Kerala High Court

K.T.Francis vs State Of Kerala on 1 July, 2022

W.P.(C) No. 15054/2014              :1:



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

          FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944

                          WP(C) NO. 15054 OF 2014

PETITIONER:

     1        K.T.FRANCIS
              CONTRACTOR, KALLOOKKARAN TOWERS, ANGAMALY, ERNAKULAM
              DISTRICT (EXPIRED)

     2        ADDL.P2 TO P5 IMPLEADED:

               MARY FRANCIS
              AGED 73 YEARS
              W/O.LATE K.T. FRANCIS, KALLOOKKARAN TOWERS, ANGAMALY,
              ANGAMALY P.O., ERNAKULAM DISTRICT.

     3        ADDL.P3. REJI FRANCIS, AGED 52 YEARS,
              S/O.LATE K.T.FRANCIS, KALLOOKKARAN TOWERS, ANGAMALY,
              ANGAMALY P.O., ERNAKULAM DISTRICT.

     4        ADDL.P4. SHIJI JOE
              AGED 50 YEARS
              S/O.LATE K.T.FRANCIS, KALLOOKKARAN TOWERS, ANGAMALY,
              ANGAMALY P.O., ERNAKULAM DISTRICT.

     5        ADDL.P5. BELGY FRANCIS
              AGED 43 YEARS
              D/O.LATE K.T. FRANCIS KALLOOKKARAN, TOWERS, ANGAMALY,
              ANGAMALY P.O., ERNAKULAM DISTRICT.

              (ADDL.P2 TO P5 ARE IMPLEADED AS PER ORDER DATED 17.12.2021
              IN IA 1/2021.

              BY ADVS.
              SRI.BABU JOSEPH KURUVATHAZHA
              SRI.T.K.BIJU MANJINIKARA
              K.S.ARCHANA



RESPONDENT/S:

     1        STATE OF KERALA
 W.P.(C) No. 15054/2014           :2:


           REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF
           GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695 001.

    2      SECRETARY TO GOVERNMENT
           DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695 001.

    3      ANGAMALY MUNICIPALITY
           REPRESENTED BY ITS SECRETARY, ANGAMALY P.O., ERNAKULAM
           DISTRICT, PIN-683 572.

    4      ANGAMALY MUNICIPAL COUNCIL
           REPRESENTED BY ITS CHAIRMAN, ANGAMALY P.O., ERNAKULAM
           DISTRICT, PIN-683 572.

           BY ADVS.
           R1 & R2 BY SMT. K.R. DEEPA, SPL. GOVERNMENT PLEADER
           SRI.V.M.KURIAN, SC, ANGAMALY MUNICIPALITY
           R3 & R4 BY SRI. WILSON URMESE, SC
           SRI. P.P.THAJUDEEN, SC, ANGAMALY MUNICIPALITY



           R1 AND 2 - SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2022,

     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 15054/2014             :3:


                           SHAJI P. CHALY, J.
         ---------------------------------------------------------
                     W.P.(C). No. 15054 of 2014
          ---------------------------------------------------------
                     Dated this the 1st day of July, 2022.

                              JUDGMENT

The petitioner, a contractor, constructed the Municipal office

complex of Angamaly Municipality.

2. According to him, for no fault of himself, the construction

has prolonged; however, consequent to the extension of time made by

the Municipality, he completed the construction. According to the

petitioner, he suffered severe loss due to the prolonged and extended

construction due to the short comings on the part of the

Municipality.

3. It is submitted by the petitioner that taking into account the

said aspect, the Municipal Council has passed Ext. P8 resolution

recording that the petitioner is entitled to get enhanced amount for

the construction carried out, but sanction of the Government is

required in order to make any payment over and above the agreed

amount. It is apparent from the records produced along with writ

petition that the petitioner has filed various representations before the

Municipality as well as the State Government and sought

enhancement of the contract value on the basis of the several

notifications issued by the State Government in the matter of

enhancement of the agreed amount, if the contract work had

prolonged not due to the fault of the contractor.

