Saji Mathew vs State Of Kerala
2023 Latest Caselaw 10165 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
                     WP(C) NO. 3272 OF 2023
PETITIONER:

          SAJI MATHEW, S/O MATHAI T.M,
          AGED 49 YEARS, PWD CONTRACTOR,
          THENGUMTHOTTATHIL, KARAKKAMALA P.O.,
          MANANTHAVADY, WAYANAD DISTRICT - 670645

          BY ADVS.
          ABRAHAM MATHEW (VETTOOR)
          ANIL ABEY JOSE
          VISHNUJA P.M.


RESPONDENTS:

    1     STATE OF KERALA
          REP. BY CHIEF SECRETARY TO GOVERNMENT,
          GOVERNMENT SECRETARIAT
          THIRUVANANTHAPURAM - 695001

    2     THE PUBLIC WORKS DEPARTMENT,
          GOVERNMENT OF KERALA,
          REP. BY ITS SECRETARY,
          GOVERNMENT SECRETARIAT
          THIRUVANANTHAPURAM - 695001

    3     THE CHIEF ENGINEER
          OFFICE OF THE CHIEF ENGINEER,
          PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES),
          THUCADU, THIRUVANANTHAPURAM - 695014

    4     THE SUPERINTENDING ENGINEER
          PUBLIC WORKS DEPARTMENT,
          ROADS NORTH CIRCLE, MANACHIRA,
          KOZHIKODE - 673001

    5     THE EXECUTIVE ENGINEER
          OFFICE OF THE EXECUTIVE ENGINEER,
 WP(C) No.3272 of 2023                 2

             PUBLIC WORKS DEPARTMENT, ROADS DIVISION,
             WAYANAD, KALPETTA - 673121

     6       THE ASSISTANT EXECUTIVE ENGINEER,
             PUBLIC WORKS DEPARTMENT ROADS SUB DIVISION,
             MANANTHAVADY, WAYANAD - 670645

             BY   GOVERNMENT PLEADER SRI.RENJITH GEORGE



         THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.3272 of 2023                                3




                                VIJU ABRAHAM, J.
                .................................................................
                           W.P.(C) No.3272 of 2023
                .................................................................
               Dated this the 21st day of September, 2023


                                      JUDGMENT

The above writ petition is filed challenging Ext.P17 order passed

by the 5th respondent. It is seen that Ext.P17 order was issued pursuant

to the direction issued by this Court in Ext.P14 judgment.

2. The petitioner is a PWD contractor who had entered into

Ext.P1 agreement dated 09.09.2020 with the 4th respondent in respect of

work for providing BM and BC to Thalassery-Baveli Road from KM 86/00

to 93/00 in Wayanad District. Petitioner fully completed the work by

13.10.2021 on the strength of the extension granted up to 15.10.2021

without imposing any fine. The petitioner is entitled to get amounts on

account of price variation in bitumen during the agreement period. As per

Ext P2 calculation statement of the 6 th respondent, the amount due is

Rs.46,64,182/-. The request made by the petitioner was rejected by

Ext.P5 holding that the total amount including the differential cost of

bitumen is beyond the PAC. Petitioner submits that on the basis of

Exts.P6, P7, P8 and P9 Government orders, the claim of the petitioner is

only to be allowed. Petitioner submits that in Ext.P9 Government order it

is made clear that the said order is applicable for all ongoing works for

which agreements are executed after 01.11.2008 and therefore, the

petitioner is entitled to the benefit of the said order. The petitioner

submits that the claim raised by the petitioner is concluded by Exts.P10

and P11 judgments. On the basis of the same, it is the contention of the

petitioner that the issuance of Ext.P5, refusing to pay the amount legally

due to him is absolutely illegal. Though, the Government came with a

subsequent order, which is produced as Ext.P12 wherein the

Government discontinued the provision for allowing the price difference

of bitumen, but ordered that it would be applicable prospectively only, for

all future tenders. Thereupon, the petitioner approached this Court filing

W.P(C) No.28772 of 2022 challenging Ext.P5 and the said writ petition

was disposed of as per Ext.P14 judgment.

