Kerala High Court
Fayis M.D vs Secretary To Government on 2 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022/13TH MAGHA, 1943
WP(C) NO. 396 OF 2022
PETITIONER:
FAYIS M.D.
AGED 39 YEARS
S/O.M.D.ABDULLA, P.W.D.CONTRACTOR,
BERKKA HOUSE, CHENGALA P.O.,
KASARGOD - 686 605.
BY ADV K.A.MANZOOR ALI
RESPONDENTS:
1 SECRETARY TO GOVERNMENT
PUBLIC WORKS (PS) DEPARTMENT,
THIRUVANANTHAPURAM - 695 121.
2 THE CHIEF ENGINEER (ROAD)
PUBLIC WORKS DEPARTMENT,
THIRUVANANTHAPURAM - 695 001.
3 THE SUPERINTENDING ENGINEER
PUBLIC WORKS DEPARTMENT, KOZHIKODE - 673 647.
4 EXECUTIVE ENGINEER
PUBLIC WORKS DEPARTMENT, NIRATH SECTION,
PERAMBRA, PIN - 673 525.
5 ASSISTANT ENGINEER
PUBLIC WORKS DEPARTMENT, NIRATH SECTION,
PERAMBRA, PIN - 673 525.
SRI.K.V.MANOJKUMAR, SR.GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.396/2022
:2:
N. NAGARESH, J.
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W.P.(C) No.396 of 2022
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Dated this the 2nd day of February, 2022
JUDGMENT
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The petitioner, who is a PWD Contractor, has
approached this Court seeking to quash Exts.P14 order and
Ext.P16 tender and to direct the 3rd respondent to return the
Security Deposit made by the petitioner before the 3 rd
respondent without delay and without deducting any amount
including the risk and cost, in the interest of justice. The
petitioner has also sought for certain other incidental reliefs.
2. The petitioner states that he was awarded with the
improvement work of Vadakkumpad-Vanchippara-
Gopurathilidam Road between 0/000 and 3/300 under the
control of the 3rd respondent-Superintending Engineer,
PWD. The Work Agreement was executed on 10.12.2019.
W.P.(C) No.396/2022
The worksite was handed over on 19.12.2019. The work had
to be completed on or before 18.08.2020. The petitioner
states that the original estimate was for constructing the road
of a width of 3.8 metres. When the work was about to start,
the local residents and beneficiaries demanded the
authorities to have 5.5 metres tarring width, with 8 metres
ROW. As there was no official communication in this regard,
the work could not be started.
3. The petitioner on 16.07.2020, requested the 5 th
respondent to take action for removal of electric poles. The
issues were not resolved. Later, the period of work was
extended up to 30.04.2021. As there was no revised
proposal, the petitioner could not start the work. In the
meanwhile, General Elections were declared and the District
Collector required to stop all works. Ext.P1 letter was issued
on 15.03.2021. The Assistant Executive Engineer, however,
issued Ext.P2 letter dated 24.03.2021 to the petitioner
threatening that he would recommend legal action for failure
to complete the work.
W.P.(C) No.396/2022
4. The petitioner states that later, the Changaroth
Grama Panchayat decided to enhance the tarring width of
the road to 5.5 metres. The said decision was taken at the
intervention of the road beneficiaries and the local MLA. Yet,
the issue was not finalised. On 23.07.2021, by Ext.P3, the
petitioner informed the 5th respondent that he is willing to
construct the road with 3.5 metres width but the local
residents are not permitting to do the work. The petitioner
expressed his inability to do the work in Ext.P3. The
respondents but pressurised the petitioner to complete the
work. The petitioner submitted Ext.P4 letter dated
06.08.2021 to the 4th respondent requesting to extend the
work till 20.04.2021 with fine. The petitioner could not start
the work as the revised estimate was not sanctioned.
5. The petitioner again submitted Ext.P9 letter dated
27.10.2021 requesting to extend the time to complete the
work till 31.03.2022. To Ext.P9, the 3 rd respondent issued
Ext.P10 letter dated 12.11.2021 stating that the work would
be retendered at the risk and cost of the petitioner. The 4 th
W.P.(C) No.396/2022
respondent as per Ext.P11, informed the 2 nd respondent that
the work is in progress and revised estimate may be
approved. The 3rd respondent, however, unilaterally
terminated the contract at the risk and cost of the petitioner
as per Ext.P14 communication dated 04.12.2021. The
petitioner submitted Ext.P15 appeal dated 06.12.2021 to the
2nd respondent. Without considering Ext.P15 appeal, Ext.P16
re-tender notification was published on 05.01.2022.
6. The learned counsel for the petitioner argued that
initially the work could not be commenced due to the
obstructions made by beneficiaries of the road. Covid-19
lockdown was also imposed during this time. The work was
resumed in July, 2021. But, by then, the Grama Panchayat
passed a resolution recommending to widen the road to 5.5
metres. Apart from these uncertainties, utilities were not
removed from the worksite. In the meanwhile, the work could
not be proceeded with from 12.03.2021 to 07.04.2021 due to
general elections.
W.P.(C) No.396/2022
7. The learned counsel for the petitioner pointed out
that even the communications between the respondents
would establish that there was a proposal for widening the
road. The issue was not finalised and revised estimate was
not approved. The petitioner had mobilised all requisite men
and material to carry out the work. The work could not be
proceeded with for the aforesaid reasons. The petitioner had
brought to the notice of the respondents the afore facts. The
respondents did not take any decision. The contract with the
petitioner was arbitrarily terminated at the risk and cost of the
petitioner. The termination of the contract at the risk and cost
of the petitioner and the re-tendering of the work are highly
illegal, arbitrary and unsustainable.
