Kerala High Court
Concord Construction vs Kochi Metro Rail Ltd. - Kmrl on 14 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
WP(C) NO. 19141 OF 2022
PETITIONER:
CONCORD CONSTRUCTION,
HEAD OFFICE AT KALLATRA COMPOUND,
RAILWAY STATION ROAD, KANHANGAD,
KASARGOD DISTRICT PIN- 671 315,
REPRESENTED BY ITS PARTNER,
DR. KALLATRA ABDUL MUNEER
BY ADVS.
ALIAS M.CHERIAN
K.M.RAPHY
AJAI ALIAS CHALAPPURAM
BRISTO S PARIYARAM
RESPONDENTS:
1 KOCHI METRO RAIL LTD. - KMRL
JLN STADIUM METRO STATION, 4TH FLOOR KALOOR,
ERNAKULAM, PIN - 682017
REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE GENERAL MANAGER (PROJECTS),
KOCHI METRO RAIL LIMITED,
JLN STADIUM METRO STATION, 4TH FLOOR KALOOR,
ERNAKULAM, PIN - 682017
BY ADVS.
SC FOR KMRL: JAJU BABU (SR)
M.U. VIJAYALAKSHMI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 19141 OF 2022
2
JUDGMENT
Dated this the 14th day of June, 2022
The petitioner was awarded certain works by the
first respondent Kochi Metro Rail Limited (KMRL). The
works were awarded under Ext.P1 dated 12.04.2021.
According to the petitioner, due to adverse climatic
conditions and other factors, including the second
phase of COVID-19 pandemic and resultant lockdown,
the work did not progress as expected. This resulted
in the petitioner being issued with Ext.P5 notice dated
04.05.2022, granting the petitioner 14 days time to
offer explanation for the lack of progress, failing which
the contract will stand automatically terminated. The
petitioner submitted Ext.P7 explanation, pointing out
various reasons for not completing the work as per
schedule. As the explanation was not satisfactory, the
petitioner was issued with Ext.P8, informing that the
termination had come into effect on expiry of 14 days
from the date of issuance of Ext.P5 and that in
furtherance of the termination, KMRL intends to
WP(C) NO. 19141 OF 2022
conduct inspection of the site and prepare an
inventory of the works completed and pending. This
writ petition is filed challenging Ext.P8, primarily on
the ground that the petitioner was not afforded an
opportunity of hearing before passing the order.
2. Learned Counsel for the petitioner submitted
that, had the petitioner been given an opportunity of
hearing, he would have been able to convince the
officials of the respondents that, the delay in
completion of the work was for reasons beyond the
petitioner's control. It is further contended that,
having granted 14 days time under Ext.P5 and the
petitioner having availed such opportunity by
submitting a detailed explanation, it was only
appropriate for the respondents to have considered
the explanation and heard the petitioner before
passing Ext.P8.
3. Learned Senior Counsel appearing for the
respondents submitted that the respondents were
compelled to terminate the contract, on finding that
WP(C) NO. 19141 OF 2022
not even 5% of the work had been completed as per
schedule. Moreover, in spite of being granted
opportunity by extending the contract period, the
recalcitrance on the petitioner's part continued. As
further delay in completing the work would cause
substantial prejudice not only to the respondents but
to the public at large, the contract had to be
terminated. Hence the proceedings under Exts.P5
and P8.
4. Having heard the learned Counsel on either
side, I find merit in the contention that, having been
issued with Ext.P5 granting 14 days time for offering
explanation and the petitioner having offered Ext.P7
explanation, it is only proper for the respondents to
afford an opportunity of hearing to the petitioner
before taking the final decision. In that view of the
matter, Ext.P8 order is directed to be treated as a
show cause notice and the petitioner afforded an
opportunity of hearing before proceeding further.
In the result, the writ petition is disposed of,
WP(C) NO. 19141 OF 2022
directing the respondents to consider Ext.P8 as a
show cause notice and afford an opportunity of
hearing to the petitioner before taking further
proceedings based on Ext.P8. For that purpose, the
petitioner shall be issued with a notice, specifying the
date and time on which authorised representative of
the petitioner should appear for hearing. On such
appearance, competent officer of the respondents
shall hear the petitioner's version. Once such
opportunity is given, appropriate orders can be
passed within two weeks.
Sd/-
V.G.ARUN
JUDGE
NB/14-6
WP(C) NO. 19141 OF 2022
APPENDIX OF WP(C) 19141/2022
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF LETTER OF AWARD NO.
KMRL/PROCUREMENT/LOA/2021-22/02 DATED
12/04/2021 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P2 TRUE COPY OF NOTICE TO PROCEED NO.
KMRL/PRJ/GMP/KNCO2/449/2020/1187 DATED
28/04/2021 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P3 TRUE COPY OF LETTER NO. KMRL/PRJ/GMP/ 449/2020/
KNCO2/1756 DATED 09.03.2022 ISSUED THE 1ST
RESPONDENT
EXHIBIT P4 TRUE COPY OF LETTER NO CC/KMRL/BD/150/1273/
2022 DATED 12.03.2022 ISSUED BY THE PETITIONER
EXHIBIT P5 TRUE COPY OF NOTICE OF TERMINATION OF CONTRACT
NO. KMRL/PRJ/GMP/449/2020/ KNC02/1862 DATED
04/05/2022 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P6 TRUE COPY OF RELEVANT PAGES OF THE CONTRACT NO:
KMRL/PRJ/GMP/449/2020/KNC02- TENDER DOCUMENTS,
VOLUME 2 OF GENERAL CONDITIONS OF CONTRACT OF
KOCHI METRO RAIL LIMITED
EXHIBIT P7 TRUE COPY OF REPLY NO CC/KMRL/BD/150/1331/ 2022
DATED 13/05/2022 GIVEN BY THE PETITIONER
EXHIBIT P8 TRUE COPY OF ORDER OF TERMINATION BEARING NO
KMRL/PRJ/GMP/449/2020/KNC02/1899 DATED
04/06/2022 ISSUED BY THE 2ND RESPONDENT
RESPONDENTS EXHIBITS: NIL
TRUE COPY
P.A. TO JUDGE
