Kerala High Court
M/S. G.K.V.Associates vs The Superintending Engineer on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
WP(C) NO. 15722 OF 2021
PETITIONER:
MAJESTIC CONSTRUCTIONS
REPRESENTED BY ITS MANAGING PARTNER, DOMINIC
ZACHARIAS, S/O P.O.ZACHARIAS, AGED 54 YEARS,
PANAMKATTU HOUSE, KARIMKUNNAM P.O.THODUPUZUA
TALUK, IDUKKI DISTICT-685 586.
BY ADVS.
GEORGE MATHEW
M.D.SASIKUMARAN
PRAVEEN S.
SUNIL KUMAR A.G
DIPU JAMES
MATHEW K.T.
GEORGE K.V.
STEPHY K REGI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE PUBLIC WORKS DEPARTMENT,
REP BY ITS SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE FINANCE DEPARTMENT (INDUSTRIES &
PUBLIC WORKS-B)
REP BY ITS SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
4 THE CHIEF ENGINEER
OFFICE OF THE CHIEF ENGINEER, PUBLIC WORKS
DEPARTMENT (ROADS & BRIDGES), THUCADU,
THIRUVANANTHAPURAM-695 014.
5 THE SUPERINTENDING ENGINEER,
PUBLIC WORKS DEPARTMENT, ROADS CENTRAL CIRCLE,
ALUVA-683 101.
6 THE EXECUTIVE ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER, PUBLIC WORKS
DEPARTMENT, ROADS DIVISION, PAINAVU P.O.IDUKKI
DISTRICT-685 603.
W.P.(C).Nos.15722, 17618 & 19228 of 2021
2
7 THE SENIOR FINANCE OFFICER,
OFFICE OF THE CHIEF ENGINEER,PUBLIC WORKS
DEPARTMENT P.W.D.(ROADS & BRIDGES) THYCADU,
THIRUVANANTHAPURAM-695 014.
BY ADV.K.V.MANOJ KUMAR, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.11.2021, ALONG WITH WP(C).19228/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).Nos.15722, 17618 & 19228 of 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA,
1943
WP(C) NO. 17618 OF 2021
PETITIONERS:
1 RAFEEK C.H.,AGED 43 YEARS
C.K.HAMEED, RESIDING AT CHULLIMALATHAZHATHU
HOUSE, PERUMBALOOR P.O., MUVATTUPUZHA, ERNAKULAM
DISTRICT-686 673.
2 P.A.RAJAN, AGED 64 YEARS
S/O.AYYAPPAN, RESIDING AT PEEDIKAYIL HOUSE,
KADAYIRIPPU, KOLENCHERI, ERNAKULAM DISTRICT-682
311.
3 SHYNU T.VARGHESE, AGED 60 YEARS
S/O.PAILY VARKEY, RESIDING AT THENICKAKUDY
HOUSE, SOUTH MARADY P.O., MUVATTUPUZHA,
ERNAKULAM DISTRICT-686 673.
4 K.M.SUNNY,
AGED 53 YEARS
S/O.P.V.MATHAI, RESIDING AT KANJITHINKAL HOUSE,
THIRUVANIYOOR P.O., PUTHENCRUZ, ERNAKULAM
DISTRICT-682 308.
5 SUBAIR.N.A., AGED 49 YEARS
S/O.ALIYAR, RESIDING AT NIRAPPEL HOUSE, MUDAVOOR
P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-686 673.
6 N.K.ASHRAF, AGED 49 YEARS
S/O.KUNJUMON, RESIDING AT NIRAPPEL HOUSE,
MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-
686 673.
7 N.U.KUNJU MUHAMMED,AGED 53 YEARS
S/O.UMMER, RESIDING AT NEDUMPURATHU HOUSE,
MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-
686 669.
8 P.P.OUSEPH, AGED 65 YEARS
PADAYATTIL HOUSE, S/O.POULOSE, NELLIKKUZHI P.O.,
KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691.
