Ojasvi'S Construction Solutions vs State Of Kerala
2021 Latest Caselaw 21891 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021/12TH KARTHIKA, 1943
                    WP(C) NO. 12243 OF 2021
PETITIONER:

         OJASVI'S CONSTRUCTION SOLUTIONS,
         A PARTNERSHIP FIRM,
         REGISTERED UNDER THE INDIAN PARTNERSHIP ACT,
         REP. BY ITS MANAGING PARTNER,
         ARUN P.,
         S/O.P.PURUSHOTHAMAN,
         PARASKHTHI BUILDING,
         SHORANUR, PALAKKAD DISTRICT, 679 122

         BY ADV BINOY VASUDEVAN
         SRI.SREEJITH SREENATH


RESPONDENTS:

    1    STATE OF KERALA,
         REP. BY ITS PRINCIPAL SECRETARY TO THE
         GOVERNMENT,
         PUBLIC WORKS DEPARTMENT,
         GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM 695 001

    2    THE CHIEF ENGINEER (ROADS),
         PUBLIC WORKS DEPARTMENT,
         GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM 695 001.

    3    THE SUPERINTENDING ENGINEER,
         PUBLIC WORKS DEPARTMENT (ROADS AND BRIDGES),
         CENTRAL CIRCLE,
         ALUVA 683 101

    4    THE EXECUTIVE ENGINEER,
         PUBLIC WORKS DEPARTMENT (ROADS DIVISION),
         THRISSUR - 680 001
 WP(C) No.12243/2021
                            :2 :


     5     THE ASSISTANT EXECUTIVE ENGINEER,
           PUBLIC WORKS DEPARTMENT (ROADS SUB DIVISION),
           CHAVAKKAD - 680 506

           SRI.K.V.MANOJKUMAR, SR.GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP             FOR
ADMISSION ON 03.11.2021, THE COURT ON THE SAME             DAY
DELIVERED THE FOLLOWING:
 WP(C) No.12243/2021
                                  :3 :




                             JUDGMENT

~~~~~~~~~

Dated this the 3rd day of November, 2021

The petitioner-Firm, which is an A-class Contractor

under the Public Works Department, has approached this

Court seeking to command the 2nd respondent to relieve the

petitioner from the contract by considering Ext.P14

representation forwarded by the 3rd respondent as

expeditiously as possible.

2. The petitioner states that the Firm of the petitioner

participated in a tender floated by the 3 rd respondent. The

tender was for improvement of a road under the jurisdiction of

respondents 4 and 5. Agreement was executed on

20.04.2018 and the site was handed over to the petitioner on

30.04.2018.

3. The petitioner was directed not to start the work

since the Kerala Water Authority was proposing to lay WP(C) No.12243/2021

pipelines through the road. It is the case of the petitioner that

though the petitioner approached the officers many times to

sort out the issue, no action was taken for nearly one year.

The Kerala Water Authority finally informed that they are not

proposing to lay pipeline through the portion where the

contract work is proposed to be done.

4. The petitioner would state that by this time, the

price of materials was escalated and the petitioner submitted

an application for revision of rates. No decision was taken on

the application of the petitioner for the next six months. But,

at the same time, the respondents were forcing the petitioner

to start and complete the work. As the petitioner was not in a

position to undertake the work without revision of rates, the

petitioner submitted Ext.P14 application before the 3 rd

respondent seeking to relieve him from the work and pay the

bills for the work already done.

5. As no action was taken on Ext.P14, the petitioner

filed W.P.(C) No.1895/2021 wherein this Court directed the 2 nd

respondent to consider Ext.P14 and take a decision thereon. WP(C) No.12243/2021

As it was not the 3rd respondent's jurisdiction to terminate the

contract work without risk and cost, the 3 rd respondent

forwarded the matter to the 2nd respondent as can be seen

from Ext.P16. However, no action was taken on the request

of the petitioner. Therefore, the petitioner is before this Court.

6. During the pendency of this writ petition, the

petitioner produced Ext.P18, which is a minutes of the hearing

held by the Chief Engineer, PWD (Roads) on 25.08.2021. In

the said meeting, it was recorded that the Superintending

Engineer, Roads Central Circle, Aluva pointed out that the

condition of the road in question is becoming worse and in

order to make the road traffic worthy, rearrangement of work

after terminating the petitioner's contract is inevitable.

Accordingly, the Chief Engineer informed that the proposal for

terminating the Contractor without risk and cost was already

submitted to the Government on 18.07.2021 and considering

the damaged condition of the road and contractor's request,

reminders shall be submitted to the Government regarding

the relieving of the Contractor from the work. WP(C) No.12243/2021

7. I have heard the learned counsel for the petitioner

and the learned Government Pleader representing the

respondents.

8. As the request of the petitioner for termination of

contract without risk and cost is now pending consideration

before the Government, it would be only just and proper that

the writ petition is disposed of directing the 1 st respondent to

take a final decision in the matter within a stipulated period.

Accordingly, the writ petition is disposed of directing

the 1st respondent to take a final decision on the issue of

termination of the contract with the petitioner taking into

consideration Ext.P18 minutes of the hearing held by the Chief

Engineer, PWD (Roads), within a period of one month.

Sd/-

N. NAGARESH, JUDGE

aks/05.11.2021 WP(C) No.12243/2021

APPENDIX OF WP(C) 12243/2021

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE PWD LICENSE OF THE PETITIONER Exhibit P2 TRUE COPY OF THE LETTER NO.DTC-

4071/2017 DATED 4.4.2018 ISSUED BY THE 3RD RESPONDENT Exhibit P3 TRUE COPY OF THE TENDER QUOTED BY THE PETITIONER Exhibit P4 TRUE COPY OF THE ACKNOWLEDGEMENT FORM OF HANDING OVER OF THE SITE DATED 30.4.2018 Exhibit P5 TRUE COPY OF THE LETTER DATED 23.9.2018 SUBMITTED BY THE PETITIONER BEFORE THE 4TH AND 5TH RESPONDENTS Exhibit P6 TRUE COPY OF THE LETTER DATED 31.10.2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit P7 TRUE COPY OF THE LETTER DATED 12.3.2019 SENT BY THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY TO THE 5TH RESPONDENT. Exhibit P8 TRUE COPY OF THE LETTER DATED 1.4.2019 SENT BY THE 5TH RESPONDENT TO THE PETITIONER Exhibit P9 TRUE COPY OF THE LETTER DATED 12.7.2019 SENT BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT.

Exhibit P10 TRUE COPY OF THE LETTER DATED 1.9.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit P11 TRUE COPY OF THE LETTER DATED 30.9.2019 SENT BY THE 5TH RESPONDENT TO THE PETITIONER Exhibit P12 TRUE COPY OF THE LETTER DATED 8.11.2019 SENT BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT Exhibit P13 TRUE COPY OF THE LETTER DATED 9.12.2019 SENT BY THE 5TH RESPONDENT WP(C) No.12243/2021

Exhibit P14 TRUE COPY OF THE REQUEST DATED 3.2.2020 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.

Exhibit P15 TRUE COPY OF THE JUDGMENT DATED 12.2.2021 IN W.P.(C) NO.1895/2021 Exhibit P16 TRUE COPY OF THE COMMUNICATION DATED 8.3.2021 FORWARDED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.

Exhibit P17 TRUE COPY OF THE COMMUNICATION DATED 31.5.2021 SENT BY THE 3RD RESPONDENT TO THE PETITIONER.

Exhibit P18 TRUE COPY OF THE MINUTES OF THE MEETING DATED 25/08/2021 CONVENED BY THE 2ND RESPONDENT.

SR