Kerala High Court

Radhakrishnan O vs State Of Kerala on 15 February, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                       WP(C) NO. 11793 OF 2022
PETITIONER:

          RADHAKRISHNAN O., AGED 71 YEARS, S/O.OMMINI,
          KRISHNAVILASAM, CHOOLATHEERUVU, MUTHUKULAM
          NORTH, ALAPPUZHA DISTRICT.

          BY ADVS.
          K.S.HARIHARAPUTHRAN
          BHANU THILAK


RESPONDENTS:

    1     STATE OF KERALA, REP. BY THE SECRETARY TO WATER
          RESOURCES, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM - 695 001.

    2     SUPERINTENDING ENGINEER, KUTTANAD DEVELOPMENT
          CIRCLE, CHENGANNUR - 689 121.

    3     THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION,
          DEPARTMENT OF IRRIGATION, CHENGANNUR, ALAPPUZHA
          DISTRICT - 689 121.

    4     BRANCH MANAGER, KERALA FINANCIAL CORPORATION,
          BRANCH OFFICE, ALAPPUZHA - 688 001.

          BY ADVS.
          ADV. VENUGOPAL.M.R
          DHANYA P.ASHOKAN(K/001671/2000)
          S. MUHAMMAD ALIKHAN(K/000644/2020)
          SRI. SUJITH MATHEW JOSE


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, ALONG WITH WP(C)NO.30034/2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WPC 11793/22 & 30034/19
                                       2



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                          WP(C) NO. 30034 OF 2019
PETITIONER:

            S. PRIYA, AGED 48 YEARS, PROPRIETRESS,
            M/S. DEEVIKA CONSTRUCTIONS, 10 B, SREE
            DHANYA HEAVENS, AMALAMUKKU, PERROORKADA P O,
            THIRUVANANTHAPURAM-695001.

            BY ADVS.
            K.S.HARIHARAPUTHRAN
            SMT.BHANU THILAK


RESPONDENTS:

     1      STATE OF KERALA, REPRESENTED BY THE SECRETARY FOR
            WATER RECOURSES, GOVERNMENT SECRETARIAT-695001.

     2      THE CHIEF ENGINEER, INLAND WATER WAYS AND KUTTANAD
            PACKAGE, ALAPPUZHA-688011.

     3      THE SUPERINTENDENT ENGINEER, KUTTANAD DEVELOPMENT
            CIRCLE, CHENGANNUR, ALAPPUZHA-689121.

     4      THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION,
            CHENGANNUR, ALAPPUZHA-689121.

     5      THE ASSISTANT EXECUTIVE ENGINEER, KUTTANAD
            DEVELOPMENT SUB-DIVISION, CHARUMMOOD,MAVELIKKARA,
            ALAPPUZHA-690505.

     6      THE ASSISTANT EXECUTIVE ENGINEER, KUTTANAD
            DEVELOPMENT SUB-DIVISION, HARIPAD, ALAPPUZHA-690514.

     7      THE ASSISTANT ENGINEER, KUTTANAD DEVELOPMENT
            SECTION, KATTANAM, CHARUMMODU, ALAPPUZHA-689121.

     8      THE ASSISTANT ENGINEER, MINOR IRRIGATION SECTION,
            HARIPAD, ALAPPUZHA-690514.
 WPC 11793/22 & 30034/19
                                    3

            BY ADV.
            SRI.SUJITH MATHEW JOSE - SPL GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.02.2024, ALONG WITH WP(C)NO.11793/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WPC 11793/22 & 30034/19
                                      4

                             JUDGMENT

[WP(C) Nos.11793/2022, 30034/2019]

I am considering these Writ Petitions together because, the first

among them has been filed by Smt.Priya; while, the second by her

power-of-attorney; wherein, she asserts that she is the Contractor of

a work entrusted to her by the Irrigation Department of the

Government of Kerala, under the 'Kuttanad Package'; and assails

Exts.P10 in WP(C)No.30034/2019 as being illegal and unlawful, since

it terminates the contract at her risk and cost, on the allegation that

she did not complete the work, even after having been given

sufficient time.

2. That said, WP(C)No.11793/2022 has been filed by the

petitioner, seeking directions to the respondents therein to effect

payment of amounts under the 7 th part-bill as per Ext.P1, which has

been denied, which, according to her, is without any tangible

reason. She thus prays that both Writ Petitions be allowed in terms

of the prayers made therein.