4. The petitioner has also approached this Court by filing

various writ petitions and finally on the basis of a direction issued by

this Court in W.P.(C) No. 28383 of 2012 dated 14.06.2013, Ext. P37

order dated 04.01.2014 was passed by the Government declining the

claims raised by the petitioner for the enhancement of the contract

value. Various contentions are raised by the petitioner, including that,

even though the petitioner has produced various Government Orders

and sought the benefits of the same in Ext. P37 order, none of the said

aspects were considered by the Government and therefore, Ext. P37

order suffers from the vice of arbitrariness and illegality and

accordingly seeks interference of this Court exercising the power

conferred under article 226 of the Constitution of India .

5. I have heard learned counsel for the petitioner Sri. Babu

Joseph Kuruvathazha, learned counsel for the respondent Municipality

Sri. Wilson Urmese and the learned Special Government Pleader Smt.

K. R. Deepa, and perused the pleadings and materials on record.

6. On going through the voluminous records, I find that earnest

efforts were made by the petitioner to get the enhanced amounts

consequent to the delay in completing the work for no fault of the

petitioner. The petitioner has relied upon various Government

Orders issued under such circumstances enabling the contractors to

secure enhanced amounts from the Local Self Government

Institutions.

7. Anyhow, I am not going into such details, in view of the fact

that Ext. P37 order is a non speaking order, since in the

representation submitted before the Government, the petitioner has

sought for the benefit of various Government notifications; however,

none of those aspects were considered by the Government. For the

sake of convenience, Ext. P37 order is reproduced hereunder:

"GOVERNMENT OF KERALA Abstract

Local Self Government DepartmentJudgment of Hon'ble High Court in W.P.(C) No. 28383/2012 fied by Shri. KT.Franis complied win Orders issued.

===================================== LOCAL SELF GOVERNNENT (DC) DEPARTMENT

GO R) No. 57/2014/LSGD. Dated, Thiruvananthapuram, 04.01.2014 ===================================== Read: 1. Letter No. PW1/18O/01 dated, 13.02.2011 from the Secretary, Angamaly Municipality.

2. Government letter No. 13139/DC3/11/LSGD dated, 30.4.2012

3. GO (RI) 2709/2012LSGD dated, 26.9.2012. 4 Judgment dated, 14.6.2013 in WP (C) 28383/2012 filed by Shri. K.T. Francis.

6. Representation dated, 08.04. .2013 from Shri. K.T, Francis.

The Hon'ble High Court in ts Judgment read as 4th paper above ordered Government to consider Ext. P34 representation and pass appropriate order to withdraw and cancel Ext. 32 (b) and Ext. 33 read as paper 2nd and 3rd above. As per the letter read as 2nd paper above, Government have informed the Secretary, Angamaly Municipality that, there are no rules/guidelines to compensate the contractor by paying excess amount for delay occurred duo to various reasons except for the price increase in steel and cement and also informed not to entertain any such claims by the contractors in future. As per the Govt. Order read as 3rd paper above, Government has denied the

request of the petitioner for rate enhancement proposed by the Secretary, Angamaly Municipality as per the letter read as 1 st paper above.

As authorized. the Under Secretary, LSGD, heard the petitioner and representatives of Angamaly Municipality on 10.12.2013. After observing the arguments of the petitioner and the documents related to Et. P32(b) and Ext. P33, it is realized that, the G0 as per Ext. P33 was issued reiterating the facts of Ext. P(32)b in consultation with the Chief Engineer, LSGD.

In the circumstances, Govt. havé examined the matter in detail and hold out that there is no metit in canceling Ext. 32(b) and Ext. P33. Hence Ext. P33 Is still in order and no need to review it. Therefore tho request as made in Ext. P34 is hereby rejected.

The orders of the Hon'ble High Court in tho judginmant read above are thus complied with.

By order of the Governor,

ANITHA DAMODARAN Additional Secretary to Government."

8. Taking into consideration, the contentions raised by the

petitioner in the representation submitted before the Government

and the Government notifications produced along with the writ

petition, I am of the undoubted opinion that Ext. P37 order suffers

from the vice of arbitrariness and illegality, since it is a non speaking

order passed without taking into account the submissions made by the

petitioner in Ext. P34 representation and ignoring the Government

Orders issued in similar circumstances. It is also evident from Ext. P8

agenda note of the Panchayat that the Panchayat has approved the

claim raised by the petitioner for enhanced amount.

