Tomco Engineering (P) Ltd vs Kerala Water Authority
2022 Latest Caselaw 6803 Ker

            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. 15418 OF 2022
PETITIONER/S:

             TOMCO ENGINEERING (P) LTD.
             PALANATTIL, KUNNACKAL.P.O., MUVATTUPUZHA.
             REPRESENTED BY ITS MANAGING DIRECTOR, PIN -
             682316
             BY ADVS.
             P.SHANES METHAR
             N.KRISHNA PRASAD
             S.RAMESH BABU (SR.)

RESPONDENT/S:

     1       KERALA WATER AUTHORITY
             JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM.
             REPRESENTED BY ITS MANAGING DIRECTOR, PIN -
             695033
     2       THE CHIEF ENGINEER (SOUTHERN REGION)
             KERALA WATER AUTHORITY, O/O. CHIEF ENGINEER,
             THIRUVANANTHAPURAM., PIN - 695033
     3       SUPERINTENDING ENGINEER (PH CIRCLE
             THIRUVANANTHAPURAM)
             O/O. SUPERINTENDING ENGINEER, KERALA WATER
             AUTHORITY, THIRUVANANTHAPURAM, PIN - 695033
     4       KERALA INFRASTRUCTURE INVESTMENT FUND BOARD
             (KIIFB)
             2ND FLOOR, FELICITY SQUARE, M G ROAD, STATUE,
             THIRUVANANTHAPURAM.
             REPRESENTED BYU ITS CHIEF EXECUTIVE OFFICER,
             PIN - 695001
             BY ADV P.M.JOHNY

OTHER PRESENT:

             SC FOR KIIFB S. CHANDRASEKHARAN NAIR
         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   14.06.2022,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C) No.15418 of 2022

                                   -2-



                                JUDGMENT

Dated this the 14th day of June, 2022

The petitioner was awarded the work of

'Rehabilitation of Existing Pipe-Transmission

main with MS Pipe from Peroorkada to Manvila,

including inter connection and allied works, as

per Ext.P2 selection notice dated 14.01.2020.

The work involved procurement, supply, laying,

testing and commission of pipes of various

dimensions and road restoration. Accordingly, the

petitioner executed Ext.P3 agreement on

05.02.2020. Although, time for completion of the

work was fixed as 12 months, the site was handed

over only on 11.01.2021, two days prior to the

expiry of the 12 months. Immediately thereafter,

the second wave of Covid-19 pandemic hit the

State, resulting in another lockdown. On account

of the delay, it became necessary to execute a

supplementary agreement, which the petitioner did W.P.(C) No.15418 of 2022

under protest. Based on the agreement, the time

for completion of the work was extended up to

30.03.2022. Even thereafter, the petitioner

faced lot of impediments and difficulties in

executing the work. The petitioner therefore

filed Ext.P7 representation requesting the third

respondent to take a meaningful and pragmatic

view of the circumstances and consider the rate

revision proposed by the petitioner. Thereafter,

a meeting was convened in the Chamber's of the

third respondent on 04.02.2022. The discussions

in the meeting and the decisions thereon are

recorded in Ext.P8 minutes. The petitioner has a

complaint that Ext.P8 does not fully appreciate

the concerns raised in Ext.P7 representation and

put forth during the course of the meeting.

Accordingly, this writ petition is filed seeking

various reliefs, include.0ing a direction to the

third respondent to submit a report on the basis

of the decision at Ext.P8, before the Managing W.P.(C) No.15418 of 2022

Director of the first respondent within a time

frame.

2. Learned Senior Counsel appearing for the

petitioner submitted that, for the present, the

petitioner will be satisfied with a direction to

the third respondent to submit the report at the

earliest. Attention is drawn to the relevant

portion of Ext.P8, extracted hereunder for easy

reference;

"After detailed discussion Superintending Engineer directed the contractor to complete maximum work using additional work force within the extended period. Also informed that as per NIT, price escalation could not be allowed. But the sanctioned estimate was based on DSR 2016 and the acceptable rate was 10.5% below the tendered PAC. Hence considering the apprehensions pointed out by the contractor vide points 11,12,13,15,&16,18, 19 and 20, assured that the detailed report will be submitted to higher authority for a decision due to the following reasons."

3. Heard the learned Standing Counsel for

the respondents also.

W.P.(C) No.15418 of 2022

Considering the limited relief sought, the

writ petition is disposed of directing the third

respondent to prepare a report in terms of the

decisions recorded in Ext.P8 minutes and to place

it before the Board of the first respondent

expeditiously. Thereupon, the Board may consider

the suggestions in the report and take an

appropriate decision. Until then, no coercive

action shall be initiated against the petitioner.

Sd/-

V.G.ARUN JUDGE Scl/14.06.2022 W.P.(C) No.15418 of 2022

APPENDIX OF WP(C) 15418/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE E-TENDER- NO.47/2018-

19/KWA/PHC/D5/TVM ISSUED BY THE 3RD RESPONDENT Exhibit P2 TRUE COPY OF THE SELECTION NOTICE NO.

KWA/PHC/TVM/D5/6528/2015 DATED 14.01.2020 ISSUED BY THE 3RD RESPONDENT Exhibit P3 TRUE COPY OF THE WORKS AGREEMENT NO.20/2019 DATED 05/02/2020 Exhibit P4 TRUE COPY OF THE ACKNOWLEDGMENT - SITE HANDING OVER Exhibit P5 TRUE COPY OF THE SUPPLEMENTAL AGREEMENT NO.01/2021 DATED 19.11.2021 Exhibit P5(A) TRUE COPY OF THE LETTER DATED 19.11.2021 SUBMITTED BY THE PETITIONER Exhibit P6 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 27.10.2021 Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 9.12.2021 SUBMITTED BY THE PETITIONER Exhibit P8 TRUE COPY OF THE MINUTES OF THE MEETING DATED 4.02.2022