3. In Ext.P14 judgment, the court entered a finding that the

claim of the petitioner was rejected by Ext.P5 without considering the

relevant Government orders and the judgments rendered by the court

and therefore issued an order to reconsider the same. On receipt of

Ext.P15 notice of hearing, Ext P16 representation was submitted by the

petitioner. Without taking into consideration any of the contentions raised

by the petitioner and without considering the impact of the relevant

Government orders and the interpretation of the same given by this Court

in the judgments stated supra, the claim of the petitioner was rejected by

Ext.P17 order which is challenged in this writ petition. Petitioner

contended that by issuance of Ext.P17 order, the 5 th respondent has re-

introduced Ext.P5 which has already been set aside by this Court as per

Ext.P14 judgment and a perusal of Ext.P17 itself will reveal that the same

has been issued in defiance of the directions contained in Ext.P14

judgment.

4. A statement has been filed on behalf of the 5 th respondent,

wherein the said respondent has explained the circumstances which led

to the issuance of Ext.P17 order.

5. I have heard the learned counsel for the petitioner as well as

the learned Government Pleader.

6. The claim of the petitioner was rejected as per Ext.P5 which

was challenged in W.P (C) No.28772 of 2022 and this Court as per

Ext.P14 judgment, set aside Ext.P5 and directed reconsideration of the

request made by the petitioner. Paragraph 4 of the said judgment reads

as follows:

"4. Having heard the learned Counsel on either side and having scrutinized Ext. P5, I find merit in the submission of the learned

Counsel for the petitioner that the petitioner's claim for differential cost of bitumen was rejected without considering the Government Orders and the judgments rendered by this Court in the proper manner. There is also merit in the submission that Ext.P12 cannot have any impact on the petitioner's claim since that Government order is dated 26.08.2022. Moreover, it is specifically stated in Ext.P12 that the Government Order is only prospective in effect. In the light of the declaration in Ext. P10 judgment that the benefit will be available to works which were not ongoing as on 01.11.2018 and undertaken prior to 30.04.2021, the 5th respondent is bound to consider whether the petitioner's claim falls within the scope of such declaration. Needless to say that the contention of the Government Pleader that the subject work having been completed after 30.04.2021, the declaration will not benefit the petitioner should also be considered. The fifth respondent having failed to undertake any such exercise, Ext. P5 is set aside and the 5th respondent is directed to take a fresh decision in terms of the Government order and the judgment of this Court."

In Ext.P14 judgment, this Court has entered a specific finding that Ext.P5

was issued without considering the relevant Government orders and the

judgments rendered by this Court in a proper manner. The Court also

entered a finding that Ext.P12 order can have no application as the same

is only prospective. The Court also found that in the light of the

declaration in Ext.P10 judgment, that the benefit will be available to

works which were not ongoing as on 01.01.2018 and undertaken prior to

30.04.2021, the 5th respondent is bound to consider whether the

petitioner's claim falls within the scope of such declaration. A perusal of

Ext.P17 would reveal that none of the directions contained in Ext.P14

judgment has been considered while issuing the same. It is settled law

that reasons cannot be supplemented by way of a counter affidavit in

supporting a Government order. Ext.P17 has been issued in defiance of

the directions contained in Ext.P14 in as much as no reasons have been

stated as to why the Government orders as well as the judgments cited

above are not applicable to the facts and circumstances of the

petitioner's claim.

