINER,
             FINANCE (INSPECTION WING -TECHNICAL)
             DEPARTMENT, SBTEU BUILDING, 3RD FLOOR,
             PULIMOODU, THIRUVANANTHAPURAM-695 001.

             IS IMPLEADED AS ADDITIONAL R7 AS PER ORDER
             DATED 03.02.2021 IN I.A.1/2021 IN WPC
             10921/2017.

             BY GOVERNMENT PLEADER SMT.RASHMI K.M.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 19-03-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 W.P.(C) No.10921/2017
                                       :3:




                           N. NAGARESH, J.

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                      W.P.(C) No.10921 of 2017

          `````````````````````````````````````````````````````````````
               Dated this the 19th day of March, 2021

                            JUDGMENT

~~~~~~~~~

The petitioner, who is a Government Contractor,

seeks to direct the respondents to pay the whole balance

amount due to the petitioner to the tune of `27,41,030/-

covered by Bill No.595 dated 27.12.2015 in respect of the

contract work "the construction of Chethukadavu Bridge

across Kalikavu River in Malappuram District", completed

and executed as per Ext.P2 agreement, by sanctioning the

revised estimate, along with interest at a reasonable rate

thereon, within such time as this Court deems just and

proper. The petitioner further seeks to direct the

respondents not to recover the DLR amount given to the

petitioner, which was approved by the 2 nd respondent as per

Ext.P3.

W.P.(C) No.10921/2017

2. The petitioner states that in response to a

notification, the petitioner was awarded the work of the

construction of Chethukadavu bridge across Kalikavu River

in Malappuram District. The probable amount of contract

was ₹3,35,55,123/-. The petitioner quoted 13% below the

PAC. The petitioner agreed to complete the work for

`2,91,92,957/-. The petitioner entered into Ext.P2 Agreement

with the respondents on 01.05.2012. The petitioner had to

complete the work within 18 months. The site was handed

over to the petitioner on 15.05.2012.

3. The petitioner would submit that during the

inception of well for the construction of the Bridge, existence

of massive rock boulders were found beneath the water.

These rock boulders could not have been removed by

explosion using gunpowder. The massive rock boulders had

to be chiselled and removed by skilled labourers who are

experienced to work under water. In view of the urgency and

importance of the work, the petitioner engaged skilled

labourers, providing them with oxygen masks for doing the W.P.(C) No.10921/2017

under-water work. The work was done by such skilled

workers under the direct supervision of the Departmental

Authorities. The wages for the skilled workers for doing this

particular work had to be paid by the Department. However,

the petitioner paid them initially. These amounts should be

paid back to the petitioner as hand receipts.

4. As the massive rock formation was not

contemplated in the work, the Department was bound to

prepare a revised estimate, with the required additional

quantity of work. The Chief Engineer approved the additional

work of boulder removal and made part payment also. The

skilled workers had to be paid `69,08,919/-. The said

amount was approved by the Chief Engineer as per Ext.P3.

After removing the massive boulders, the construction was

carried out and the bridge was handed over on 17.09.2014.

5. However, the Department did not honour the final

bill of `27,41,030/-, as the revised estimate was not

sanctioned by the 1st and 6th respondents. The petitioner

submitted repeated representations for sanctioning this W.P.(C) No.10921/2017

amount. By Ext.P8, the 2 nd respondent-Chief Engineer

recommended to revise the estimate so as to include the

additional work. To the shock and surprise of the petitioner,

Ext.P9 order was issued by the 1st respondent rejecting the

recommendation for sanction of the revised estimate.

6. The counsel for the petitioner argued that during

the execution of the work, unexpected issues arose and

huge rock boulder formations had to be removed from the

well foundation. This work was not included in the estimate.

This work had to be carried out engaging highly skilled

workers. The work was done under the supervision of the

officials of the Department. The skilled workers had to be

paid an amount of `69,08,919/-. This amount was approved

by the Chief Engineer as per Ext.P3 and, in fact, part

payments were made also. The petitioner has completed the

construction of the bridge and the public are using the

bridge. There is no complaint whatsoever regarding the

quality of construction made by the petitioner. W.P.(C) No.10921/2017

7. After getting the work done, the respondents

cannot now contend that they will not revise the estimates.

