Kerala High Court
D.Johny vs The State Of Kerala on 20 February, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945
WP(C) NO. 20242 OF 2019
PETITIONER:
D.JOHNY,
AGED 58 YEARS
S/O. DASAN NADAR, PWD CONTRACTOR, KAITHARA,
VELLAPPALLY, NARUVAMOOD P.O., NEYYATTINKARA - 695 528.
BY ADVS.
T.T.MUHAMOOD
SRI.A.RENJIT
SRI.V.E.ABDUL GAFOOR
SRI.A.MOHAMMED SAVAD
SRI.C.Y.VINOD KUMAR
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE CHIEF ENGINEER,
OFFICE OF THE CHIEF ENGINEER, PWD ROADS & BRIDGES,
THIRUVANANTHAPURAM - 695 001.
3 THE SUPERINTENDING ENGINEER,
PWD ROADS & BRIDGES, SOUTH CIRCLE,
THIRUVANANTHAPURAM - 695 001.
4 THE EXECUTIVE ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER, PWD ROADS DIVISION,
THIRUVANANTHAPURAM - 695 001.
BY SRI.VENUGPAL V, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 20242 OF 2019
2
JUDGMENT
The petitioner was a PWD contractor. During the year 1999,
the petitioner was awarded with the work of reconstruction of
Vizhinjam Bridge situated on Thiruvananthapuram - Vizhinjam
Road. According to the petitioner, due to gross delay in handing over
the site, the petitioner was entitled to a revision of the quoted rates.
The petitioner had sought a revision of 54% above the 1999 Schedule
of Rates. However, through Ext.P2 proceedings while granting
enhancement of rates (considering the delay in handing over the
site) the enhancement granted was only 35% above the 1999
Schedule of Rates and only for the work done after 31.12.2002. The
petitioner approached this Court by filing W.P.(C)No.11926 of 2015,
which was disposed of by Ext.P3 judgment setting aside Ext.P2
order and directing reconsideration of the matter. This Court had
interfered with Ext.P2 order specifically on the ground that the case
of the petitioner that certain other contractors similarly situated had
been granted 65% enhancement over the 1999 Schedule of Rates had
not been considered and the reason for declining the enhancement
as sought for by the petitioner is not discernible from Ext.P2 and on
the ground that Ext.P2 proceeds only the basis of the
recommendation made by the Chief Engineer. In compliance with
WP(C) NO. 20242 OF 2019
the directions contained in Ext.P3 judgment of this Court in W.P.
(C)No.11926 of 2015, the Government passed Ext.P4 order which
was again challenged by the petitioner by filing W.P.(C)No.7493 of
2018. This Court through Ext.P6 judgment dated 30.07.2018 set
aside Ext.P4 order upon the finding that the matter was not
considered in terms of the directions issued by this Court in Ext.P3
judgment. Thereafter, the Government has passed Ext.P7 order
considering all contentions taken by the petitioner and finding that
the petitioner is entitled to 35% above the 1999 Schedule of Rates in
respect of all the works without restricting it in any manner as was
originally done through Ext.P2 order. Therefore, in addition to the
amount sanctioned earlier i.e. Rs.22,55,655/-, an additional amount
of Rs.3,54,367/- was sanctioned to be paid to the petitioner.
2. The learned Government Pleader would submit with
reference to the statement filed in this case that the Government
have considered the entire matter in Ext.P7 and has found that the
petitioner is entitled only to 35% above the 1999 Schedule of Rates
for the entire work done by the petitioner. It is submitted that the
said decision is not illegal or arbitrary warranting interference at the
hands of this Court under Article 226 of the Constitution of India. It
is also submitted that the question as to whether the petitioner is
WP(C) NO. 20242 OF 2019
entitled to any further amount is essentially a disputed question of
fact, which cannot be adjudicated in proceedings under Article 226
of the Constitution of India.
3. Having considered the contentions raised and having
perused Ext.P7 order dated 24.05.2019, I am of the view that the
petitioner has not made out any case for grant of relief. It is clear
from Ext.P7 that the Government decided to restrict the claim of the
petitioner for enhancement to 35% above the 1999 Schedule of
Rates, after taking into consideration of the fact that in almost
identical circumstances for the Thrikkannapuram Bridge, 35% above
the 1999 Schedule of Rates alone was granted to the contractor.
Ext.P7 order also records that for works tendered by the PWD Roads
& Bridges, South Circle, Thiruvananthapuram, the enhancements
awarded ranged from 30 to 35% above the estimate rate and hence,
the claim of the petitioner for enhancement can be fixed at 35%
above the 1999 Schedule of Rates. It is also found that the contractor
has already been awarded a sum of Rs.1,38,31,058/- which was
Rs.33,23,335/- more than the estimate rate based on the 1999
Schedule of Rates. In other words, Ext.P7 has sanctioned
enhancement at the rate of 35% for all the work completed by the
petitioner above the 1999 Schedule of Rates, while the claim of the
WP(C) NO. 20242 OF 2019
petitioner was for 54%. In the facts and circumstances of the case, I
find no ground made out for interference with Ext.P7 order. A
question as to whether the petitioner must be granted further
enhancement is not a claim that can be adjudicated in proceedings
under Article 226 of the Constitution of India. Ext.P2 order was set
aside by this Court only on the ground that there was no proper
consideration of the contentions taken by the petitioner. Ext.P4
order was set aside on the ground that on reconsideration, the
matter had not been considered as directed by this Court in Ext.P3
judgment. There is no finding on the merits of the petitioner's claim
for enhancement at the rate of 54% above the 1999 Schedule of
Rates. All the claims of the petitioner have been considered in Ext.P7
order and the Government have decided to grant enhancement at
35% above the 1999 Schedule of Rates for all the work done by the
petitioner. There is no illegality, irrationality or impropriety in
Ext.P7 warranting interference with it in exercise of jurisdiction
vested in this Court under Article 226 of the Constitution of India.
The writ petition fails and it is accordingly dismissed.
Sd/-
GOPINATH P.
JUDGE
DK
WP(C) NO. 20242 OF 2019
APPENDIX OF WP(C) 20242/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF RECOMMENDATION DATED
06.06.06 OF THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF G.O. (RT) NO. 942/14/PWD
DATED 04.07.2014.
EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 28.11.2016
EXHIBIT P4 TRUE COPY OF G.O. (RT) NO.
1814/2017/PWD DATED 4.12.2017
EXHIBIT P5 TRUE COPY OF HEARING NOTE RECEIVED
UNDER RTI ACT.
EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 30.7.2018 I
WPC NO.7493/2018 PASSED BY THIS HONBLE
COURT.
EXHIBIT P7 TRUE COPY OF GO (RT) NO.606/2019/PWD
DATED 24.5.2019
EXHIBIT P8 TRUE COPY OF RELEVANT EXTRACT OF THE
HEARING NOTE
EXHIBIT P9 TRUE COPY OF SALE DEED EXECUTED BY THE
PETITIONER WITH THE SECRETARY KERALA
GOVERNMENT SECRETARIAT STAFF HOUSING
CO-OPERATIVE SOCIETY LTD ON 12.06.2008
EXHIBIT P10 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE CHIEF MANAGER, THE FEDERAL BANK
LTD. PAPPANAM CODE BRANCH ON 07.04.2017