9. In that view of the matter, interference is required to Ext.

P37 impugned order and accordingly, I quash the same and direct the

State Government to reconsider the matter in accordance with law,

after providing a notice of hearing and participation to the petitioner

and the Municipality.

10. The petitioner is directed to produce all the beneficial

Government Orders before the Government for consideration along

with any additional representation, if any, within one month from the

date of receipt of a copy of this judgment. The proceedings shall be

finalised within two months thereafter.

sd/ SHAJI P. CHALY, JUDGE.

APPENDIX OF WP(C) 15054/2014

PETITIONER'S EXHIBITS:

EXT.P1 EXHIBIT P1 : TRUE COPY OF THE LETTER NO.P.W1.189/01 DT.26-7-2006 ISSUED BY R3.

EXT.P2 EXHIBIT P2 : TRUE COPY OF THE G.O.

(MS)NO.227/06/LSGD DT.4-10-2006 ISSUED BY THE GOVERNMENT.

EXT.P3 EXHIBIT P3 : TRUE COPY OF THE PROCEEDINGS NO.P.W1.189/01 DT.17-10-2006 OF R3.

EXT.P4 EXHIBIT P4 : TRUE COPY OF THE SELECTION NOTICE NO.PW1.189/01 DT.6-11-2006 ISSUED BY R3.

EXT.P5 EXHIBIT P5 : TRUE COPY OF THE 1ST PAGE OF ACKNOWLEDGMENT FORM OF HANDING OVER THE SITE TO THE PETITIONER.

EXT.P6 EXHIBIT P6 : TRUE COPY OF THE REPRESENTATION DT.23-1-2007 SUBMITTED BY THE PETITIONER BEFORE THE R3.

EXT.P7 EXHIBIT P7 : TRUE COPY OF THE RECEIPT ISSUED TO THE PETITIONER BY R3.

EXT.P8 EXHIBIT P8 : TRUE COPY OF THE AGENDA SLIP BEARING FILE NO.PW1-189/01 DT.4-2-2008 OF ANGAMALY MUNICIPALITY.

EXT.P9 EXHIBIT P9 : TRUE COPY OF THE REPRESENTATION DT.7-2-2008 SUBMITTED BY THE PETITIONER BEFORE R4.

EXT.P9(a) TRUE COPY OF THE RECEIPT DATED 07.02.2008 ISSUED TO THE PETITIONER FROM THE OFFICE OF THE 3RD RESPONDENT.

EXT.P10 EXHIBIT P10 : TRUE COPY OF THE RESOLUTION NO.11 DT.28-2-2008 PASSED BY R4.

EXT.P11 EXHIBIT P11 : TRUE COPY OF THE LETTER DT.24-3-2008 BEARING NO.P.W.D 189/01 FORWARDED BY THE R3 TO R1.

EXT.P12 EXHIBIT P12 : TRUE COPY OF THE GO(MS)NO.122/2008/LSGD DT.26-4-2008 ISSUED BY R1.

EXT.P13 EXHIBIT P13 : TRUE COPY OF THE RECEIPT DT.16-7-

2008 ISSUED TO THE PETITIONER BY R3.

EXT.P14 EXHIBIT P14 : TRUE COPY OF THE G.O.

(MS)NO.111/2009/LSGD DT.18-6-2009 ISSUED BY THE GOVERNMENT.

EXT.P15 EXHIBIT P15 : TRUE COPY OF THE CIRCULAR NO.63/2009/FIN.DT.3-8-2009 ISSUED BY THE GOVERNMENT.

EXT.P16 EXHIBIT P16 : TRUE COPY OF THE REPRESENTATION DT.17-11-2009 SUBMITTED BY THE PETITIONER BEFORE R3.

EXT.P17 EXHIBIT P17 : TRUE COPY OF THE REPRESENTATION DT.13-1-2010 SUBMITTED BY THE PETITIONER BEFORE R3.

EXT.P18 EXHIBIT P18 : TRUE COPY OF THE REPRESENTATION DT.2-2-2010 SUBMITTED BY THE PETITIONER BEFORE THE R3.

EXT.P19 EXHIBIT P19 : TRUE COPY OF THE RESOLUTION NO.5 DT.6-2-2010 OF R4.