There is no dispute that huge rock boulders had to be

removed. The work was carried out in the presence of the

Departmental Officials. They do not have any doubt

regarding the work carried out by the petitioner. Therefore,

the 1st respondent cannot now take an arbitrary stand that

the amount cannot be paid.

8. The 1st respondent filed a counter affidavit. The 1 st

respondent admitted the existence of hard rock strata. The

1st respondent stated that a detailed estimate of the work

was prepared in respect of this additional work adopting

PWD standard data. The rate of cutting down obstacles of

size above 40 dm3, wooden blocks of size above 100 dm3

and sinking wells in rocks, have not been included in item

Nos.701 to 706 of well sinking. The 1st respondent stated

that breaking down of obstacles of size more than 40 dm3

and the sinking wells through rock, if any, encountered

during well sinking operation, is to be done by the W.P.(C) No.10921/2017

Department separately by means of some other

arrangements simultaneously together with well sinking

operation.

9. The 1st respondent examined the proposals of the

2nd respondent. The 1st respondent noted that the size of

boulders is not specified in the soil log. There is no evidence

to establish that boulders removed were more than 40 dm3

size. The payment was made based on DLR without

assessing the quantity of boulders removed and without

arriving rate analysis of the above item, which is not in order.

The Chief Engineer was directed to resubmit the revised

estimate. Exts.P9 and P10 are not final orders or

instructions.

10. The 1st respondent stated that the Government

received a revised estimate proposal from the 2 nd

respondent. And no amount found to be eligible to the

petitioner, would be withheld. The amount eligible to the

petitioner will be sanctioned after examination of revised

estimate in consultation with Finance Department of the W.P.(C) No.10921/2017

Government of Kerala.

11. The 1st respondent subsequently filed an

additional counter affidavit dated 24.08.2019. In the

additional counter affidavit, it has been stated that the

Finance Department of Government of Kerala examined the

proposal for additional work and opined that the details

submitted by the Chief Engineer pertaining to the admissible

amount for breaking the boulders comes to `1,09,296/- only

as against the revised estimate provision of `69,08,919/-.

Though the Chief Engineer again submitted the same

proposal, the proposal did not mention the quantum of 40

dm3 boulders broken and the split up details of rate analysis

to substantiate the claim made on the said head. Therefore,

it was once again requested to provide revised estimate. The

revised estimate was accordingly submitted and it is under

the examination by the Government. The 1 st respondent

reiterated that amount will be sanctioned to the petitioner

soon.

W.P.(C) No.10921/2017

12. The additional 7th respondent, who is the Chief

Technical Examiner, Finance (Inspection Wing - Technical)

Department has filed a counter affidavit dated 24.02.2021.

The Chief Technical Examiner in his counter affidavit stated

that:

1. The size of boulders is not specified in the soil log. Payment was seen made based on Daily Labour Report without assessing the quantity of boulders removed.

2. The revised estimate ought to have been prepared much earlier. Revised estimate should not be kept waiting till the work is completed. The Chief Engineer has not submitted the revised estimate to the Government during the course of execution of work. Revised estimate was forwarded only after completion of the work.

3. Field Officers could not quantify the boulders claimed to be broken and produce the materials at site or its disposal details for verification by the officials from the Technical Wing.

4. In this case, records of daily labourers engaged by the contractor for the particular item is available with PWD. The DLR submitted by the Chief Engineer, total man-days taken for cutting and breaking boulders and wooden logs more than 40 dm3 size comes to 216 numbers only. Therefore, admissible cost for cutting and breaking boulders as per the documents submitted by PWD would come to `1,09,296/- at the rate of `506/- each for 216 numbers of man-days.

W.P.(C) No.10921/2017

13. I have heard the counsel on either side.

14. The dispute involved is in a narrow compass.

While executing the work of bridge construction, it was noted

that there were rock boulder formations beneath the water,

which ought to have been removed for sinking well. The

agreement entered into between the petitioner and the

respondents did not contemplate this situation. The item of

removing boulders above 40 dm3 size was not covered in

the scope of agreement. It is the firm statement of the Chief

Engineer, as contained in Ext.P3, that actual expenditure for

cutting and breaking into small pieces of boulders of more

than 40 dm3 size during sinking and seating of wells, would

come to `69,08,919/-.

