Kerala High Court
M/S. New Adharsh Builders vs State Of Kerala on 25 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
WP(C) NO. 28622 OF 2023
PETITIONER:
M/S. NEW ADHARSH BUILDERS, AGED 56 YEARS, MRA-332,
PLOT NO.M1, MAVELIPURAM COLONY, KAKKANAD, ERNAKULAM,
REPRESENTED BY ITS PARTNER, MARTIN K.V., PIN - 682030
BY ADVS.
MATHEW SKARIA
TOMY PAUL MAMPILLY
ANJANA VARGHESE
K.J.JOSEMON
JOY JOSEPH (MUNDACKAL)
THOMAS MATHEW (KOPPARA)
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, KERALA
PUBLIC WORKS DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE CHIEF ENGINEER, KERALA PUBLIC WORKS DEPARTMENT,
BUILDINGS DIVISION, PUBLIC OFFICE COMPLEX, MUSEUM
P.O., THIRUVANANTHAPURAM - 695033
3 THE SUPERINTENDING ENGINEER
O/O THE SUPERINTENDING ENGINEER, KERALA PUBLIC WORKS
DEPARTMENT, PWD BUILDINGS CENTRAL CIRCLE, T.B. ROAD,
THRISSUR, PIN - 680001
4 THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE
ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, BUILDINGS
DIVISION, DEVANKULANGARA, MAMANGALAM, EDAPPALLY., PIN
- 682024
5 THE ASSISTANT EXECUTIVE ENGINEER (BUILDINGS)
O/O THE ASST. EXECUTIVE ENGINEER , PWD BUILDINGS SUB
DIVISION, THRIKKAKARA., PIN - 682021
OTHER PRESENT:
SRI. K.V.MANOJ KUMAR, SR. GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 28622/2023 2
P. V. KUNHIKRISHNAN, J.
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WP(C).No.28622 of 2023
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Dated this the 25th day of August, 2023
JUDGMENT
The above writ petition is filed with the following prayers:
(i) Call for the records leading to Exhibit P11
termination Order No.C-4-2001/2020 dated 31-03-2022
and Exhibit P13 demand notice No.C4-2001-2020 dated
13/07/2022 issued by the 4th respondent and issue a writ
of certiorari and/or other appropriate writ, order or
direction, to quash/set aside Exhibit P11 termination
Order and Exhibit P13 demand notice issued by the 4th
respondent.
(ii) Declare that Exhibit P11 order of termination of
the Agreement issued by the 4th respondent, forfeiting
the Security and Additional Security Deposits amounting
to Rs.11,93,000/- and including the "risks and costs"
clause is illegal.
(iii) Issue a Writ of Mandamus or other appropriate
Writ, order or direction to the 4th respondent to issue a
direction to the 4th respondent to allow the Petitioner to
re-start, continue and complete the work by revising the
rates in accordance with the prevailing market rates (i.e.,
the present estimate rates less 7%) or in the alternative,
to pay the amount actually expended by him at the site
for commencing the work such as Load Test, Test Piling
and other expenses amounting to Rs.3,74,570/- related to
the initial work and materials involved with interest @
18% per annum and to return/release the documents
submitted by the petitioner towards the performance
Security Deposit, additional performance security
deposit, etc., amounting to Rs.11,93,850/- to the
petitioner and to remove the clause of "risk and costs"
from Exhibit P11 order of termination of the agreement.
(iv) Issue a Writ of Mandamus or other appropriate
Writ, order or direction to the 4th respondent, directing
him pass orders in Exhibit P12 representation submitted
by the petitioner in accordance with law, within a time
limit stipulated by this Hon'ble Court.
(v) Issue such other appropriate writs, order or
direction which this Hon'ble Court may deem fit and
proper in the interest of justice.
(vi) Dispense with production of English
translation of the documents in Malayalam language
produced along with the writ petition.
