Kerala High Court
Jayaprakashan P. vs State Of Kerala on 23 March, 2021
W.P(c).No.3011/2021-B 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943
WP(C).No.3011 OF 2021(B)
PETITIONER:
JAYAPRAKASHAN P., AGED 47 YEARS
S/O.P.KELU MASTER, PONNARATH CONSTRUCTIONS,
P.K.HOUSE, KUTTIYATTOOR.P.O, MAYYIL, KANNUR-670602.
BY ADV. SMT.TESSY JOSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
SECRETARIAT,THIRUVANANTHAPURAM-695001.
2 THE SUPERINTENDING ENGINEER,
MINOR IRRIGATION CIRCLE,WEST HILL,CHUNGAM,
KAVERI HOUSE,KOZHIKODE-673005.
3 THE EXECUTIVE ENGINEER,
MINOR IRRIGATION DIVISION,SULTHAN BATHERI,
WAYANAD-673592.
4 THE DISTRICT COLLECTOR,
COLLECTORATE,WAYANAD-673121.
5 THE ASSISTANT ENGINEER,
MINOR IRRIGATION SECTION, PANAMARAM-670721.
6 ASSISTANT EXECUTIVE ENGINEER,
MANANTHAVADY, WAYANAD, MINOR IRRIGATION SUB
DIVISION, MANANTHAVADY, WAYANAD-670645.
7 THE CHIEF GENERAL MANAGER,
NABARD, KERALA REGIONAL OFFICE,
PONNAN ROAD, THIRUVANANTHAPURAM-695001.
8 THE CHIEF ENGINEER,
IRRIGATION AND ADMINISTRATION, PUBLIC OFFICE
BUILDING,THIRUVANANTHAPURAM-695033.
R1-6, R8 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.03.2021, THE COURT ON 23.03.2021 DAY DELIVERED THE FOLLOWING:
W.P(c).No.3011/2021-B 2
P.V.ASHA, J.
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W.P(c) No.3011 of 2021-B
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Dated this the 23rd day of March, 2021
JUDGMENT
Petitioner is an A class Government Contractor, who was awarded the work
'NABARD RIDF XX-construction of neervaram kalluvayal L1 scheme in
Panamaram Panchayat Wayanad district'. Termination of contract as per Ext.P8
order is under challenge in this Writ Petition.
2. The petitioner executed Ext.P1 agreement on 4.3.2016. It is stated
that on account of the protest of the owners of landed property and the nearby
residents, the work got delayed. On the request of farmers the 6 th respondent
requested for a revised estimate as per Ext.P2 letter addressed to the 3 rd
respondent. The revised estimate was sanctioned only on 18.4.2018, after a period
of 20 months. It is stated that in August, 2018, the area was affected with heavy
flood and the work had to be stopped. Except the pipeline work, the petitioner
could proceed with the work of transformer yard, other cable works and concrete
works after the rain subsided. In the meanwhile, extension of time was granted till
3.6.2019 without imposing any fine. Even though the petitioner submitted Ext.P3
application for extension of time for the period from 3.6.19 to 31.3.2021, there was
no response. The work relating to laying of 1.50 km PVC pipe and 350mm
diameter D1 pipe was remaining. According to the petitioner, pipe manufacturing
factory remained closed on account of Covid 19 pandemic and there was shortage
of materials. The petitioner thereupon submitted Ext.P4 representation again
requesting for time for the period from 3.6.19 to 31.3.2021. It was followed by
Ext.P5 representation dt.8.1.2021. The petitioner further states that a meeting was
convened by the District Collector on 13.1.2021 when it was decided to fix the
time for completion of the work as 31.3.2021 and that the Department would co-
operate with the extension of time in case the pipes were brought to the site before
20.2.2021. The petitioner states that the said decision was without ascertaining the
factual circumstances because the pipes were to be obtained from Gujarat where
the factories were remaining closed due to the scarcity of workers on account of
the pandemic. Apart from that, in the absence of a valid agreement, the petitioner
would not be able to take the risk of purchasing pipes spending such huge amount
of about Rs.70 lakhs. Thereupon, the petitioner submitted Ext.P7 representation
on 15.1.2021 before the 2nd respondent. Ext.P8 order of termination was passed
thereupon on 25.01.2021, without considering her request.