15. The case of the 7th respondent is that there was

no material to verify the quantity of rock boulders removed.

The size of boulders is not specified in the soil log. The Field

Officers from the Technical Wing were not in a position to

quantify the boulders claimed to be broken and to produce

the materials at the site or its disposal details for verification. W.P.(C) No.10921/2017

This objection, it seems, is without appreciating the issue at

hand.

16. In Ext.P11, the Assistant Engineer has specifically

stated that to remove the huge rock boulders, the well

sinkers/divers had to go down up to 12 metres in the river

wearing oxygen mask helmets. Compressors, chisels and

hammers had to be used by 5 to 6 sinkers/divers at a time.

To assist them Serang, Man mazdoors, Compressor

Operators, Cleaners and Blacksmiths had to be engaged as

standbys.

17. The size of rock boulders could not have been

assessed in advance. According to the Executive Engineer,

no equipment or technology is presently available for

determining the exact size and quantity of an invisible object

laying beneath the earth. Though the presence of an object

coming at the path of a core bore can be noticed, the size

and quantity of the object cannot be assessed in core boring.

According to the Engineers, who were in charge of the work,

it was practically unviable to collect the crushed boulder W.P.(C) No.10921/2017

pieces from the river bed and bring them ashore to assess

the quantum of rock boulders.

18. As the size of massive rock boulders could not

have been assessed in advance, the work also could not

have been estimated in advance. Every day, Overseers

used to prepare DLR and submit to higher officers. When

the work was carried out in the presence of departmental

officials and in such difficult situation, it would be harsh and

unrealistic on the part of the 7th respondent to submit that

their field officers could not quantify the boulders broken as

the broken boulders were not produced at site for verification

by the official from the Technical Wing.

19. The further contention of the respondents that

revised estimates ought to have been prepared in advance,

is also seen ignoring the stark reality. It is an admitted

position that the size and the quantity of rock boulders

beneath the river bed to be removed, could not have been

quantified in advance. For the very same reason,

preparation of revised estimate in advance was impractical. W.P.(C) No.10921/2017

At any rate, the petitioner cannot be found fault with for not

forwarding revised estimate in advance.

20. In Ext.P11, the Assistant Executive Engineer and

Executive Engineer have informed that 5 to 6 sinkers have

worked using compressor, chisel and hammer taking

considerable time to remove the boulders. These workers

were highly skilled and were using oxygen supply masks

during the work under water. To facilitate the work and also

for safety reasons, Serang, Man mazdoor, Compressor

Operator, Cleaner and Blacksmiths were engaged every day.

The Executive Engineer in Ext.P6 has stated that the said

work took nearly six months.

21. There is a further anomaly in the stand taken by

the respondents. The Assistant Executive Engineer and the

Executive Engineer would submit that 5 to 6 sinkers/divers

did work for nearly six months to remove the crop boulder

formations. Supporting staff like Serang, Man mazdoors,

Blacksmiths and Compressor Operators had to be deployed

when sinkers and divers were doing the work at the river W.P.(C) No.10921/2017

bed. These deployments were not provided for in the

agreement.

22. The 7th respondent has stated that the total man-

days taken for cutting and breaking boulders more than 40

dm3 size comes to 216 numbers only. Therefore, the

admissible cost for cutting and breaking boulders more than

40 dm3 size as per the document submitted by PWD at the

estimate rate based on PWD revised SoR 2010 comes to

`1,09,296/- (@ `460/- + 10% contractors profit = @ `506/-

per each for 216 numbers man-days). The figure of 216

man-days has been arrived at on the basis of the DLR

submitted by the Chief Engineer.