[SIC]
2. The petitioner was granted the work of construction of
school building for Government Junior Basic School, Kundannoor as
per Ext.P3. An agreement was executed on 14.10.2020. As per
Ext.P11, the contract was terminated on 31.03.2022. Thereafter,
recovery proceeding was initiated as evident from Ext.P13 notice
dated 13.07.2022. Now the petitioner is challenging the above
proceedings.
3. Heard learned Government Pleader also.
4. After hearing both sides, I am of the considered opinion that
this writ petition need not be retained here. Therefore, there can be
a direction to the 2nd respondent to consider Ext.P12 within a time
frame. The learned Government Pleader submitted that, there may
be a direction to consider only prayer no.3 in paragraph 11 of
Ext.P12. Therefore, I think a direction can be issued to consider
prayer no.3 in Ext.P12.
Therefore this writ petition is disposed of with the following
directions:
i) The 2nd respondent is directed to consider
and pass appropriate orders as far as the 3 rd prayer in
paragraph 11 of Ext.P12 is concerned as expeditiously as
possible, at any rate within one month from the date of
receipt of a copy of this judgment, after giving an
opportunity of hearing to the petitioner.
ii) The petitioner will produce a certified copy
of this judgment along with a copy of this writ petition
before the 2nd respondent for compliance.
Sd/-
P. V. KUNHIKRISHNAN
JUDGE
Sbna/
APPENDIX OF WP(C) 28622/2023
PETITIONER EXHIBITS
Exhibit 1 PHOTOCOPY OF THE ACKNOWLEDGEMENT OF
REGISTRATION OF FIRM WITH REGISTER
NO.2457/2008 DATED 28/11/2008 ISSUED FROM
THE REGISTRAR OF FIRMS
Exhibit P2 TRUE COPY OF THE LICENCE CARD ISSUED BY
THE SUPERINTENDING ENGINEER, ROADS CENTRAL
CIRCLE
Exhibit P3 TRUE COPY OF THE SELECTION NOTICE NO.C4-
2001/2020 DATED 25-09-2020 ISSUED BY THE
4TH RESPONDENT TO THE PETITIONER
Exhibit P4 TRE COPY OF THE ACKNOWLEDGEMENT FORM OF
HANDING OVER OF THE SITE DATED 21-10-2020
Exhibit P5 TRUE COPY OF THE LETTER DATED 06/01/2021
SUBMITTED BY THE PETITIONER BEFORE THE 5TH
RESPONDENT
Exhibit P6 TRUE COPY OF THE LETTER NO.D2-31/2021
DATED 10/03/2021 ISSUED BY THE 5TH
RESPONDENT TO THE PETITIONER
Exhibit P7 TRUE COPY OF THE SAID LETTER NO.18/21-22
DATED 02/08/2021 ISSUED BY THE
HEADMISTRESS OF THE GOVERNMENT JUNIOR
BASIC SCHOOL TO THE 4TH RESPONDENT
Exhibit P8 TRUE COPY OF THE LETTER DATED 03-08-2021
SUBMITTED BY THE PETITIONER BEFORE THE 4TH
RESPONDENT
Exhibit P9 TRUE COPY OF THE ORDER NO. C-4- 2001/20-21
DATED 30-09-2021 RECEIVED BY THE
PETITIONER ON 06-11-2021
Exhibit P10 TRUE COPY OF THE LETTER DATED 14-02-2022
GIVEN BY THE PETITIONER TO THE 4TH
RESPONDENT
Exhibit P11 TRUE COPY OF THE SAID ORDER NO.C-4-
2001/2020 DATED 31-03-2022 ISSUED BY THE
4TH RESPONDENT TO THE PETITIONER
Exhibit 12 TRUE COPY OF THE REPRESENTATION DATED
21/06/2022 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT
Exhibit P13 TRUE COPY OF THE DEMAND NOTICE NO.C4-2001-
2020 DATED 13-07-2022 ISSUED BY THE 4TH
RESPONDENT TO THE PETITIONER