3. The 2nd respondent has filed a statement. It is stated that the site was
handed over to the contractor on 4.3.2016 fixing the date of completion as
3.3.2017; time was extended 5 times upto 3.6.2019 at the request of the contractor
without imposing fine; the contractor did not turn up to complete the work despite
several attempts from the part of the departmental officers; notices were given to
contractor on 24.08.2020, 7.9.2020 and 6.11.2020 directing to resume the work; on
receipt of the notice dt.6.11.2020, the petitioner attended the office and assured to
complete the work before 28.2.2021; as per Ext.R2(a) letter the petitioner was
informed that the NABARD XX tranche would be closed by 31.3.2021 and the
contract would be terminated at his risk and cost, in the event of non-completion of
the work; thereafter a meeting was held in the chamber of District Collector,
Wayanad with the petitioner, NABARD officials and officials from the
department; in that meeting it was unanimously decided that the work could be
finished without any further extension; the petitioner instead of resuming the work
submitted Ext.P7 letter on 15.1.2021 demanding further time and rate escalation;
after consultation with the District Collector, who authorised the agreement
authority to take a decision, the Department was forced to terminate the work at
the risk and cost of the petitioner; petitioner has completed only 28% of the work;
the rest of the work has to be rearranged through another agency and the loss
sustained by the Government is to be recovered from the petitioner; extension of
time was granted 5 times considering the request of the petitioner till 3.6.2019;
sanctioning of revised estimate on 18.04.2018 did not stand in the way of carrying
out the work of laying of DI pipes, since the length of DI pipes in the sanctioned
revised estimate is less than that of the original agreement; departmental officials
had not directed the petitioner to stop the work pending revision; on the other
hand, the petitioner failed to arrange men and machinery to complete the work in
time. Pointing out the conditions in Annexure R2(b) conditions of contract, it is
stated that there is no provision for escalation of rates or extension of time beyond
what is provided in the agreement. There was no response from the petitioner's
side to resume or complete the work despite reciept of notices. Even after the
meeting convened on 13.1.2021, in which the petitioner had participated, he did
not turn up to resume the work. It is stated that the petitioner's request for further
time extension was not forwarded to higher authorities as the petitioner did not
respond to the repeated notices issued to him. The demand for price escalation of
pipe items and also for the extension of time was contrary to the decision taken in
the meeting and the conditions of contract. It is stated that it is the result of
inaction on the part of the petitioner in arranging and completing the work within
the agreed period. The petitioner was responsible for executing the works of
pumphouse, culvert, concrete canals and D1 and PVC pipeline works, out of which
he had completed the works only to the tune of Rs.64,26,127/- as against the
revised estimate of Rs.3,15,75,121/- which comes to 28% of the work financially.
It is stated that even after the site conditions became favourable, the petitioner had
not turned up to complete the work. It is stated that after 2018 flood, he had
executed only the work of transformer yard and duct cable during the period of
December, 2018 to 30.1.2019, cost of which was only Rs.1.5 lakhs. It is stated
that even though extension of time upto 03.06.2019 was granted from the offices
of the respondent on 27.11.2019, the petitioner had attended their office only on
10.12.2020, after one year, for executing supplementary agreement, that too, after
several reminders. It is submitted that several works using DI pipes are going on
and therefore non availability of pipes is not at all a genuine reason. It is further
stated that the petitioner had furnished a photocopy of the order dated 15.09.2020
claiming that advance payment was made for pipe, which was found not genuine.
It is stated that the NABARD XX tranche will expire on 31.3.2021 and therefore
the work has to be completed before that date.
4. The petitioner has filed a reply affidavit producing various
communications in Exts.P10 to P12 and stating that request for extension from
03.06.2019 to 31.03.2020 was submitted on 02.08.2019 and there was no response
even after subsequent requests. It is stated that the notices Exts.P10 and P11
notices dated 24.08.2020 and 07.09.2020 respectively were issued to him directing
him to resume work when extension application of the petitioner was pending. It
is stated that the petitioner could not have resumed the work in the absence of a
valid agreement. Though he had submitted Ext.P4 representation for extension of
time till 31.3.2021 in response to Ext.P12 communication, the respondents did not
issue any orders for extension and therefore there was no question of resuming the
work in the absence of a valid agreement. It is stated that though he had pointed
out the same in the meeting, his submission was not considered. It is also stated
that he made enquiries as to the cost of pipes immediately on the very next day of
the meeting held on 30.1.2021 when he came to know that there was 40%
escalation in price. Thereupon he submitted Ext.P7 representation on 15.1.2021
stating that he would not be able to resume the work in the absence of any
extension from 03.06.2019 as a sum of Rs.70 lakhs is necessary towards the cost
of the pipes. The petitioner stated that he had completed 56% of the work, relying
on Ext.P13 progress report issued by the Minor Irrigation Sub Division. Without
revising the estimate and getting it sanctioned, it was not possible to resume the
work. It is stated that even in the absence of a stop memo when a revised estimate
is pending, work could not have been continued as measurement has to be entered
on each day. According to the petitioner, the decision taken on 13.01.2021 was
without considering the practical difficulties and without considering the expiry of
the agreement. It is stated that 20 months' time was taken for getting the revised
estimate and that the Department alone is responsible for the delay of that much
period. According to him, the fact that the 5 extensions were granted without
penalty, would show that the default was not on the part of the contractor. It is
stated that the 2nd respondent, who refused to forward the applications submitted
by the petitioner, committed dereliction of duty; the 20 months' time for revised
sanction and thereafter the refusal to extend the agreement has resulted in delay in
completing the work . It is stated that even during the time when the area was
affected by the flood, the petitioner completed the work of transformer yard and
duct cable, even when the Revenue Department had to remove tonnes of sand from
the field on account of the flood and it became impossible for the petitioner to do
the pipeline work in the field. When there is 40% escalation in price on account of
the delay of 5 years caused by the Department, the petitioner cannot be asked to
carry out the work at the pre-revised rates. According to the petitioner, the order of
termination with risk and cost is illegal.
