Anwar.P vs Calicut University
2022 Latest Caselaw 4598 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 FRIDAY, THE 22ND DAY OF APRIL 2022 / 2ND VAISAKHA, 1944
                WP(C) NO. 23116 OF 2021
PETITIONER:

         ANWAR.P
         AGED 43 YEARS
         S/O.MOOSA, PWD CONTRACTOR,
         PATTASSERI HOUSE, VALIYORA.P.O,
         MALAPPURAM DISTRICT-676304.

         BY ADVS.
         PUSHPARAJAN KODOTH
         K.JAYESH MOHANKUMAR
         VANDANA MENON
         VIMAL VIJAY


RESPONDENTS:

    1    CALICUT UNIVERSITY
         REPRESENTED BY THE REGISTRAR,
         THENHIPPALAM, MALAPPURAM DISTRICT-673635.
    2    THE EXECUTIVE ENGINEER (CIVIL),
         ENGINEERING DEPARTMENT, UNIVERSITY OF CALICUT,
         THENHIPPALAM, MALAPPURAM DISTRICT-673635.
    3    ASSISTANT EXECUTIVE ENGINEER(CIVIL),
         ENGINEERING DEPARTMENT, UNIVERSITY OF CALICUT,
         THENHIPPALAM, MALAPPURAM DISTRICT-673635.
    4    THE ASSISTANT ENGINEER(CIVIL),
         ENGINEERING DEPARTMENT, UNIVERSITY OF CALICUT,
         THENHIPPALAM, MALAPPURAM DISTRICT-673635.

         BY ADV SRI.P.C.SASIDHARAN, SC, CALICUT
         UNIVERSITY

     THIS WRIT PETITION (CIVIL) HAVING COME UP       FOR
ADMISSION ON 22.04.2022, THE COURT ON THE SAME       DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.23116/2021
                                       :2:




                           N. NAGARESH, J.

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                      W.P.(C) No.23116 of 2021

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                Dated this the 22nd day of April, 2022

                            JUDGMENT

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Petitioner, who is an A Class Contractor

undertaking works for PWD, has approached this Court

seeking to quash Exts.P8 and P11 and to direct respondents

1 and 2 to disburse the security deposit to the petitioner by

executing Ext.P3 agreement. The petitioner has also sought

for certain incidental reliefs.

2. The petitioner was awarded with the work of

Construction of Ring Road connecting newly constructed Life

Science and Mathematics Department by the University of

Calicut. Ext.P3 agreement was executed on 27.02.2020.

The estimate amount was ₹23,35,925.67. The petitioner

states that though Ext.P2 agreement was executed and work W.P.(C) No.23116/2021

had to be completed within six months, the respondents did

not handover the work site to the petitioner. The petitioner

submitted Ext.P5 representation dated 09.03.2020, Ext.P6

representation dated 19.03.2020 and Ext.P7 registered letter

dated 13.07.2021 to the respondents. In spite of the

representations and letters, work site was not handed over.

3. To the surprise of the petitioner, the respondents

passed Ext.P8 order dated 22.07.2021 directing the

petitioner to start work within three days failing which the

security deposit was to be forfeited and the contract was to

be cancelled at the risk and cost of the petitioner. The

petitioner states that the said order was passed without

considering Exts.P6 and P7 representations. To Ext.P8, the

petitioner sent Ext.P9 representation dated 10.08.2021

pointing out that the site has not been handed over to the

petitioner in spite of his request.

4. The respondents, however, passed Ext.P11 order

dated 10.09.2021 cancelling Ext.P3 agreement at the risk

and cost of the petitioner. An amount of ₹1,16,800/- by way W.P.(C) No.23116/2021

of security deposit was forfeited. The petitioner states that

Ext.P11 order is against Clause 22 of Ext.P2 and paragraphs

14.3, 14.4, 14.5 and 2102.1 of the Kerala Public Works

Department Manual.

5. The learned counsel for the petitioner argued that

Exts.P8 and P11 were passed without hearing the petitioner,

in violation of the principles of natural justice. The

respondents have not complied with Clause 22 of Ext.P2 and

paragraphs 14.3, 14.4, 14.5 and 2102.1 of the PWD Manual.

6. The respondents failed to handover the site. The

petitioner had submitted Exts.P5 and P6 representations

requiring to handover the same. No action was taken

thereon. Now, the contract has been terminated at the risk

and cost of the petitioner. For no fault of the petitioner, he is

being penalised, contended the counsel for the petitioner.

