Kerala High Court
M.A. Ameer vs The Executive Engineer on 2 August, 2024
WP(C) NOS.19128 & 19446 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
WP(C) NO. 19128 OF 2023
PETITIONER:
M.A. AMEER,
PWD CONTRACTOR
MUNAMBATH HOUSE,CHENGALA POST,
KASARAGOD, PIN - 671541
BY ADVS.
RANJITH VARGHESE
RAHUL VARGHESE
SANTHA VARGHESE
RESPONDENTS:
1 THE EXECUTIVE ENGINEER,
LOCAL SELF GOVERNMENT DEPARTMENT (LSGD) DIVISION,
KASARAGOD, PIN - 671123
2 THE SECRETARY,
DISTRICT PANCHAYATH,KASARAGOD,
PIN - 671123
3 THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
LOCAL SELF GOVERNMENT DIVISION (LSGD),GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001
SMT.DEVI SHRI R., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.08.2024, ALONG WITH WP(C).19446/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NOS.19128 & 19446 OF 2023
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2024:KER:60012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
WP(C) NO. 19446 OF 2023
PETITIONER:
M.A. AMEER,
PWD CONTRACTOR
MUNAMBATH HOUSE,CHENGALA POST,
KASARAGOD, PIN - 671541
BY ADVS.
RANJITH VARGHESE
RAHUL VARGHESE
SANTHA VARGHESE
RESPONDENTS:
1 THE EXECUTIVE ENGINEER,
LOCAL SELF GOVERNMENT DEPARTMENT (LSGD) DIVISION,
KASARAGOD,
THE EXECUTIVE ENGINEER,
LOCAL SELF GOVERNMENT DEPARTMENT (LSGD) DIVISION,
KASARAGOD, PIN - 671123
2 THE SECRETARY,
THE SECRETARY,DISTRICT PANCHAYATH,
KASARAGOD, PIN - 671123
3 STATE OF KERALA,
PRINCIPAL SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT (LSGD),GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM,
PIN - 695001
SMT.DEVI SHRI R., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.08.2024, ALONG WITH WP(C).19128/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NOS.19128 & 19446 OF 2023
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2024:KER:60012
JUDGMENT
The petitioner had completed the work of 'KDP 2017-18-Maccadam
Tarring of Vidyanagar Neerchal Mundyathaduka Road 2 nd Reach-17.5 km (Project
No. 355/17-18)' under agreement No. EE/LSGD/KSD/150/2018-19 dated 23.08.2018
ahead of the scheduled time for completion and claims incentive and bonus as
per Clause 87 of the Notice Inviting Tenders (NIT) in Form No. 83, which forms
part of Ext.P1 agreement. While Clause 86 of Form No.83 of NIT indicates a
penalty in case of non-completion of work within the stipulated time, Clause 87
provides an incentive or bonus which will have to be paid to the bidder at the rate
of 1% of the estimated Probable Amount of Contract (PAC) subject to a maximum
Rs. 4 lakhs for completion of work within the agreed time limit in case of works
which exceed TS power of Superintending Engineer.
2. The period of the agreement was nine months from 23.08.2018
expiring on 22.05.2019. The petitioner had also completed the work of
Rs.3,38,48,683/-, as provided under the contract for a value of Rs. 2,71,07,529/-,
against the agreed PAC of Rs. 2,71,96,965/-, as per the certificate of completion
under Ext.P2. Accordingly, the petitioner claims 1% of the estimated PAC of Rs.
3,38,48,683/-, i.e., Rs. 3,38,486/-, by way of incentive or bonus as per Exts.P3 and
P4.
WP(C) NOS.19128 & 19446 OF 2023
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3. This writ petition is filed by the same petitioner raising similar
contentions. The petitioner had completed the work of 'KDP 2016-17-Vidyanagar
Neerchal Mundyathadka Road Meccadam Tarring in Badiadka GP' under an
agreement No. EE/LSGD/KSD/259/2017-18 dated 30.01.2018, ahead of the
scheduled time for completion and claims incentive and bonus as per Clause 87 of
the Notice Inviting Tenders (NIT) in Form No. 83, which forms part of Ext.P1
agreement. The period of agreement was twelve months from 30.01.2018 expiring
on 29.01.2019. The petitioner had also completed the work of Rs. 3,52,00,136/-, as
provided under the contract for a value of Rs. 3,01,59,341/-, against the agreed
PAC of Rs. 3,04,16,747/-, as per the certificate of completion under Ext.P2.
Accordingly, the petitioner claims 1% of the estimated PAC of Rs. 3,52,00,136/-,
i.e., Rs. 3,52,001/- by way of incentive or bonus as per Exts.P3 and P4.
4. A statement has been filed on behalf of the 1st respondent in W.P.
(C) No. 19128/2023, which does not dispute the fact that the petitioner had
completed the work ahead of the time stipulated. However, it relies on Annexure
R1(a) dated 08.01.2020, which dispenses with the practice of providing incentives
to the contractor for the timely completion of the work. It is also submitted that
the Principal Secretary, Local Self Government Department by Annexure R1(b)
letter dated 27.04.2020 clarified to the Secretary, the District Panchayat that the
WP(C) NOS.19128 & 19446 OF 2023
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practice of providing bonuses to contractors for timely completion of work was
not implemented in Local Self Government Department.