W.P.(C).Nos.15722, 17618 & 19228 of 2021
4
9 VARGHESE KUTTY.M.K., AGED 45 YEARS
S/O.KURIAKOSE, MOOSAPPILLIL HOUSE, KOTTAPPADY
P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691.
BY ADVS.ABDUL RAOOF PALLIPATH
K.R.AVINASH (KUNNATH)
E.MOHAMMED SHAFI
C.H.ABDUL RASAC
RESPONDENTS:
1 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT,
3RD FLOOR, REVENUE COMPLEX, PUBLIC OFFICE
BUILDING, THIRUVANANTHAPURAM-695 001.
2 THE SUPERINTENDING ENGINEER,
PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA,
ERNAKULAM DISTRICT-683 101.
3 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION, MUVATTUPUZHA P.O., ERNAKULAM
DISTRICT-686 661.
4 THE ASSISTANT EXECUTIVE ENGINEER,
PWD ROAD SUB DIVISION, MUVATTUPUZHA P.O.,
ERNAKULAM DISTRICT-686 661.
5 THE ASSISTANT EXECUTIVE ENGINEER,
PWD ROADS SUB DIVISION, PERUMBAVOOR, ERNAKULAM
DISTRICT-683 542.
6 THE ASSISTANT EXECUTIVE ENGINEER,
PWD BRIDGES SUB DIVISION, CIVIL STATION,
KAKKANAD, ERNAKULAM DISTRICT-682 030.
7 THE ASSISTANT EXECUTIVE ENGINEER,
PWD ROADS SUB DIVISION, KOTHAMANGALAM, ERNAKULAM
DISTRICT-686 691.
8 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY, PUBLIC WORKS
DEPARTMENT, THIRUVANANTHAPURAM-695 001.
BY ADV.K.V.MANOJ KUMAR, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.11.2021, ALONG WITH WP(C).19228/2021
AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).Nos.15722, 17618 & 19228 of 2021
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA,
1943
WP(C) NO. 19228 OF 2021
PETITIONER:
M/S. G.K.V.ASSOCIATES,
VELLAMATTOM ESTATE, P.O. JUNCTION, MUVATTUPUZHA,
REPRESENTED BY ITS MANAGING PARTNER.
BY ADVS.
PHILIP J.VETTICKATTU
SAJITHA GEORGE
RESPONDENTS:
1 THE SUPERINTENDING ENGINEER,
PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA 683
101.
2 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, PUBLIC WORKS
DEPARTMENT, SECRETARIAT , TRIVANDRUM 695 001.
3 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, FINANCE
DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM
695 001.
4 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT,T TRIVANDRUM 695 001.
BY ADV.K.V.MANOJ KUMAR, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.11.2021, ALONG WITH WP(C).15722/2021,
17618/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).Nos.15722, 17618 & 19228 of 2021
6
P.V.KUNHIKRISHNAN, J.
--------------------------------
W.P.(C).Nos.15722, 17618 & 19228 of 2021
----------------------------------------------
Dated this the 30th day of November, 2021
JUDGMENT
These three writ petitions are connected. The petitioners
in these writ petitions are challenging G.O.(Rt)
No.3815/2021/Fin. dated 30.04.2021 of the Government of
Kerala.
2. When these writ petitions came up for
consideration, both sides submitted that the point raised in
these writ petitions are covered by common judgment dated
11.11.2021 in W.P.(C). No.22964 of 2021 and connected cases.
It will be better to extract the relevant portion of the
judgment:
"24. The Ext.P7 thus imposes a new condition
in all the ongoing works as on 30.04.2021. Further,
the said new condition is made applicable to all
works for which agreements are executed after
01.11.2018. Ext.P7 is legally infirm for two reasons.
Firstly, by Ext.P7, a new onerous condition is
imposed on all ongoing works unilaterally, which is
impermissible in law. It is true that as per Clause 5.2
W.P.(C).Nos.15722, 17618 & 19228 of 2021
of the Standard Bidding Document, a contractor is
bound by all Government Orders prevailing. But the
said Clause cannot take in Government Orders which
were not prevailing at the time of the execution of
agreement.
