Kerala High Court
Mohamed Rasheed K M vs Kerala Water Authority on 23 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
WP(C) NO. 25729 OF 2021
PETITIONER:
MOHAMED RASHEED K M
KARUKAMANNIL HOUSE,
EDAYUR NORTH P.O, VALANCHERRY,
MALAPPURAM-676552.
BY ADV P.SHANES METHAR
RESPONDENTS:
1 KERALA WATER AUTHORITY
JALA BHAVAN, VELLAYAMBALAM,
THIRUVANANTHAPURAM-695033,
REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE CHIEF ENGINEER
OFFICE OF THE CHIEF ENGINEER,
KERALA WATER AUTHORITY,
HOSPITAL ROAD, KOCHI-682035.
3 THE SUPERINTENDING ENGINEER
OFFICE OF THE SUPERINTENDING ENGINEER,
KERALA WATER AUTHORITY, P H CIRCLE (THRISSUR),
HIGH ROAD,
SAKTHAN THAMPURAN ROAD, THRISSUR-680001.
4 THE EXECUTIVE ENGINEER
OFFICE OF THE EXECUTIVE ENGINEER, KERALA WATER
AUTHORITY, PROJECT DIVISION, NATTIKA, THRISSUR-680566.
5 KERALA INFRASTRUCTURE INVESTMENT FUND BOARD (KIIFB)
SECOND FLOOR, FELICITY SQUARE,
KODER JUNCTION, PALAYAM,
THIRUVANANTHAPURAM-695001,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
BY ADVS.
WP(C) NO.25729/2021
2
SRI.S.RAMESH BABU FOR PETITIONER,
SRI.P.BENJAMIN PAUL, SC FOR KWA,
SRI.B.G.HARINDRANATH, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO.25729/2021
3
P.V.KUNHIKRISHNAN, J
-------------------------------
W.P.(C)No.25729 of 2021
--------------------------------
Dated this the 23rd day of November, 2021
JUDGMENT
The above writ petition is filed with
following prayers:
"i) To declare that the contract awarded
to the petitioner pursuant to Ext.P2 selection
notice has become commercially impossible and
impractical to perform;
ii) To issue a writ of certiorari calling
for the records leading up to the issuance of
Ext.P22, examine its legality and propriety and
quash the same;
iii) That in view of the commercial
impossibility to direct the respondents no.1 to
5 to discharge the petitioner from his
obligations and close Ext.P4 contract;
iv) To issue a writ of mandamus or any
other writ or direction commanding the
respondents no.1 to 4 to return the Security
Deposit Receipt as also the originals of the
Bank Guarantee submitted towards performance
guarantee and additional performance guarantee;
v) To direct the respondents to release
the payments for the pipes purchased and
supplied by the petitioner in connection with
the work awarded to him at the agreed rates;
WP(C) NO.25729/2021
vi) Any other relief that may be deemed
fit in the facts and circumstances of the
case."
2. The petitioner was awarded with an item
of work which involves purchase, supply, laying,
testing and commissioning of pipes as it major
components. The contract was awarded to the
petitioner at Rs.32.48 crores approximately. As
regards the components for pipe laying, the
awarded sum is Rs.32,18,24,000/-. It is the
case of the petitioner that he could not
commence the work due to Covid 19 restrictions
and also due to monsoon ban. Further the
project was not got approved by the 5th
respondent and therefore submission of bill was
also not possible. It is the case of the
petitioner that, due to the steep hike in rates,
the petitioner will have to expend another Rs.13
crores for the pipe laying works alone. In such
circumstances, the petitioner approached the
respondents requesting that he may be discharged
from his obligations in view of the commercial
WP(C) NO.25729/2021
impossibility of performance arising from
supervening events beyond the contemplation of
either of the parties. The petitioner submitted
Ext.P20 representation before the respondents.
But there is no response to the same. Hence
this writ petition is filed.
3. Heard the learned counsel for the
petitioner and the learned Standing counsel for
the respondents.
4. When this writ petition came up for
consideration, the learned Senior counsel who is
instructed to appear for the petitioner
submitted that, he will be satisfied if a
direction is issued to consider Ext.P20. The
learned Standing counsel submitted that Ext.P20
is submitted before the 3rd respondent and the
proper authority to consider the same is 1st
respondent.
5. In such circumstances, I think there
can be a direction to the 3rd respondent to
forward Ext.P20 to the 1st respondent and there
WP(C) NO.25729/2021
can be a direction to the 1st respondent to
consider the same within a time frame.
Therefore, this writ petition is disposed
of in the following manner:
(i) The 3rd respondent is directed to
forward Ext.P20 to the 1st respondent within two
weeks from the date of receipt of a copy of this
judgment.
