Kerala High Court
T.A.Xavier vs Ottapalam Municipality on 28 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
WP(C) NO. 6117 OF 2021
PETITIONER:
T.A.XAVIER,
AGED 73 YEARS
S/O. AUGUSTINE, CONTRACTOR,
M/S. T.A.XAVIER AND SONS,
THAREPARAMBIL HOUSE, PALLURUTHY P.O.,
KOCHI-682 006
BY ADVS.
BABU JOSEPH KURUVATHAZHA
SRI.M.G.SREEJITH
RESPONDENTS:
1 OTTAPALAM MUNICIPALITY
OTTAPPALAM P.O.,
PALAKKAD DISTRICT,PIN-679 101,
REPRESENTED BY ITS SECRETARY
2 OTTAPPALAM MUNICIPAL COUNCIL,
OFFICE OF THE OTTAPPALAM MUNICIPALITY,
OTTAPPALAM P.O.,
PALAKKAD DISTRICT,PIN-679 101,
REPRESENTED BY ITS CHAIRPERSON
3 MUNICIPAL ENGINEER,
OTTAPPALAM MUNICIPALITY, OTTAPPALAM P.O.,
PALAKKAD DISTRICT,PIN-679 101
4 SUPERINTENDING ENGINEER,
GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA),
KADAVANTHRA, ERNAKULAM, KOCHI-682 020
W.P.(C) No.6117/2021
:2:
BY ADVS.
SRI.P.P.THAJUDEEN, SC, OTTAPALAM MUNICIPALITY
SRI.VIPIN VARGHESE
SHRI.SREESANKAR.M
M.V.BOSE
VINOD MADHAVAN
P.M.MAZNA MANSOOR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.6117/2021
:3:
N. NAGARESH, J.
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W.P.(C) No.6117 of 2021
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Dated this the 28th day of June, 2022
JUDGMENT
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The petitioner, who is a Contractor by profession,
has approached this Court seeking to command respondents
1 to 3 to sanction and disburse the entire amount of
₹49,62,247/-, the subject matter of Exts.P4 and P4(a). The
petitioner further seeks to command respondents 1 to 3 to
get revised technical sanction from the 4 th respondent for the
23 items of work for which payment has been deferred as
detailed in Ext.P4(a).
2. The petitioner states that the construction work of
Municipal Bus Stand / Shopping Complex of Ottapalam
Municipality was given to the petitioner. The petitioner
satisfactorily completed the work by 08.10.2018. The
W.P.(C) No.6117/2021
petitioner states that as per the tender conditions, the 1 st
respondent had to sanction and disburse 75% of the
payment in advance. The estimated PAC of the work was
₹19,97,59,931/-. The 4 th respondent subsequently revised
the technical sanction as per Ext.P2(a) for the value of
₹19,77,59,931/-.
3. After completion of the work, measurements were
taken and the total bill amount was computed as
₹19,78,23,898/-. There was a difference of ₹63,967/- in
comparison to the amount of ₹19,77,59,931/- for which
technical sanction was accorded.
4. The petitioner states that the total value of 11 th
part and final bill was ₹49,62,247/-. In the final bill, 23 works
had exceeded its quantity. However, there was no change in
the fixed rate for the 23 items of work. The respondents can
very well sanction the amount for those 23 items along with
the final bill, without awaiting technical sanction of the 4 th
respondent, contends the petitioner. However, against the
amount of ₹49,62,247/-, approval was given for disbursing
W.P.(C) No.6117/2021
only ₹9,03,066/-. The payment of ₹40,59,181/- was deferred
by respondents 1 to 3. Along with 6% service tax, the
amount due to the petitioner under the 11 th part and final bill
would be ₹43,02,732/-.
5. The petitioner submitted Ext.P5 representation on
12.12.2019 requesting to sanction the payment for those 23
works. Ext.P7 is the last representation submitted by the
petitioner on 27.11.2020. The respondents have not cared
to settle the bills of the petitioner so far, contends the
petitioner.
6. The 1st respondent-Municipality filed a statement
dated 14.06.2022. The 1st respondent submitted that the
Municipality has prepared the revised estimate and
submitted before the GCDA for technical sanction in
compliance with all procedural formalities. Technical sanction
is not obtained till date. The Municipality can allow the final
bill only in compliance of legal formalities which mandate
technical sanction for the revised estimate for the work
carried out in variation to the sanctioned estimate.
W.P.(C) No.6117/2021
7. The petitioner is an experienced contractor and he
has executed the work and is well aware that payment for the
extra work in variance with the sanctioned estimate can be
given only after obtaining technical sanction. The petitioner is
aware that the procedure for obtaining the technical sanction
is time consuming. The Municipality has not done anything
against the interest of the petitioner. The Municipality has
taken all steps for obtaining the technical sanction.
8. The technical sanction for revised estimate is
expected soon and steps for allowing the final bill will be
taken immediately thereafter. Ext.P9 relied on by the
petitioner is not applicable to the facts of this case. The
petitioner is not entitled for the order in Ext.P8 as the issue in
both the cases is not identical, contended the 1st respondent.