25. Secondly, there may be contracts executed
after 01.11.2018 and works completed before
issuance of Ext.P7 on 30.04.2021. Subsequently
issued Government Orders cannot alter the rights
and liabilities of concluded commercial contracts.
For both the afore reasons, Ext.P7 order cannot be
made applicable to all agreements executed after
01.11.2018 and before 30.04.2021.
In the circumstances, it is declared that Ext. P7
Government Order dated 30.04.2021 will not apply
to such contract works undertaken by the petitioners
prior to 30.04.2021 which were not ongoing contract
works as on 01.11.2018. All consequence of such
declaration will follow. The writ petitions are
disposed of as above. However, it is made clear that
Ext. P7 Government Order will apply to all contract
works including if any undertaken by the petitioners,
the work of which were ongoing as on 01.11.2018."
3. In the light of the above judgment, I think these
writ petitions can also be disposed in tune with the above
judgment.
Therefore, these three writ petitions are disposed in tune
with the judgment dated 11.11.2021 in W.P.(C). No.22964 of
W.P.(C).Nos.15722, 17618 & 19228 of 2021
2021 and connected cases. The petitioners are free to
approach the authority concerned to release the amount in
accordance with the above judgment, if there is any amount
due to them. If any amount is due to the petitioners, the same
should be disbursed forthwith. It is made clear that if the
respondents have got any right to recover any amount in tune
with the above judgment, they are free to recover the same.
Sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).Nos.15722, 17618 & 19228 of 2021
APPENDIX OF WP(C) 15722/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF WORK ORDER NO DIT-
11901/2018 DATED 14.06.2019 ALONG WITH
SCHEDULE.
Exhibit P2 TRUE COPY OF COMPLETION CERTIFICATE
DATED 17.6.2021 ISSUED BY 5TH
RESPONDENT
Exhibit P3 TRUE COPY OF GO(RT0 NO 3815/2021 /FIN
DATED 30.4.2021 ISSUED BY 3RD
RESPONDENT
Exhibit P4 TRUE COPY OF REPRESENTATION DATED
15.7.2021 SUBMITTED BY PETITIONER TO
6TH RESPONDENT
Exhibit P5 TRUE COPY OF INTIMATION A7/11/2021
DATED 19.7.2021 ISSUED BY 6TH
RESPONDENT TO 7TH RESPONDENT
Exhibit P6 TRUE COPY OF LETTER NO NO D2-
11901/2018 DATED 23.7.2021 ISSUED BY
6TH RESPONDENT
Exhibit P7 TRUE COPY OF GO(RT0 NO 9386/2018/FIN
DATED 13.11.2018 ISSUED BY 3RD
RESPONDENT
Exhibit P8 TRUE COPY OF GO(RT0 NO 2816/2020/FIND
DATED 17.4.2020 ISSUED BY 3RD
RESPONDENT
Exhibit P9 TRUE COPY OF GO(RT) NO 5502/2020/FIN
DATED 25.9.2020 OF 3RD RESPONDENT
Exhibit P10 TRUE COPY OF RELEVANT PAGED OF NIT NO
1/2018-19 DATED 2.3.2019 ISSUED BY 5TH
RESPONDENT
Exhibit P11 TRUE COPY OF TREASURY SAVING BANK TERM
DEPOSIT CERTIFICATE NO.JK NO.359844
DATED 11/7/2023 ISSUED FROM SUB
TREASURY, ALUVA
Exhibit P12 TRUE COPY OF IBG NO.99081
DTD.12/7/2021 OF FEDERAL BANK,
THODUPUZHA.
W.P.(C).Nos.15722, 17618 & 19228 of 2021
APPENDIX OF WP(C) 17618/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE INVITING
TENDER ISSUED BY THE 3RD RESPONDENT.
Exhibit P2 TRUE COPY OF THE BILL DATED 08.03.2021
ISSUED IN FAVOUR OF THE 1ST
PETITIONER.