EXT.P19(a) EXHIBIT P19A : TRUE COPY OF THE RELEVANT PORTION OF GO(MS)NO.21/97/PLG.DT.7-11-97 ISSUED BY THE GOVERNMENT.

EXT.P19(b) EXHIBIT P19B : TRUE COPY OF THE GO(MS)NO.249/07/LSGD DT.1-11-2007 ISSUED BY THE GOVERNMENT.

EXT.P20 EXHIBIT P20 : TRUE COPY OF THE NOTICE NO.PW1-

189/01 DT.10-2-2010 ISSUED BY R3.

EXT.P21 EXHIBIT P21 : TRUE COPY OF THE CERTIFICATE NO.PW1.189/01 DT.25-2-2010 ISSUED BY R3.

EXT.P22 EXHIBIT P22 : TRUE COPY OF THE REPRESENTATION DT.7-1-2011 SUBMITTED BY THE PETITIONER BEFORE THE R3.

EXT.P23 EXHIBIT P23 : TRUE COPY OF THE DECISION DT.12-1-

2011 OF THE MUNICIPAL LEVEL TECHNICAL COMMITTEE

OF ANGAMALY MUNICIPALITY.

EXT.P24 EXHIBIT P24 : TRUE COPY OF THE REPORT SUBMITTED BY THE MUNICIPAL ENGINEER OF ANGAMALY MUNICIPALITY.

EXT.P25 EXHIBIT P25 : TRUE COPY OF THE LETTER DT.13-2-2011 FORWARDED BY R3 TO R1.

EXT.P26 EXHIBIT P26 : TRUE COPY OF THE LETTER DT.14-3-2011 ISSUED BY R1.

EXT.P27 EXHIBIT P27 : TRUE COPY OF THE LETTER DT.21-3-2011 FORWARDED BY R3 TO R1.

EXT.P28 EXHIBIT P28 : TRUE COPY OF THE LETTER NO.36402/F1W.C3/11/FIN.DT.29-6-2011 ISSUED BY THE CHIEF TECHNICAL EXAMINER UNDER R2.

EXT.P29 EXHIBIT P29 : TRUE COPY OF THE REPRESENTATION DT.23-5-2011 SUBMITTED BY THE PETITIONER BEFORE THE R1.

EXT.P29(a) EXHIBIT P29A : TRUE COPY OF THE GO(RT) 1145/12/LSGD DT.18-4-12 ISSUED BY R1.

EXT.P30 EXHIBIT P30 : FEW ORIGINAL PHOTOGRAPHS OF THE BUILDING CONSTRUCTED BY THE PETITIONER FOR THE PURPOSE OF THE ANGAMALY MUNICIPALITY, WHICH WAS INAGURATED ON 2-8-2010.

EXT.P30(a) EXHIBIT P30A : TRUE COPY OF THE LETTER DT.1-11-

2012 ISSUED BY THE ASSISTANT GENERAL MANAGER OF SBT, ANGAMALY BRANCH.

EXT.P31 EXHIBIT P31 : TRUE COPY OF THE JUDGMENT DT.22-3-

2012 IN WPC NO.32803/2011 OF THIS HON'BLE COURT.

EXT.P32 EXHIBIT P32 : TRUE COPY OF THE JUDGMENT DT.7-6-

2012 IN RP NO.342/2012 IN WPC 32803/2011 OF THIS HON'BLE COURT.

EXT.P32(a) EXHIBIT P32A : TRUE COPY OF THE NOTICE NO.72232/DC3/2012/LSGD DT.3-9-2012 ISSUED BY R1.

EXT.P32(b) EXHIBIT P32B : TRUE COPY OF THE PROCEEDING NO.13139/DC3/2011/LSGD DT.30-4-2012 ISSUED BY R1.

EXT.P33 EXHIBIT P33 : TRUE COPY OF THE G.O.(RT) NO.2709/2012/LSGD DT.26-9-2012 ISSUED BY R1.

EXT.P34 EXHIBIT P34 : TRUE COPY OF THE REPRESENTATION DT.8-4-2013 SUBMITTED BY THE PETITIONER BEFORE THE R1.

EXT.P35 EXHIBIT P35 : TRUE COPY OF THE JUDGMENT DT.14-6-

2013 IN WPC 28383/2012 OF THIS HON'BLE COURT.