9. The Standing Counsel entered appearance on
behalf of the 4th respondent. On behalf of the 4 th respondent,
it was submitted that the Superintending Engineer of the
GCDA is on leave for a period of three months and the issue
of giving technical sanction to the revised bill, can be
W.P.(C) No.6117/2021
resolved only after a period of three months. According to
the Standing Counsel, there is no person competent in the
GCDA to give approval to the revised estimate.
10. I have heard the learned counsel for the petitioner
and the respective learned Standing Counsel representing
respondents 1 to 3 and the 4th respondent.
11. The petitioner has undertaken the work of
construction of Municipal Bus Stand / Shopping Complex for
Ottapalam Municipality. This was in the year 2016. The
petitioner completed the work to the satisfaction of
respondents 1 to 3. During the construction, the petitioner
had to execute 23 works which had exceeded its quantity.
These works were not extra works, but only exceeded works.
In fact, a supplementary agreement was executed as is
evident from Ext.P4(a), in respect of these works.
12. There is no dispute that the work entrusted to the
petitioner by respondents 1 to 3, was carried out by the
petitioner to the satisfaction of respondents 1 to 3.
Respondents 1 to 3 are not seriously disputing the eligibility
W.P.(C) No.6117/2021
of the petitioner to receive payments for the 23 exceeded
works. The difficulty expressed by respondents 1 to 3, is in
getting revised technical sanction for the afore works from
the 4th respondent.
13. On behalf of the 4th respondent, the Standing
Counsel would submit that revised estimate cannot be
sanctioned since the Superintending Engineer is on leave for
three months. In this regard, it is to be noted that it is the
specific case that he is entitled to 75% of the amount in
advance, as per the terms of the contract. The petitioner
also states that he has availed advances from various
sources for completing the work and the delay in payment
would cause undue hardship and loss to the petitioner.
14. This Court finds that the reason advanced by the
4th respondent for not approving the revised estimate, cannot
be a reason to delay the payments due to the petitioner. The
work undertaken by the petitioner was completed as early on
08.10.2018. When there is no complaint against the work of
the petitioner, the amount due to the petitioner has to be paid
W.P.(C) No.6117/2021
immediately. The fact that the Superintending Engineer,
GCDA, is on long leave, cannot be a reason to delay
payments to the petitioner.
In the facts and circumstances stated above, the
writ petition is disposed of directing the 4 th respondent and
the Greater Cochin Development Authority to consider grant
of approval for the revised estimates for advice forwarded by
respondents 1 to 3 and take a decision thereon within a
period of six weeks. Respondents 1 to 3 are directed to pay
the amount found due to the petitioner within a further period
of two weeks.
Sd/-
N. NAGARESH, JUDGE
aks/30.06.2022
W.P.(C) No.6117/2021
APPENDIX OF WP(C) 6117/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE AGREEMENT NO.35/11-12
DATED 5.3.2012 EXECUTED BETWEEN THE
1ST RESPONDENT AND PETITIONER
EXHIBIT P1A TRUE COPY OF THE TENDER DOCUMENT
PUBLISHED BY THE 1ST RESPONDENT,
INCLUDING FORM NO.83 OF THE TENDER
DATE 4.10.2008
EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE
MEETING HELD ON 24.2.2016., CHAIRED BY
THE HON'BLE MINISTER FOR LSGD
PERTAINING TO THE AUTHORITY TO ISSUE
THE TECHNICAL SANCTION
EXHIBIT P2A TRUE COPY OF THE REVISED TECHNICAL
SANCTION DATED 13.6.2016 ISSUED BY THE
4TH RESPONDENT, FOR THE VALUE OF
RS.19,77,59,931/-
EXHIBIT P3 TRUE COPY OF THE LETTER DATED
27.4.2016 ISSUED BY THE GOVERNMENT TO
THE VARIOUS MUNICIPAL SECRETARY/
CHAIRMAN, PERTAINING TO THE
SANCTIONING OF THE RATES
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE
11TH PART AND FINAL BILL OF THE WORK,
EXHIBIT P4A TRUE COPY OF THE DETAILS OF 23 ITEMS
OF WORK, WHEE VARIATIONS WERE OCCURRED
FROM THE ORIGINALLY ACCEPTED
SUPPLEMENTARY AGREEMENT SCHEDULE OF
WORK
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
13.12.2019 SUBMITTED BY THE PETITIONER
BEFORE THE RESPONDENTS 1 T0 3
EXHIBIT P6 TRUE COPY OF THE RESOLUTION NO.8 DATED
14.5.2020 TAKEN BY THE 2ND RESPONDENT
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED
27.11.2020 SUBMITTED BY THE PETITIONER
BEFORE THE RESPONDENTS 1 AND 2
Exhibit P8 TRUE COPY OF THE ORDER DATED
05/07/2021 IN W.P(C) 12896/2021
W.P.(C) No.6117/2021
Exhibit P9 TRUE COPY OF THE RELEVANT PORTION OF
STANDARD BID DOCUMENT FOR E-TRAINING,
PERTAINING TO CLAUSE 39.6, PUBLISHED
BY THE PUBLIC WORKS DEPARTMENT UNDER
THE GOVERNMENT OF KERALA, AS PER
G.O(P) 3/2017/PWD DATED 09/08/2017