Exhibit P3 TRUE COPY OF THE NOTICE NO.A2-737/19
ISSUED BY THE 4TH RESPONDENT TO THE
1ST PETITIONER DATED 06.08.2021.
Exhibit P4 TRUE COPY OF THE NOTICE NO.A2-
6484/2019 ISSUED BY THE 4TH RESPONDENT
TO THE 5TH PETITIONER DATED
09.08.2021.
Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF PWD
MANUAL, 2012.
Exhibit P6 TRUE COPY OF THE GO(RT)
NO.9386/2018/FIN DATED 13.11.2018
ISSUED BY THE 7TH RESPONDENT.
Exhibit P7 TRUE COPY OF THE CIRCULAR
NO.753/2012/CE/LSGD DATED 15.02.2020
ISSUED BY THE CHIEF ENGINEER, LOCAL
SELF GOVT. DEPARTMENT.
Exhibit P8 TRUE COPY OF THE ORDER
NO.GO(RT)NO.3815/2021/FIN DATED
30.04.2021 ISSUED BY THE 7TH
RESPONDENT.
EXHIBIT P9 COPY OF THE G.O.(RT) NO.5502/2020/FIN
DATED 25.09.2020
W.P.(C).Nos.15722, 17618 & 19228 of 2021
APPENDIX OF WP(C) 19228/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE INVITING
TENDER ISSUED BY THE IST RESPONDENT
DATED 2.2.2019 WITH RESPECT TO MARIKA
WORK.
Exhibit P2 TRUE COPY OF THE BOQ UPLOADED BY THE
PETITIONER ALONG WITH THE BID WITH
RESPECT TO MARIKA WORK.
Exhibit P3 TRUE COPY OF RELEVANT PAGES OF THE
AGREEMENT DATED 8.3.2019 EXECUTED
BETWEEN THE PETITIONER AND THE
COMPETENT AUTHORITY WITH RESPECT TO
MARIKA WORK.
Exhibit P4 TRUE COPY OF THE COMPLETION
CERTIFICATE ISSUED BY THE AUTHORITY
COMPETENT WITH RESPECT TO MARIKA WORK
ON 15.10.2020.
Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF THE
NOTICE INVITING TENDER WITH RESPECT TO
THE FESTIVAL ROAD WORK DT. 20.9.2019.
Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF
AGREEMENT DATED 18.11.2019 EXECUTED
BETWEEN THE PETITIONER AND THE
COMPETENT AUTHORITY WITH RESPECT TO
FESTIVAL ROAD WORK.
Exhibit P7 TRUE COPY OF BILLS ISSUED BY THE
MANGALORE REFINERY PETROCHEMICALS LTD
FOR PURCHASING BITUMEN.
Exhibit P8 TRUE COPY OF THE COMPLETION
CERTIFICATE DATED 25.03.2021 ISSUED BY
THE RESPONDENT WITH RESPECT TO THE
FESTIVAL ROAD WORK.
Exhibit P9 TRUE COPY OF QUERY SUBMITTED BY THE
PETITIONER UNDER THE PROVISIONS OF
RIGHT TO INFORMATION ACT DT.
11.8.2021.
Exhibit P10 TRUE COPY OF INFORMATION OBTAINED BY
THE PETITIONER TO EXT. P9 UNDER THE
RIGHT TO INFORMATION ACT T. 26.8.2021.
W.P.(C).Nos.15722, 17618 & 19228 of 2021
Exhibit P11 TRUE COPY OF GOVERNMENT ORDER DATED
30.4.2021 BEING NO. GO(RT)
3815/2021/FIN.
Exhibit P12 TRUE COPY OF GOVERNMENT ORDER DATED
13.11.2018 BEARING NO. G.O.(RT) NO.
9386/2018/FIN.
Exhibit P13 TRUE COPY OF GOVERNMENT ORDER DATED
17.4.2020 BEARING NO. GO(RT) NO.
2816/2020/FIN.
Exhibit P14 TRUE COPY OF GOVERNMENT ORDER DATED
25.9.2020 BEARING NO. GO(RT) NO.
5502/2020/FIN.
