Kerala High Court
M/S. Kavumkal Road Builders vs State Of Kerala on 20 February, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945
WP(C) NO. 6575 OF 2024
PETITIONER:
M/S. KAVUMKAL ROAD BUILDERS, CHEMPANOLI,
VECHOOCHIRA P.O, PATHANAMTHITTA DISTRICT
REPRESENTED BY ITS MANAGING PARTNER
KURIAKOSE SABU AGED 60, S/O. LATE.UTHUPPAN
KURIAKOSE, KAVUMKAL HOUSE ANGADI P.O, RANNY,
PATHANAMTHITTA DISTRICT, PIN - 689674
BY ADVS.
V.PHILIP MATHEWS
ASHISH MATHEW JOHN
SEBA ANNA SIMON
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY
DEPARTMENT OF PUBLIC WORKS, KERALA GOVERNMENT
SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001
2 THE CHIEF ENGINEER (ROADS), OFFICE OF THE CHIEF
ENGINEER (ROADS), PUBLIC WORKS DEPARTMENT LMS
VELLAYAMBALAM RD, UNIVERSITY OF KERALA SENATE HOUSE
CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033
3 THE SUPERINTENDING ENGINEER, OFFICE OF SUPERINTENDING
ENGINEER, PWD ROADS SOUTH CIRCLE, BAKERY JCT ROAD,
UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695033
4 THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE
ENGINEER, PWD ROADS DIVISION, NEAR COLLECTORATE,
CHITTOOR, PATHANAMTHITTA, PIN - 689645
SMT. VIDYA KURIAKOSE - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 6575/24
2
JUDGMENT
The petitioner impugns Ext.P12 proceedings issued by the 3rd
respondent - Superintending Engineer of the Public Works Department
(PWD), whereby, their request for extension of time in a contract they
had entered into with the 'PWD' has been extended on imposition of
fine and Liquidated Damages, as per Part II of the General Conditions
of Contract (GCC).
2. The petitioner asserts that Ext.P12 has been issued without
affording them an opportunity of being heard; and therefore, that both
the quantum of fine and the liquidated damages are unreasonable and
capricious. They thus pray that Ext.P12 be set aside and the
Superintending Engineer be directed to reconsider the matter, after
affording them an opportunity of being heard. They add that they have
already preferred Ext.P16 representation in this regard; and alternatively
pleads that the same be directed to be taken up and disposed of
without any avoidable delay.
3. In response to the afore submissions of Sri.V.Philip Mathew
- learned counsel for the petitioner, Smt.Vidya Kuriakose - learned
Government Pleader, submitted that if the petitioner only requires
Ext.P16 to be taken up and disposed of by the competent Authority,
there is no legal impediment in doing so; however, praying that this
Court may not make any affirmative declarations on their entitlement
to any relief and leave it to the competent Authority to take a final
decision as per law. She added that she is making this submission only
because, it is the singular assertion of the petitioner that they were not
heard, which will be addressed if the afore exercise is completed.
4. In reply, the learned counsel for the petitioner submitted
that his client certainly welcomes the afore suggestion of the learned
Government Pleader; but prayed that, until such time as the exercise is
completed, conditions in Ext.P12 be directed not to be imposed; and
the competent Authority be further ordered to review the same, if it
becomes so warranted, after hearing his client.
5. No doubt, the petitioner is justified in saying that Ext.P12
could have been issued only after affording them an opportunity of
being heard. However, I do not deem it necessary to set aside Ext.P12
for that reason because, Ext.P16 representation has already been filed
by the petitioner. I am certain that if Ext.P16 is properly considered by
the said Authority, the petitioner's grievances would stand allayed,
substantially, if not fully.
In the afore circumstances, I allow this Writ Petition, to the
limited extent of directing the 4 th respondent - Executive Engineer, to
take up Ext.P16 representation of the petitioner and dispose of the
same, after affording them an opportunity of being heard; thus
culminating in an appropriate order/necessary action - either to review
Ext.P12, or to modify or confirm it, as the case may be, however, for
reasons to be recorded.
