Kerala High Court
Sukesini Constructions And Developers ... vs State Of Kerala on 16 February, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
WP(C) NO. 2368 OF 2024
PETITIONER:
SUKESINI CONSTRUCTIONS AND DEVELOPERS (INDIA)
PVT. LTD., SUKESINI BUILDING, MARAKKADA MUKKU,
PALACHIRA P.O., VARKALA, THIRUVANANTHAPURAM
DISTRICT-695143 REPRESENTED BY ITS DIRECTOR.,
PIN - 695143
BY ADV LATHEESH SEBASTIAN
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 SECRETARY, IRRIGATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION,
IRRIGATION DEPARTMENT, CWC BUILDING, LMS COMPOUND,
THIRUVANANTHAPURAM, PIN - 695033
4 SUPERINTENDING ENGINEER, IRRIGATION SOUTH CIRCLE,
2ND FLOOR, CWC BUILDING, LMS COMPOUND,
THIRUVANANTHAPURAM, PIN - 695033
5 EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER,
IRRIGATION DIVISION,ASRAMAM, KOLLAM, PIN - 691002
6 ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE ASSISTANT
EXECUTIVE ENGINEER, IRRIGATION SUB DIVISION, ASRAMAM,
KOLLAM, PIN - 691002
7 ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENGINEER,
IRRIGATION SECTION, ASRAMAM, KOLLAM, PIN - 691002
BY ADV
SRI. SUJITH MATHEW JOSE - SPL GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 2368/24
2
JUDGMENT
The petitioner is stated to be a construction company, awarded
with the contract of construction of groyne field between chainage
9.00 k.m. to 10.00 k.m. at 'Kulathilpadam' to 'Garfil Nagar' area, in
Eravipuram Constituency on 19.08.2015. They say that, though the
work has been completed substantially, eligible amounts due to them
have been denied on various untenable reasons; and thus assail
Ext.P4 order of the 5th respondent - Executive Engineer (Irrigation
Division), arguing that, what is stated therein is factually incorrect
and baseless. They, therefore, pray that Ext.P4 be quashed and the
respondents be directed to pay them an amount of
Rs.1,01,50,401.70, which is the amount due to them, when the
contract had been terminated.
2. Sri.Latheesh Sebastian - learned counsel for the petitioner,
submitted that, since the termination of contract was compelled for
reasons which were beyond the control of his client, the imputations
made by the respondents against them are uncharitable and
unfortunate; and that, therefore, before any liability could be cast
upon them, the respondents ought to have re-audited their works, as
also the accounts, to verify whether such action was tenable or
otherwise. He relied upon Ext.P5 judgment of this Court - which was
obtained by another contractor - in substantiation, saying that, on a
similar set of circumstances, this Court directed the competent
Authority to constitute a Committee for re-auditing the work of the
petitioner therein and take a fresh decision regarding the amounts
payable to them. He thus prayed that the respondents be directed to
adopt a procedure as ordered by this Court in Ext.P5 in his client's
case also.
3. Pertinently, Sri.Sujith Mathews Jose - learned Government
Pleader, submitted that Ext.P4 suffers from no vice, particularly
because the contract of the petitioner had earlier been terminated.
He, however, submitted that if this Court is only inclined to direct
the procedure as ordered by this Court in Ext.P5 judgment, the
competent Authority would not stand in the way of appropriate
orders being issued. He, however, prayed that no affirmative
declaration be made in favour of the petitioner in this judgment.
4. When I evaluate and consider the afore submissions, it is
evident that Ext.P4 has been issued by the Authorities adverting to
various factual and documentary inputs, as are available, consequent
to the contract having been entered into between the parties.
Normally, this Court cannot enter into the merits of the same
conclusively, while acting under Article 226 of the Constitution of
India, because any re-evaluation of such factors are proscribed.
5. I have, however, examined Ext.P5 judgment and notice
that it was delivered in a case where the petitioner therein had been
notified of a negative amount as regards his claim, after having been
imposed with fines. In that case, the petitioner also impelled similar
claims as the petitioner herein; and alleged that amounts due to
them had not been properly evaluated or assessed.
6. Since the learned Government Pleader concedes that the
course adopted by this Court in Ext.P5 can be made applicable to
the petitioner in this case also, I deem it necessary that it be so
ordered.
Resultantly, this Writ Petition is allowed and the 3rd respondent
- Chief Engineer, is directed to constitute a Committee to audit the
works executed/completed by the petitioner, leading to the said
Authority to take a decision regarding the amounts payable to them,
adverting to their claim.
The afore exercise shall be completed, after affording the
petitioner an opportunity of being heard; thus culminating in an
appropriate order/necessary action thereon, as expeditiously as is
possible, but not later than four months from the date of receipt of a
copy of this judgment.
Needless to say, on the afore being completed, the eligible
amounts due to them shall be disbursed within a period of two
months thereafter.
Sd/-
RR DEVAN RAMACHANDRAN
JUDGE
APPENDIX OF WP(C) 2368/2024
PETITIONER EXHIBITS
ExhibitP 1 TRUE COPY OF THE SCHEDULE OF WORK FOR THE
CONSTRUCTION OF GROYNE FIELD BETWEEN
CHAINAGE 9.00 KM TO 10.00 KM AT
KULATHILPADAM TO GARFIL NAGAR AREA IN
ERAVIPURAM CONSTITUENCY OF KOLLAM DISTRICT
Exhibit P2 TRUE COPY OF THE CLOSURE AGREEMENT
EXECUTED BY THE PETITIONER AND THE 4TH
RESPONDENT DATED 01.12.2020
Exhibit P3 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN W.P(C)NO 11005/2022 DATED
17.06.2022
Exhibit P4 TRUE COPY OF THE ORDER OF THE 5TH
RESPONDENT DATED 05.09.2022
Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN W.P(C) NO.29685/2022 DATED
20.10.2022
Exhibit P6 TRUE COPY OF THE ORDER OF THE 1ST
RESPONDENT DATED 15.07.2023 BEARING
NO.G.O.(RT)641/2023/WRD