8. Respondents 3 and 5 filed a counter affidavit
contesting the contentions of the petitioner. They submitted
that Ext.P14 communication would show the circumstances
under which the agreement had to be cancelled. The
petitioner was lethargic from the very beginning. The
petitioner even delayed execution of agreement. The time
W.P.(C) No.396/2022
granted for completion of the work was extended imposing
fine, which obviously would show that the petitioner was at
fault.
9. It was the duty of the petitioner to take initial
levels. The petitioner did not take any steps to take initial
levels even after six months. The petitioner cannot be heard
to complain that utilities were not shifted. As per the
agreement and the PWD Manual, shifting of utilities is a paid
item and it is the duty of the contractor to take initiatives for
the same. The agreement was executed on 10.12.2019. The
work had to be completed within eight months. The execution
of the work ought to have been completed by 18.08.2020.
The petitioner was granted extension more than once. The
contract was terminated only on 04.12.2021. In the facts and
circumstances of the case, termination of the agreement at
the risk and cost of the petitioner is amply justified,
contended the Senior Government Pleader.
10. Heard the learned counsel for the petitioner and
the learned Senior Government Pleader representing the
W.P.(C) No.396/2022
respondents.
11. The issue arising in the writ petition is as to who is
responsible for the delay in executing the work. Admittedly,
the worksite was handed over to the petitioner on
19.12.2019. It is the allegation of the petitioner that
beneficiaries of the road and local residents obstructed the
work. The petitioner would also take umbrage under the
Covid-19 lockdown for non-execution of the work. The
petitioner would, however, submit that the work was resumed
in July, 2021. Thereafter, the work had to be stopped in view
of the resolution of the Grama Panchayat recommending
widening of the road.
12. The said contention of the petitioner cannot be
accepted. The petitioner had executed agreement with the
respondents. The respondents have been time and again
requiring the petitioner to proceed with the work. Any
decision taken by the beneficiaries of the road or the local
MLA or any demand made by them for widening the road,
cannot be an excuse for the petitioner not to proceed with the
W.P.(C) No.396/2022
work. As long as the respondents have not required the
petitioner to stop the work, the petitioner ought to have
proceeded with the work. The petitioner also cannot rely on
any resolution passed by the Panchayat for widening the
road or on any interdepartmental communications between
the respondents on the proposed revision of estimates, for
not carrying out the work.
13. It is true that elections were declared in the
meanwhile and the petitioner could not have proceeded with
the work from 12.03.2021 to 07.04.2021. The said period is
less than three months. The petitioner has delayed work by
more than 15 months. The petitioner was granted extension
of time for completion of the works. Yet, the petitioner did not
complete the work. A perusal of the pleadings in the writ
petition and the documents made available, would amply
show that the petitioner was not at all vigilant in executing the
work within the time stipulated in the contract or even within
the extended time.
W.P.(C) No.396/2022
In the facts and circumstances of the case, this
Court finds no reason to interfere with Ext.P14 or Ext.P16.
The writ petition is devoid of any merit and it is hence
dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/31.01.2022
W.P.(C) No.396/2022
APPENDIX OF WP(C) 396/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE LETTER DATED 15/3/21
ISSUED BY THE 5TH RESPONDENT.
Exhibit P2 TRUE COPY OF THE LETTER DATED 24/3/21
ISSUED BY THE ASSISTANT EXECUTIVE
ENGINEER, KOZHIKODE TO THE PETITIONER.
Exhibit P3 TRUE COPY OF THE LETTER DATED
23/7/2021 ISSUED BY THE PETITIONER TO
THE 3RD RESPONDENT.
Exhibit P4 TRUE COPY OF THE LETTER DATED 6/8/2021
SUBMITTED BY THE PETITIONER TO THE 4TH
RESPONDENT.
Exhibit P5 TRUE COPY OF THE LETTER DATED
12/8/2021 SEND BY THE PETITIONER TO
THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF THE LETTER DATED 2/9/2021
ISSUED TO THE PETITIONER BY THE 5TH
RESPONDENT.
Exhibit P7 TRUE COPY OF THE LETTER DATED
13/10/2021 SEND BY THE 5TH RESPONDENT.
Exhibit P8 TRUE COPY OF THE LETTER DATED
20/10/2021 ISSUED BY THE 1ST
RESPONDENT TO THE 2ND RESPONDENT.
Exhibit P9 TRUE COPY OF THE REQUEST DATED
27/10/2021 SEND TO THE 3RD RESPONDENT
BY THE PETITIONER.
Exhibit P10 TRUE COPY OF THE LETTER DATED
12/11/2021 ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER.
Exhibit P11 TRUE COPY OF THE LETTER DATED
20/11/2021 SEND TO THE 2ND RESPONDENT
BY THE 4TH RESPONDENT.
Exhibit P12 TRUE COPY OF THE LETTER DATED
20/11/2021 ISSUED BY THE PETITIONER TO
THE 3RD RESPONDENT.
Exhibit P13 TRUE COPY OF THE LETTER DATED
27/11/2021 ISSUED BY THE PETITIONER TO
THE 3RD RESPONDENT.
W.P.(C) No.396/2022
Exhibit P14 TRUE COPY OF THE PROCEEDINGS DATED
4/12/2021 OF THE 3RD RESPONDENT.
Exhibit P15 TRUE COPY OF THE REVIEW PETITION DATED
6/12/2021 FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
Exhibit P16 TRUE COPY OF THE TENDER DATED
05/01/2022.
P17 COPY OF JUDGMENT IN WPC.5972/2016 DT
20.1.2021