(ii) The 1st respondent will consider
Ext.P20 and pass appropriate orders in it, as
expeditiously as possible, at any rate, within
two months from the date of receipt of a copy of
this judgment.
(iii) Before passing final orders, the 1st
respondent will give an opportunity of hearing
to the petitioner.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
WP(C) NO.25729/2021
APPENDIX OF WP(C) 25729/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF
THE NOTICE INVITING TENDER-E-TENDER
NO.12/SE/PHC/PSR-2019-2020 OF
SUPERINTENDING ENGINEER, P H CIRCLE,
THRISSUR, ISSUED.
EXHIBIT P2 TRUE COPY OF SELECTION NOTICE DATED
25.02.2020.
EXHIBIT P3 TRUE COPY OF THE ACCEPTED PRICE
SCHEDULE.
EXHIBIT P4 TRUE COPY OF CONTRACT AGREEMENT DATED
20.03.2020.
EXHIBIT P5 TRUE COPY OF THE ORDER NO.40-3/2020-
DM-I(A) DATED 24.03.2020 OF MINISTRY
OF HOME, GOVERNMENT OF INDIA
DECLARING NATIONWIDE LOCKDOWN.
EXHIBIT P5(A) TRUE COPY OF THE O M NO.F.18/4/2020-
PPD DATED 13.05.2020 OF MINISTRY OF
FINANCE GOVERNMENT OF INDIA.
EXHIBIT P5(B) TRUE COPY OF THE LETTER NO.I & PW.B2
97/2020 FIN DATED 26.08.2020 OF THE
ADDITIONAL CHIEF SECRETARY (FINANCE).
EXHIBIT P6 TRUE COPY OF PURCHASE ORDER DATED
24.03.2020.
EXHIBIT P7 TRUE COPY OF THE ORDER NO.KWA/HO/SP-
440/2017/TPI(I) DATED 2.07.2020.
EXHIBIT P8 TRUE COPY OF THE PROFOMA INVOICE
DATED 28.09.2020 ISSUED BY CIPET.
EXHIBIT P9 TRUE COPY OF COMMUNICATION DATED
20.01.2021 ISSUED TO THE FOURTH
RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER GO
(MS) 69/2018.FIN DATED 24.02.2018.
WP(C) NO.25729/2021
EXHIBIT P11 TRUE COPY OF GOVERNMENT ORDER GO(MS)
NO.160/2018/FIN DATED 28.04.2018.
EXHIBIT P12 TRUE COPY OF MINUTES OF THE MEETING
DATED 31.03.2021.
EXHIBIT P13 TRUE COPY OF COMMUNICATION DATED
19.04.2021 OF THE 4TH RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED
19.04.2021 ADDRESSED TO THE
MANUFACTURER.
EXHIBIT P15 TRUE COPY OF THE LETTER NO.D-643/2020
DATED 09.06.2021 OF THE 4TH
RESPONDENT.
EXHIBIT P16 TRUE COPY OF THE LETTER NO.D2-
643/2020 DATED 25.06.2021 OF THE 4TH
RESPONDENT.
EXHIBIT P17 TRUE COPY OF THE E -MAIL
COMMUNICATION DATED 7.7.21 ISSUED TO
THE PETITIONER FROM THE PIPE
MANUFACTURER.
EXHIBIT P18 TRUE COPY OF THE LETTER
NO.KWA/PHC/TSR/D-2709/2019 (PART-2)
DATED 29.09.2021 OF THE 3RD
RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE LETTER NO.D2-
643/2018 DATED 11.10.2021 OF THE 4THE
RESPONDENT.
EXHIBIT P20 TRUE COPY OF THE REPRESENTATION DATED
27.10.2021 ADDRESSED TO THE
RESPONDENT.
EXHIBIT P20(A) TRUE COPY OF ACKNOWLEDGMENT CARD
RETURNED TO THE PETITIONER.
EXHIBIT P21 TRUE COPY OF THE LIST OF APPROVED
WORKS OF KWA (UNDER PH CIRCLE
THRISSUR ) AS PUBLISHED IN THE
WEBSITE OF THE FIFTH RESPONDENT.
EXHIBIT P22 TRUE COPY OF NOTICE ISSUED BY 4TH
WP(C) NO.25729/2021
RESPONDENT ON 05.11.2021.
EXHIBIT P23 TRUE COPY OF THE NOTICE NO.KWA/PHC/TC
R/D3-2709/2019 (PART-2) DATED
15/11/2021 OF THE 3RD RESPONDENT.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY//
PA TO JUDGE
