D.Prajaraj vs State Of Kerala
2022 Latest Caselaw 8823 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
        THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                        WP(C) NO. 20083 OF 2022
PETITIONER/S:

            D.PRAJARAJ
            AGED 63 YEARS
            S/O. DAMODARAN, CONTRACTOR, RESIDING AT THUNDIL RAJ
            BHAVAN, OLIPPIL PUTHIYAKAVU, KILIMANOOR,
            THIRUVANANTHAPURAM - 695 601.
            BY ADV K.M.MUHAMMED HUSSAIN


RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT
            DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
            695 001.
    2       THE KERALA INSTITUTE OF LOCAL ADMINISTRATION,
            REPRESENTED BY ITS CHIEF MANAGER, KILA REGIONAL CENTRE,
            KUMARAPURAM, THIRUVANANTHAPURAM, PIN 695 011.
    3       THE CHIEF MANAGER,
            KILA REGIONAL CENTRE, KUMARAPURAM, THIRUVANANTHAPURAM,
            PIN 695 011.
    4       THE ASSISTANT EXECUTIVE ENGINEER,
            LSGD SUB - DIVISION, KILIMANOOR BLOCK PANCHAYATH,
            KILIMANOOR P.O, THIRUVANANTHAPURAM, PIN 695 601.
    5       THE ASSISTANT ENGINEER,
            LSGD ENGINEERING WING, PALLICKAL GRAMA PANCHAYATH,
            THIRUVANANTHAPURAM, PIN-695 604 .
            BY ADV V.A.MUHAMMED


OTHER PRESENT:

            GP AMMINIKUTTY K


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 20083 OF 2022
                                              2

                                      JUDGMENT

Dated this the 7th day of July, 2022

The petitioner was awarded the contract for construction of building

in the Government H.S.S, Pallikkal. He executed Ext.P1 agreement on

4.6.2021, as per term of which, the petitioner had to complete the

construction within nine months. The site was not handed over to the

petitioner in time and the drawing were not approved by the 3 rd

respondent. As a result, the petitioner was not able to commence the

work. While so, the petitioner was served with Ext.P6 proposing to

terminate the contract at the petitioner's risk and cost. Thereupon,

petitioner filed Ext.P8 representation stating the reasons for not

commencing / completing the work as per schedule and requested to

relieve him without risk and cost and to refund the security amount

deposited.

2.Learned counsel of the petitioner points out that the reasons for

delay in commencing the work and the request for withdrawal were

pointed out in Ext.P5, much before Ext.P6. Attention is drawn to Clause 3A

of the General Conditions of Contract which reads as under:-

"In case, the work cannot be started due to reasons not within the control of the contractor within 1/8 th of the stipulated time for completion of work or one month whichever is higher, either party may close the contract by giving notice to the other party stating the reasons. In such eventuality, the Performance Guarantee of the contractor shall be refunded within following time limits:

a) Tendered value of work is up to Rs.1 Crore 15 days

b) If the Tendered value of work is more than Rs.1 Crore and up to Rs.10 Crore 21 days C) If the Tendered value of work exceeds Rs.10 Crore: 30 days Neither party shall claim nay compensation for such eventuality.

WP(C) NO. 20083 OF 2022

This Clause is not applicable for any breach of the contract by either party."

It is contended that, in view of the aforementioned Clause, the

petitioner is liable to be relieved from the contract, without risk and cost.

4.Learned Standing counsel for respondents 2 and 3 submitted that

all relevant aspects were taken into consideration before issuing Ext.P6.

Learned Government Pleader also supported the above argument.

Inasmuch as the petitioner has submitted Ext.P8 representation,

detailing the circumstances which made the contract impossible of

performance, it is only appropriate for the authorities to consider the

representation and take a decision thereon.

The writ petition is hence disposed of, directing the 3 rd respondent to

consider Ext.P8 and take a reasoned decision thereon after issuing notice

to the petitioner. The decision, as directed above, shall be taken within one

month. Till such time, coercive action, if any proposed against the

petitioner, shall be kept on hold.

Sd/-

V.G ARUN JUDGE

SJ WP(C) NO. 20083 OF 2022

APPENDIX OF WP(C) 20083/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PORTION OF THE AGREEMENT DATED 04.6.2021 .

Exhibit P2 A TRUE COPY OF THE COMMUNICATION DATED 16.10.2021 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.

Exhibit P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT SEEKING APPROVAL OF THE DRAWINGS DATED 12.11.2021.

Exhibit P4 THE TRUE COPY OF THE COMMUNICATION SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 16.11.2021.

Exhibit P5 TRUE COPY OF THE LETTER DATED 27-01-2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT .

Exhibit P6 TRUE COPY OF THE LETTER DATED 09.05.2022 ISSUED BY THE 3RD RESPONDENT.

Exhibit P7 TRUE COPY OF THE RELEVANT PORTION OF THE GENERAL CONDITIONS OF CONTRACT.

Exhibit P8 TRUE COPY OF THE REPLY DATED 12.5.2022. Exhibit P9 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.

21159 OF 2021 DATED 17-01-2022.