Needless to say, until such time as the afore exercise is completed
and the resultant order communicated to the petitioner, all further
action pursuant to Ext.P12, will stand deferred and no coercive action
will be taken against the petitioner for the reason that the time of
contract has not been extended.
It also goes without saying that, depending upon the decision to
be taken, the pending bills of the petitioner will be dealt with and
honoured, as per law, within a period of one month thereafter.
Sd/-
RR DEVAN RAMACHANDRAN
JUDGE
APPENDIX OF WP(C) 6575/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF LETTER NUMBER NO. DB7 /RD /2020
/3744 DATED 31-12-2020 BY THIRD RESPONDENT
TO PETITIONER
Exhibit P2 TRUE COPY OF THE ACCEPTED SCHEDULE OF WORK,
SF 2020-2021: -BM & BC WORK IN
CHANDANAPALLY, KONNI ROAD CH 0/000-12/200
SIGNED BY THE PETITIONER AND THIRD
RESPONDENT
Exhibit P3 TRUE COPY OF ORDER NUMBER DB-7/RD/2020/3744
DATED 17-06-2021 ISSUED BY THIRD RESPONDENT
Exhibit P4 TRUE COPY OF ORDER NUMBER SESCRD/152/2022-
DB7-PWD DATED 02-03-2022 ISSUED BY THE THIRD
RESPONDENT
Exhibit P5 TRUE COPY OF ORDER NUMBER SESCRD/152/2022-
DB7-PWD DATED 24-06-2022 ISSUED BY THE THIRD
RESPONDENT
Exhibit P6 TRUE COPY OF ORDER NUMBER SESCRD/152/2022-
DB7-PWD DATED 14-11-2022 ISSUED BY THE THIRD
RESPONDENT
Exhibit P7 TRUE COPY OF THE APPLICATION DATED 30-1-2023
SUBMITTED BY PETITIONER BEFORE THIRD
RESPONDENT TO FORECLOSE WORK, MAKE PAYMENT
Exhibit 7(a) TYPED COPY OF EXHIBIT P7
Exhibit P8 TRUE COPY OF THE G.O.(RT) NO 229/2023 /PWD
DATED 27.02.2023
Exhibit P9 TRUE COPY OF LETTER NO.SESCRD/152/2022-DB7-
PWD DATED 30.03.2023 BY THE THIRD RESPONDENT
TO THE FOURTH RESPONDENT APPROVING INITIAL
LEVELS LIMITING TO AGREED QUANTITY
Exhibit P10 TRUE COPY OF LETTER NO. SESCRD/152/2022-DB7-
PWD DATED 14.6.2023 BY THE THIRD RESPONDENT
TO THE FOURTH RESPONDENT APPROVING REVISED
INITIAL LEVELS AND PROPOSALS FOR THE WORK
Exhibit P11 TRUE COPY OF THE APPLICATION DATED 21-06-
2023 SUBMITTED BY PETITIONER BEFORE THE
THIRD RESPONDENT FOR EXTENSION OF TIME
Exhibit P12 TRUE COPY OF ORDER NUMBER SESCRD/152/2022-
DB7-PWD DATED 03-08-2023 ISSUED BY THIRD
RESPONDENT IMPOSING PENALTY
Exhibit P13 TRUE COPY OF THE RELEVANT PAGES OF THE
GENERAL CONDITIONS OF CONTRACT CONTAINING
CLAUSE 15.1 ,MENTIONED IN EXHIBIT P12
Exhibit P14 TRUE COPY OF LETTER NO. SESCRD/152/2022-DB7-
PWD DATED 24.09.2023 BY THE THIRD RESPONDENT
TO THE PETITIONER
Exhibit P15 TRUE COPY OF LETTER NO D3 -RD/3744/2020
DATED 06-01-2024 BY THE FOURTH RESPONDENT TO
THE PETITIONER
Exhibit P16 TRUE COPY OF THE REPRESENTATION DATED 16-01-
2024 TO THE FOURTH RESPONDENT WITH COPIES TO
RESPONDENTS 2 AND 3