7. The 1st respondent-University resisted the writ

petition. The 1st respondent stated that Ext.P5 and P6 are

fraudulent documents which were never received by the

University. The site was handed over to the petitioner within W.P.(C) No.23116/2021

time in terms of the agreement. The site was available free

of any hindrance or encumbrance, since it is only a road

within the University. The petitioner did not turn up to execute

the work.

8. The Standing Counsel for the respondents further

argued that as per paragraph 2116.1 of the Kerala PWD

Manual, the Agreement Authority has the power to cancel the

contract and arrange the work otherwise, in the event of

default by the contractor. The damages and penalties and

can be recovered from the contractor.

9. I have heard the counsel for the petitioner and the

Standing Counsel for the respondents.

10. The case put forward by the petitioner is that as

per paragraph 14.3 of the PWD Manual, the contractor has

to take over charge of the site by signing the

acknowledgment form and commence the work within ten

days from the date of execution of agreement. As per

paragraph 2102.1, after executing the agreement, the

contractor or the authorised agent shall take over the site W.P.(C) No.23116/2021

from the Assistant Engineer within ten days and commence

the work immediately. If the contractor does not turn up, the

acknowledgment form for handing over of the site duly

signed by the Assistant Engineer shall be sent to the

contractor through registered post and it shall be deemed

that the contractor has taken over the site from the date of

posting. In the case of the petitioner, no such

communication has been sent to the petitioner through

registered post. Therefore, termination of the work with risk

and cost of the petitioner is illegal and unsustainable.

11. Admittedly, the petitioner had executed Ext.P3

agreement on 27.02.2020. Thereafter, no work was carried

out. The petitioner claims that he has sent Exts.P5 and P6

representations 09.03.2020 to the Executive Engineer. The

respondents would dispute this. According to the

respondents, the Executive Engineer has not received

Exts.P5 and P6 representations and those are concocted

documents.

W.P.(C) No.23116/2021

12. The petitioner states that he had sent Ext.P7 letter

by registered post. However, the postal acknowledgment

receipt and the delivery slip of Ext.P7 letter issued by the

postal authorities, copies of which were made available to

the Court, would show that Ext.P7 registered letter was

delivered to the Executive Engineer only on 26.07.2021, after

the Executive Engineer directed the petitioner to start the

work within three days, as per Ext.P8.

13. It has to be further noted that the petitioner has

not submitted any application for extension of time to

complete the work, before the expiry of the agreement

period. As per paragraph 2112 of the PWD Manual, even if

the failure of the contractor to complete the work on the

stipulated date is due to any departmental delays, the

contractor has to apply for extension of time through the

Assistant Engineer before the expiry of the period of

completion. The petitioner has not submitted such an

application.

W.P.(C) No.23116/2021

In the facts and circumstances of the case, this

Court is not inclined to interfere with the impugned orders at

Ext.P8 and P11 passed by the respondents. The writ petition

fails and it is accordingly dismissed.

Sd/-

N. NAGARESH, JUDGE aks/18.04.2022 W.P.(C) No.23116/2021

APPENDIX OF WP(C) 23116/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF REGISTRATION GIVEN TO THE PETITIONER BY THE SUPERINTENDENT ENGINEER, PWD BUILDINGS, NORTH CIRCLE, KOZHIKODE-673001, DATED 12.10.2012 AS AN A CLASS CONTRACTOR.

Exhibit P2              TRUE COPY OF NOTICE INVITING TENDER
                        FOR THE CONSTRUCTION OF RING ROAD
                        CONNECTING   NEWLY    CONSTRUCTED   LIFE

SCIENCE AND MATHEMATICS DEPARTMENTS ISSUED BY THE 2ND RESPONDENT DATED 17.02.2020 (36 PAGES) Exhibit P3 TRUE COPY OF AGREEMENT NO.72/2019-20 EXECUTED BY THE PETITIONER AND THE RESPONDENTS DATED 27.02.2020 (5 PAGES) Exhibit P4 TRUE COPY OF APPENDIX 2100 A REFERRED IN PARA 2102.1 OF THE KERALA PUBLIC WORKS DEPARTMENT MANUAL.

Exhibit P5 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT DT.09.03.2020.

Exhibit P6 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT DT.19.03.2020.

Exhibit P7 TRUE COPY OF REGISTERED LETTER SENT BY PETITIONER TO THE 2ND RESPONDENT DT.13.07.2021.

Exhibit P8 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 22.07.2021.

Exhibit P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 10.08.2021.

Exhibit P10 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT ISSUED BY THE POSTAL DEPARTMENT DATED 11.08.2021.

Exhibit P11 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 10.09.2021.