5. Heard Sri. Ranjan Babu Joseph, the learned counsel appearing for
the petitioners and Smt. Devi Shri R., the learned Government Pleader appearing
for the respondents.
6. It is not in dispute that the work was completed ahead of the time
stipulated. It is not in dispute that there was an Incentive Clause in Ext.P1
agreement. It is not in dispute that the amount payable is 1% of the estimated
PAC. The reason given in the statement relying on Annexures R1(a) and (b)
orders cannot be accepted for the short reason that they are after the date of
agreement which was on 23.08.2018. That apart the Government is as much
bound by the contract, as the bidder, and it cannot be allowed to resile from the
terms of the contract unilaterally. The Government should be a model employer
and should stick to the terms of the contract without making any deviation from
the same. All actions of the Government must be informed by reason and fairness
even in contractual spheres. After making the contractor work with a Clause
noticed above, the stand of the Government that it was not implemented in the
Local Self Government Department or that they have given up the practice of
giving incentives cannot be accepted in the face of the admitted contractual
conditions in Ext.P1.
7. Accordingly, the writ petitions are allowed. Ext.P6 impugned
WP(C) NOS.19128 & 19446 OF 2023
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orders are quashed. There will be a direction to the respondents to pay the
petitioner Rs. 3,38,486/-, being 1% of the estimated PAC with respect to the work
completed as stated in W.P.(C.) No. 19128/2023 and Rs. 3,52,001/-, with respect to
the work completed as stated in W.P.(C.) No. 19446/2023, within three months
from the date of receipt of a copy of this judgment. If the amounts are not paid
within the time directed above, the amounts will carry an interest at the rate of
12%, till the actual payments are made.
The writ petitions are allowed as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
DCS
WP(C) NOS.19128 & 19446 OF 2023
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APPENDIX OF WP(C) 19128/2023
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF THE AFORESAID AGREEMENT ALONG
WITH ORDER NO. A3-355/17-18 DATED 23.08.2018
ISSUED BY THE 1 RESPONDENT AND RELEVANT PAGES
UNDER FORM NO. 83 WHICH ARE REQUIRED FOR
CONSIDERATION OF THE POINT AT ISSUE
Exhibit P-2 TRUE COPY OF THE SAID CERTIFICATE DT.
26.10.2019
Exhibit P-3 TRUE COPY OF LETTER DT. 19.06.2019 SUBMITTED
TO THE 1ST RESPONDENT ALONG WITH ENDORSEMENT
OF ACKNOWLEDGEMENT
Exhibit P-4 TRUE COPY THE SAID LETTER DT. 16.09.2019
WHICH CONTAINS OFFICE SEAL AND SIGNATURE OF
THE OFFICER ACKNOWLEDGING RECEIPT OF THE
LETTER
Exhibit P-5 TRUE COPY OF SUCH A LETTER GIVEN TO THE
PETITIONER DT. 01.01.2020
Exhibit P-6 TRUE COPY OF THE SAID LETTER DT. 22.07.2020
OF THE 1 RESPONDENT-EXECUTIVE ENGINEER AS
ISSUED TO THE PETITIONER ALONG WITH A COPY OF
LETTER DT. 27.04.2020 FROM THE OFFICE OF THE
PRINCIPAL SECRETARY, LSGD,
THIRUVANANTHAPURAM, ARE COLLECTIVELY PRODUCED
WP(C) NOS.19128 & 19446 OF 2023
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APPENDIX OF WP(C) 19446/2023
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF THE AFORESAID AGREEMENT ALONG
WITH ORDER NO. A3-522/2016- 17 DATED
30.01.2018 ISSUED BY THE 1ST RESPONDENT AND
RELEVANT PAGES UNDER FORM NO. 83 WHICH ARE
REQUIRED FOR CONSIDERATION OF THE POINT AT
ISSUE AND THE RELIEF CLAIMED BY THE
PETITIONER IN THE CASE
Exhibit P-2 TRUE COPY OF THE SAID CERTIFICATE DT.
26.10.2019
Exhibit P-3 TRUE COPY OF LETTER DT. 19.06.2019 SUBMITTED
TO 1ST RESPONDENT ALONG WITH ENDORSEMENT OF
ACKNOWLEDGEMENT
Exhibit P-4 TRUE COPY OF THE SAID LETTER DT. 16.09.2019
WHICH CONTAINS OFFICE SEAL AND SIGNATURE OF
THE OFFICER ACKNOWLEDGING RECEIPT OF THE
LETTER
Exhibit P-5 A COPY OF SUCH A LETTER GIVEN TO THE
PETITIONER DT. 01.01.2020
Exhibit P-6 TRUE COPY OF SAID LETTER DT. 22.07.2020 OF
THE 1ST RESPONDENT-EXECUTIVE ENGINEER AS
ISSUED TO THE PETITIONER ALONG WITH A COPY OF
LETTER DT. 27.04.2020 FROM THE OFFICE OF THE
PRINCIPAL SECRETARY, LSGD, THIRUVANANTHAPURAM