In view of the same, I am inclined to interfere with Ext.P17 order

and consequently, Ext.P17 is set aside. The matter is remitted back to

the 5th respondent for a reconsideration, strictly in compliance with the

directions contained in Ext.P14 judgment in W.P.(C) No.28772 of 2022

and after considering the contentions raised by the petitioner in Ext.P16

representation dated 28.12.2022 and take a final decision in the matter

within an outer limit of two months from the date of receipt of copy of the

judgment, after affording an opportunity of being heard to the petitioner. It

is made clear that if the 5th respondent requires any clarification in the

matter, he shall seek the views of the 3rd respondent in this regard and if

any such request is made by the 5th respondent, the same shall be

promptly addressed by the 3rd respondent and the 5th respondent shall

take a final decision in the matter after obtaining the views of the 3rd

respondent so that a just and proper decision is made on the claim raised

by the petitioner.

The writ petition is disposed of as above.

Sd/-

VIJU ABRAHAM JUDGE

cks

APPENDIX OF WP(C) 3272/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE AGREEMENT NO.E(K)59/2020-21 EXECUTED BETWEEN THE PETITIONER AND THE 4TH RESPONDENT DATED 09- 09-2020

Exhibit P2 A TRUE COPY OF THE CALCULATION STATEMENT OBTAINED BY THE PETITIONER FROM THE OFFICE OF THE 6TH RESPONDENT

Exhibit P3 A TRUE COPY OF THE LETTER SO SUBMITTED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT DATED 29-07-2021

Exhibit P4 A TRUE COPY OF THE REPRESENTATION SO MADE BY THE PETITIONER TO THE 5TH RESPONDENT DATED 11-07-2022

Exhibit P5 A TRUE COPY OF THE REPLY NUMBER A2/3677/2020 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 15-07-2022

Exhibit P6 A TRUE COPY OF THE GOVERNMENT ORDER SO ISSUED BY THE FINANCE (INDUSTRIES AND PUBLIC WORKS -B) DEPARTMENT AS GO(RT) NO 9386/2018/FIN DATED 13-11-2018

Exhibit P7 A TRUE COPY OF THE GOVERNMENT ORDER ISSUED BY THE FINANCE (INDUSTRIES AND PUBLIC WORKS

-B) DEPARTMENT AS GO(RT) N02816/2020/FIN DATED 17-04-2020

Exhibit P8 A TRUE COPY OF THE GOVERNMENT ORDER ISSUED BY THE FINANCE DEPARTMENT (INDUSTRIES AND PUBLIC WORKS -B) AS G.O(RT)NO.5502/2020/FN DATED 25-09-2020

Exhibit P9 A TRUE COPY OF THE GOVERNMENT ORDER ISSUED BY THE FINANCE (INDUSTRIES AND PUBLIC WORKS

-B) DEPARTMENT AS GO(RT) NO.3815/2021 DATED 30-04-2021

Exhibit P10 A TRUE COPY OF THE JUDGMENT BEFORE THIS HON'BLE COURT IN WP(C) NO .23576/2021 DATED

11-11-2021

Exhibit P11 A TRUE COPY OF THE JUDGMENT BY THIS HON'BLE COURT IN WP(C) NOS. 15722 /2021 DATED 30-

11-2021

Exhibit P12 A TRUE COPY OF THE GOVERNMENT ORDER ISSUED BY THE FINANCE (INDUSTRIES AND PUBLIC WORK

-B) DEPARTMENT AS G.O(P) NO. 96/2022/FIN DATED 26-08-2022

Exhibit P13 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 6TH RESPONDENT IN WP (C) 28772/2022

Exhibit P14 A TRUE COPY OF THE JUDGMENT DATED 21-11-

2022 PASSED BY THIS HON'BLE COURT IN WP (C) 28772/2022

Exhibit P15 A TRUE COPY OF THE NOTICE ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 23-12-

Exhibit P16 A TRUE COPY OF THE DETAILED WRITTEN REPRESENTATION MADE BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 28-12-2022

Exhibit P17 A TRUE COPY OF THE ORDER NO.A2/3677/2020 PASSED BY THE 5TH RESPONDENT DATED 09-01-