5. I heard the learned Counsel for the petitioner and the learned
Government Pleader.
6. Ext.P8 order of termination is issued for non-completion of work.
The work is to be executed in terms of the contract entered. In the present case,
both sides agree that the time for completion was extended several times and that
there was no extension of time after 03.06.2019.
7. The materials on record would show that the petitioner continued to
seek for extension of time by submitting petitions after petitions and the
respondents continued to issue orders after orders directing the petitioner to
resume the work. There was neither extension nor resumption. Petitioner's
demand is not only for extension but for escalation of rates also. But it is stated
that the conditions of contract did not provide for any escalation of rate. It would
appear that the petitioner is not inclined to continue the work at the original rates
even if extension is granted. This Court would not be in a position to determine
whether the petitioner deserves escalation of rate or to direct the respondents to
revise the rates, as the petitioner was awarded the work on contract.
8. Regarding the contention of the petitioner that he lost 20 months' time
on account of sanctioning of revised estimates and the delay was not at his
instance, the admitted facts would show that the original time for completion of
work was one year. The petitioner admits that time was granted till 03.06.2019 as
against the scheduled date of completion of 03.03.2017. The petitioner admits
that he received the notices directing resumption of work. But according to him,
when his applications for extension of time was pending and there was no
extension of agreement or any response to his applications, it was not necessary to
act upon those notices.
9. The pleadings would show that there is absolutely no co-operation
between the agreement authority and the contractor. The learned Government
Pleader argued that the respondents lost confidence in the petitioner. In such
circumstances, it woud not be proper for this Court even to direct the respondents
to re-consider the issue.
10. When there is contract entered into between the petitioner and the
respondents and the respondents have terminated the contract in accordance with
the conditions of contract, this Court is not expected to interfere with it. Whether
there was breach of conditions or not would be a matter to be adjudicated after
adducing evidence. Even regarding the quantum of work executed, there is
dispute between the parties.
Therefore, I am of the view that a Writ Petition under Article 226 of the
Constitution of India would not be the proper remedy available to the petitioner.
Hence, I dismiss the Writ Petition. The petitioner would be free to agitate the
matter before the appropriate forum.
Sd/- (P.V.ASHA, JUDGE)
rtr/
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AGREEMENT NO.SE(MI)-
76/2015-16 DATED 4.3.2016 BETWEEN THE
PETITIONER AND THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED
2.8.2016 SENT BY THE 6TH RESPONDENT TO THE
3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REQUEST MADE BY THE
PETITIONER TO THE 3RD RESPONDENT DATED
2.8.2019.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED
10.12.2020 SENT BY THE PETITIONER TO THE
2ND AND 5TH RESPONDENTS.
EXHIBIT P5 A TRUE COPY OF THE REQUEST DATED 8.1.2021
SENT TO THE 5TH RESPONDENT BY THE
PETITIONER
EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE MEETING
DATED 13.1.2021 HELD BY 4TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED
15.1.2021 SENT BY THE PETITIONER TO THE 2ND
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 25.1.2021
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE ORDER NO DB5-4188/14 DATED
27.11.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED
24.8.2020 SENT BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED
7.9.2020 SENT BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P12 TRUE COPY OF THE COMMUNICATION DATED
6.11.2020 SENT BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P13 TRUE COPY OF THE PROGRESS REPORT OF THE
WORK SHOWING COMPLETION OF 56% OF THE WORK
ISSUED BY THE MINOR IRRIGATIOB SUB DIVISION
FOR THE MONTH OF JULY.
EXHIBIT P14 TRUE COPY OF THE BANK STATEMENT SHOWING
PAYMENT OF RS.3,00,000/- ON 8.11.2016 AS
ADVANCE PAYMENT TO M/S.MERCURY ENTERPRISES.
EXHIBIT P15 TRUE COPY OF THE BANK STATEMENT SHOWING
RECEIPT OF RS.3,00,000/- ON 15.5.2017
SHOWING RETURN OF ADVANCE PAYMENT.
EXHIBIT P16 TRUE COPY OF COMMUNICATION DATED NIL ISSUED
BY M/S MERCURY ENTERPRISES, PIPE SUPPLIER
TO THE PETITIONER STATING THE REASONS FOR
RETURNING THE AMOUNT.
RESPONDENTS' EXHIBITS
ANNEXURE R2(a) TRUE COPY OF THE LETTER DT.7.12.2020.
ANNEXURE R2(b) TRUE COPY OF RELEVANT PAGE OF THE
AGREEMENT.