3. Sri.K.S.Hariharaputhran - learned counsel for the

petitioner, explained that, even though his client was awarded the WPC 11793/22 & 30034/19

contract under the 'Kuttanad Package, it became subsequently clear

that it would be impossible to complete the same on account of

various factors, including the impediments of natural causes, as also

the variation in climate and weather. He added that, this is evident

from the fact that, in Ext.P5 - which is the Minutes of the meeting

to review the work progress, held as early as in the year 2017 - it

was recorded that no new work can be completed under the

'Package' and that no administrative sanction for works will be

further issued. He pointed out that, as per the third decision therein,

works which were found not capable of being completed in the near

future, were recommended to be dropped. He submitted that the

factum of his client rendered incapacitated to complete the work -

it being impossible, particularly on account of the ravaging floods of

the years 2018 and 2019 - is evident from Exts.P7 and P8

recommendations made by the Superintending Engineer himself, but

that it was without even adverting to the same that Ext.P10 in

WP(C)No.30034/2019 has been issued, terminating her contract. He

thus prayed that the said order be set aside; consequentially, praying

that the respondents be directed to honour the part-bill with respect WPC 11793/22 & 30034/19

to the work in question, which is the subject matter in

WP(C)No.11793/2022, pointing out that it has been now held up

solely because of the aforementioned order of termination still

remaining in force, though stayed by this Court. He concluded,

pointing out that, in Ext.P2 in WP(C)No.30034/2019, all the

assertions of his client has been admitted and her part-bills ordered

to be disbursed.

4. Sri.Sujith Mathew Jose - learned Special Government

Pleader, responded to the afore submissions of

Sri.K.S.Hariharaputhran, saying that the petitioner cannot shy away

from her obligations under the contract awarded to her, which is

the subject matter in WP(C)No.30034/2019. He invited my attention

to Ext.P10, to argue that, as stated therein, even though petitioner's

original contract period was to expire on 06.03.2016, it was

extended multiple times, namely, on 06.09.2016, 31.12.2016,

31.03.2017, 31.03.2018, 29.06.2018, 27.09.2018, 26.12.2018,

31.03.2019 and 29.06.2019; and that this was done so as to provide

the petitioner enough time to complete the work. He submitted that,

however, even after the lapse of more than 53 months since the WPC 11793/22 & 30034/19

commencement of work, the progress was found to be only 11.14%,

and therefore, that this is a case where even a hearing to the

petitioner was not necessary, to conclude that she has acted in

violation of her contractual obligations. He submitted that, therefore,

Ext.P10 in WP(C)No.30034/2019 is irreproachable; and

consequently, that, as per the applicable Rules, Regulations and

Circulars holding the field, the petitioner's further bills under the

contract cannot be favoured to her and therefore, the reliefs sought

in WP(C)No.11793/2022 being untenable.

5. Smt.Dhanya Ashokan - learned Standing Counsel for the

Kerala Financial Corportaion (KFC) - 4 th respondent in

WP(C)No.11793/2022 - at this time, intervened to say that the

petitioner had availed of certain financial facilities from her client,

on the strength of a power-of-attorney, to the effect that any

payment by the official respondents will be credited to the loan

account only. She submitted that, therefore, if any relief is to be

granted by this Court in these Writ Petitions, then it may be

clarified that the official respondents will credit the eligible amounts

into the loan account in question and not to the petitioner directly. WPC 11793/22 & 30034/19

She added that, this is more so because, the account has now

become a Non Performing Asset and her client has already initiated

recovery action against the petitioner.

6. I have examined the afore rival positions of the parties

very carefully, with specific reference to the documents produced by

them in the two Writ Petitions.

7. The initial sets of facts are without dispute, namely that

the petitioner was contracted with the work under the 'Flood

Management Programme', which is a centrally sponsored scheme;

and that the site was handed over to her on 13.03.2015, with the

time of completion being 06.03.2016.

8. Interestingly, Ext.P10 thereupon says that the time frame

for completion of work was extended at least nine times from 2016

to 2019; and what is crucially relevant in this regard is that many

of those were granted without imposition of fine. Obviously, the

respondents were also aware that the extensions granted without fine

were on account of the fact that the petitioner was incapacitated

from completing the work within the time schedules; and there is

some reflection on this in Ext.P5 - which is the Minutes of a High WPC 11793/22 & 30034/19

Level Committee of all officers concerned, held as early as on April

2017. Perhaps, this Court could have disregarded Ext.P5, it being

the Minutes of the meeting conducted much earlier than the period

extended to the petitioner, but what then becomes relevant are

Exts.P7 and P8 recommendations, made by the Superintending

Engineer dated 12.02.2019 and 15.05.2019 respectively.