23. Obviously, there appears to be some error in

calculating man-days. When 5 to 6 sinkers/divers have

worked from beneath the river and when equal number of

specialised staff had to be deployed ashore during the work,

and when the rock boulder removal work lasted for more

than 200 days, the total man-days cannot be 216. Similarly,

the wage payable for such skilled workers is taken as `506/- W.P.(C) No.10921/2017

per worker per day. The daily wage payable even to

unskilled labourer in Kerala in the open market is much

higher. Assuming that the PWD Manual prescribes a lower

rate of `506/- per worker per day, there is no explanation as

to why the said rate should be made applicable to highly

skilled workers doing hazardous job beneath the waters and

at the river bed. These important aspects are not seen taken

note of.

24. In the afore circumstances of the case, this Court

is of the considered opinion that the respondents will have to

reconsider the entire issue afresh taking note of the peculiar

circumstances under which the bridge was constructed,

deploying highly skilled workers to execute the work of

removal of rock boulders formations in the river bed. The

omissions, if any, on the part of the officers of the

respondents in making technical compliances in the matter of

preparation of revised estimates etc., cannot be a reason to

deny dues to the petitioner, if he is otherwise eligible for the

same.

W.P.(C) No.10921/2017

In the circumstances of the case, the writ petition

is disposed of directing the 1 st respondent to reconsider the

revised estimate proposal submitted by the Chief Engineer in

the light of the observations made hereinabove and take a

decision afresh after giving an opportunity of hearing to the

petitioner and after consulting the officers who were in

charge of the work, if necessary. Fresh orders in this regard

shall be passed within a period of four months. To enable the

1st respondent to take a reasoned decision afresh, Ext.P9 is

set aside.

Sd/-

N. NAGARESH, JUDGE aks/15.03.2021 W.P.(C) No.10921/2017

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 11.05.2012 OF THE 3RD RESPONDENT PERMITTINGTHE PETITIONER TO ADJUST THE AMOUNT DUE TO THE CONTRACTOR UNDER COMPLETED WORKS TOWARDS SECURITY DEPOSIT OF THE NEW WORK

EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF THE AGREEMENT NO.SE(K) 31/2012-13 DATED 01.05.2012 EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT

EXHIBIT P3 A TRUE COPY OF THE ORDER OF APPROVAL OF DAILY LABOUR REPORT TO THE TUNE OF RS.

69,08,919 DATED 27.06.2014 OF THE 2ND RESPONDENT CHIEF ENGINEER

EXHIBITP4 A TRUE COPYOF THE FORWARDING LETTER DATED 30.01.2015 OF THE 3RD RESPONDENT ALONG WITH THE COMPLETION CERTIFICATE, SEND TO THE 5TH RESPONDENT

EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 01.06.2015 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT

EXHIBIT P6 A TRUE COPY OF THE REQUEST DATED 14.03.2016 SUBMITTE DBY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT

EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DATED 25.07.2016SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT

EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATED 25.07.2016 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT

EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 15.02.2016 OF THE 1ST RESPONDENT REJECTING THE RECOMMENDATION FOR SANCTION OF THE REVISED ESTIMATE.

W.P.(C) No.10921/2017

EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 02.02.2017 OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT

EXHIBIT P11 A TRUE COPY OF THE REPORT DATED 9/5/2017 SUBMITTED BY THE ASSISTANT ENGINEER BEFORE THE 4TH RESPONDENT

EXHIBIT P12 A TRUE COPY OF THE REPORT DATED 9/1/2020 SUBMITTED BY THE ASSISTANT ENGINEER TO THE 4TH RESPONDENT

EXHIBIT P13 A TRUE COPY OF THE REPORT DATED 10/1/2020 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT BASED ON P12

EXHIBIT P14 A TRUE COPY OF THE REPORT DATED 17/2/2020 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT

EXHIBIT P15 A TRUE COPY OF THE LETTER DATED 2/6/2020 OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT

EXHIBIT P16 A TRUE COPY OF THE REPORT DATED 5/6/2020 SUBMITTED BEFORE THE 2ND RESPONDENT

EXHIBIT P17 A TRUE COPY OF THE REPORT DATED 8/6/2020 SUBMITTED BY THE 3RD RESPONDENT 2ND RESPONDENT

RESPONDENTS' EXHIBITS

ANNEXURE R1(a) TRUE COPY OF THE ORDER DATED 06.01.2021.

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