9. As is ex facie evident from the said proceedings, the

explanation of the petitioner - that though she was trying to

complete the work within the time frame stipulated, she was forced

with natural disasters including floods, thus being unable to

complete it under the contract - was taken into account and

virtually conceded to. It is also recorded in both the proceedings

that a revised estimate for the work will have to be done; and more

crucially, in Ext.P8, the Superintending Engineer then goes on to say

that the completed works of the petitioner were found to be

satisfactory by the farmers; and further that, though she was

originally granted 365 days for completion, only 75 days could have

been used on account of the natural conditions available.

10. To fortify this, the Superintending Engineer thereafter WPC 11793/22 & 30034/19

says that all these factors were intimated to the other Authorities

and that since the petitioner was unable to complete the work for

various reasons which are not attributable to her, a revised estimate

was required to be settled, to provide most essential benefits to the

farmers of the area in question. In fact, the said Engineer concludes

Ext.P8 in an accusatory tone, saying that none of the other

Authorities took any action in this regard until then.

11. Pertinently, as argued by Sri.Hariharaputhran, in Ext.P1

produced along with WP(C)No.30034/2019, the afore is virtually

conceded and a recommendation made to honour the part-bills of

the petitioner.

12. One, therefore, fails to understand how, in the matrix of

the afore factual situation, the same Authority who issued Exts.P7

and P8 could have then issued Ext.P10, merely saying that since the

petitioner could not complete the work within the time frame

stipulated, her contract is liable to be cancelled. It is also difficult to

fathom how the Superintending Engineer could have entered into a

conclusion that the petitioner had ' committed breach of contract

repeatedly and has no interest to complete the work ' (sic), when he WPC 11793/22 & 30034/19

himself has made some recommendations as mentioned above.

13. I do not propose to speak any further on this issue

because, it would amount to pre-judging the matter, since am of the

view that the entire scenario will have to re-adjudicated and re-

evaluated by the Superintending Engineer, or such other competent

Authority. I am persuaded to this view because Ext.P10 does not

show any participation of the petitioner during the proceedings when

it was issued, though it refers to the notice dated 22.07.2019, which

is stated to be the final notice notifying her of the termination of

contract. However, since Ext.P10 does not reflect any hearing having

been given to the petitioner, or consideration of the

recommendations in Exts.P1, P7 and P8, as also her explanation;

and am hence certain that the entire matter will require to be

reconsidered without any avoidable delay.

14. The afore being so concluded, as regards

petitioner's bills ought to be paid with respect to the same work in

has completed more than 50% of the works and was entitled to WPC 11793/22 & 30034/19

more than Rs.11 Crores, but that she was paid only about Rs.2.5

Crores. It is her specific contention that, since she has been pushed

to financial crisis on account of such refusal, she is left without any

other option, but to approach this Court.

15. It is, therefore, limpid that the reliefs sought for in

and the disbursement of amounts sought for in the former is part of

the work, which is the subject matter of the latter.

In the afore circumstances, these Writ Petitions are ordered in

the following manner:

a) WP(C)No.30034/2019 is allowed and Ext.P10 set aside;

with a consequential direction to the 3 rd respondent, or any other

competent Authority, to re-evaluate the claims of the petitioner,

after affording her an opportunity of being heard and of filing

objections, adverting specifically to Exts.P1, P5, P7 and P8 therein;

thus culminating in an appropriate order/necessary action thereon, as

expeditiously as is possible, but not later than two months from the

date of receipt of a copy of this judgment.

WPC 11793/22 & 30034/19

directing the official respondents therein to disburse the amounts

eligible to the petitioner, as may be found due to her, after

direction in (a) above is completed, which shall be done not later

than one month thereafter.

c) Needless to say, while disbursing eligible amounts, the

authorities will also hear the KFC and take a call whether such

payments are to be made directly to the loan account or to the

petitioner.

Sd/-

RR                                        DEVAN RAMACHANDRAN
                                                JUDGE
 WPC 11793/22 & 30034/19


                     APPENDIX OF WP(C) 30034/2019

RESPONDENT EXHIBITS
Exhibit             EXHIBIT R1(a); TRUE COPY AGREEMENT
                    DATED,23.03.2015
Exhibit             EXHIBIT R1(b):TRUE COPY OF THE REVELANT
                    PAGE OF THE TENDER DOCUMENT
Exhibit             EXHIBIT R1(c): TRUE COPY OF THE
                    MEASUREMENT AND PART BILL DATED 14-09--

Exhibit             EXHIT R1(d): TRUE COPY OF THE MEASUREMENT,
                    BILL AND PASS ORDER
Exhibit             EXHIBIT R1(b):TRUE COPY OF THE REVELANT
                    PAGE OF THE TENDER DOCUMENT
Exhibit             EXHIT R1(d): TRUE COPY OF THE MEASUREMENT,
                    BILL AND PASS ORDER
Exhibit             EXHIBIT R1(c): TRUE COPY OF THE
                    MEASUREMENT AND PART BILL DATED 14-09--

Exhibit             EXHIBIT R1(b):TRUE COPY OF THE REVELANT
                    PAGE OF THE TENDER DOCUMENT
Exhibit             EXHIBIT R1(a); TRUE COPY AGREEMENT
                    DATED,23.03.2015
Exhibit             EXHIT R1(d): TRUE COPY OF THE MEASUREMENT,
                    BILL AND PASS ORDER
Exhibit             EXHIBIT R1(a); TRUE COPY AGREEMENT
                    DATED,23.03.2015
Exhibit             EXHIBIT R1(c): TRUE COPY OF THE
                    MEASUREMENT AND PART BILL DATED 14-09--

Exhibit             EXHIBIT R1(b):TRUE COPY OF THE REVELANT
                    PAGE OF THE TENDER DOCUMENT
Exhibit             EXHIBIT R1(c): TRUE COPY OF THE
                    MEASUREMENT AND PART BILL DATED 14-09--

Exhibit             EXHIT R1(d): TRUE COPY OF THE MEASUREMENT,
                    BILL AND PASS ORDER
Exhibit             EXHIBIT R1(a); TRUE COPY AGREEMENT
                    DATED,23.03.2015
PETITIONER EXHIBITS
EXHIBIT P9          TRUE COPY OF THE 7TH PART BILL DATED
                    30.07.2019.
EXHIBIT P8          TRUE COPY OF THE LETTER DATED 15.05.2019
                    IS PRODUCED.
EXHIBIT P7          TRUE COPY OF THE MINUTES OF THE MEETING
 WPC 11793/22 & 30034/19


                          DATED 12.02.2019 CONVENED BY 3RD
                          RESPONDENT.
EXHIBIT P6                TRUE COPY OF THE NOTICE DATED 26.11.2018
                          ISSUED BY THE 4TH RESPONDENT TO THE 3RD

RESPONDENT RECOMMENDING FOR EXTENSION OF THE PERIOD OF THE SUBJECT WORK UP TO 31.03.2019 WITH FINE.

EXHIBIT P5 TRUE COPY OF THE MINUTE OF THE MEETING CONVENED BY THE ADDITIONAL CHIEF SECRETARY(FINANCE) HELD ON 26.04.2017.

EXHIBIT P4 TRUE COPY OF THE INTIMATION DATED 14.01.2016 BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 12.12.2018.

EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 06.03.2015 ALONG WITH FORWARDING LETTER.

EXHIBIT P3 TRUE COPY OF THE 4TH RESPONDENTS LETTER DATED 01.09.2016.

EXHIBIT P12 TRUE COPY OF THE FORWARDING LETTER DATED 06.09.2019.

EXHIBIT P11 TRUE COPY OF THE EXPLANATION DATED 26.08.2019.

EXHIBIT P10 TRUE COPY OF THE 3RD RESPONDENTS NOTICE OF TERMINATION DATED 05.09.2019.

WPC 11793/22 & 30034/19

APPENDIX OF WP(C) 11793/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE INTIMATION NO.A1-385/2017 DATED 4/5/2021, ISSUED BY THE 3RD RESPONDENT.

Exhibit P2 TRUE COPY OF THE NOTICE NO.KFC/ALP/612/21- 22 DATED 9/3/2022 ISSUED BY THE 4TH RESPONDENT, TO THE PETITIONER.

RESPONDENT EXHIBITS Exhibit R1(d) A True copy of the relevant pages of Kerala PWD manual ,Clause 2116.2.1.

Exhibit R1(a) True copy of the Power of Attorney documents.

Exhibit R1(b) A True copy of the relevant page of Kerala PWD Manual ,Clause 2008 Exhibit R1(c) A true copy of the letter dated 30.09.2021 from the Law Officer , Irrigation and Administration Thiruvananthapuram PETITIONER EXHIBITS Exhibit P3 TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 09-11-2023 ISSUED BY THE 3RD RESPONDENT