Kerala High Court
M/S. Kavumkal Road Builders vs State Of Kerala on 29 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 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WP(C) NO. 8113 OF 2024
PETITIONER:
M/S. KAVUMKAL ROAD BUILDERS,
CHEMPANOLI, VECHOOCHIRA P.O,
PATHANAMTHITTA DISTRICT -689 511,
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
ABY SKARIA
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY
DEPARTMENT OF PUBLIC WORKS, KERALA GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 THE CHIEF ENGINEER PWD (ROADS )
OFFICE OF THE CHIEF ENGINEER LMS VELLAYAMBALAM RD,
UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695033.
3 THE SUPERINTENDING ENGINEER
OFFICE OF SUPERINTENDING ENGINEER,
PWD ROADS AND BRIDGES, SOUTH CIRCLE,
THIRUVANANTHAPURAM, PIN - 695033.
4 THE EXECUTIVE ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION, NEAR COLLECTORATE,
CHITTOOR, PATHANAMTHITTA, PIN - 689645
5 ASSISTANT EXECUTIVE ENGINEER
PWD ROADS SUB DIVISION
MINI CIVIL STATION,
PATHANAMTHITTA, PIN - 689645
WP(C) NO. 8113 OF 2024
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6 ASSISTANT ENGINEER
OFFICE OF ASSISTANT ENGINEER
PWD ROADS SECTION
KONNI PATHANAMTHITTA, PIN - 689691.
SMT. VIDYA KURIAKOSE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 8113 OF 2024
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JUDGMENT
The petitioner impugns Ext.P6 order of
the Superintending Engineer of the PWD Roads
and Bridges, South Circle,
Thiruvananthapuram, which has imposed upon
them a fine of Rs.50,000/-, as a condition
for extension of the term of a contract
earlier awarded to them, asserting that this
is illegal and unlawful, because the
extension in question has become warranted
solely on account of reasons that are
attributable to the respondents, and not to
them. They rely on Exts.P2, P3, P4, P10 and
P12 in substantiation; and argues that Ext.P6
has been issued in a mechanical fashion,
without proper application of mind.
2. Sri.V.Philip Mathews - learned
WP(C) NO. 8113 OF 2024
counsel for the petitioner, submitted that,
the attempt of the respondents, in imposing
penalty on his client, is to find a
scapegoat, to escape from the responsibility
of the actions they are guilty of. He thus
reiteratingly submitted that Ext.P6 is
blatantly illegal and unlawful.
3. Smt.Vidya Kuriakose - learned
Government Pleader, in response, submitted
that the afore assertions are vehemently
denied by the respondents; and that the facts
involved in this case speak for itself,
because the contract was entered in the year
2021, with a term of 8 months, but that even
as of date, it remains uncompleted, pointing
clearly to the culpability of the petitioner.
Smt.Vidya Kuriakose then added that, however,
if the petitioner only requires the afore
WP(C) NO. 8113 OF 2024
representations to be considered and to be
heard before any further action is taken by
the Superintending Engineer, she will not
stand in the way of appropriate orders being
issued. She conceded that, in certain similar
matters, this course has already been adopted
by this Court.
4. When I consider and evaluate the
afore rival submissions, on the touchstone of
Ext.P6 - which is the order impugned, it is
luculent that the Superintending Engineer has
granted extension of time of the contract to
the petitioner, by imposing a fine of
Rs.50,000/-. It is well settled that a fine
can be imposed only if it is established that
the delay was caused on account of any factor
that can be put against the petitioner.
5. In the case at hand, the petitioner
WP(C) NO. 8113 OF 2024
strongly argues that the delay, if any, was
not on account of any reason that can be
attributed to them, but solely because of
factors that can only be seen against
respondents herein. He relies on Exts.P2, P3,
P4, P10 and P12, as I have already said
above.
6. I am, therefore, of the firm view
that the entire matter will require to be
reconsidered by the Superintending Engineer,
dehors Ext.P6, adverting to the afore
materials and after hearing the petitioner.
In the afore circumstances, I order this
writ petition and set aside Ext.P6; with a
consequential direction to the Superintending
Engineer to reconsider the request of the
petitioner for extension of the term of the
contract, adverting specifically to Exts.P2,
WP(C) NO. 8113 OF 2024
P3, P4, P10 and P12, after affording them an
opportunity of being heard; thus culminating
in an appropriate order and necessary action
thereon, as expeditiously as is possible, but
not later than one month from the date of
receipt of a copy of this judgment.
Even though I have quashed Ext.P6, I
clarify that if the Superintending Engineer
is to still find that a fine has to be
imposed against the petitioner, after the
afore exercise, he will be at liberty to
issue orders that he may deem fit.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
akv
WP(C) NO. 8113 OF 2024
APPENDIX OF WP(C) 8113/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF LETTER NUMBER NO.DB7
/RD /2020 /4211 DATED 12.08.2021 BY
THIRD RESPONDENT TO PETITIONER
EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED
13.05.2022 BY THE PETITIONER TO THE
THIRD RESPONDENT FOR EXTENSION OF TIME
OF COMPLETION WITH REMARKS OF
DEPARTMENTAL OFFICER
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED
24.10.2022 BY PETITIONER TO THE THIRD
RESPONDENT FOR EXTENSION OF TIME FOR
COMPLETION WITH REMARKS OF
DEPARTMENTAL OFFICER
EXHIBIT P4 TRUE COPY OF LETTER NO.
SESCRD/969/2022-DB7-PWD DATED
18.11.2022 BY THE THIRD RESPONDENT TO
THE FOURTH RESPONDENT APPROVING
INITIAL LEVEL AND PROPOSALS
EXHIBIT P5 TRUE COPY OF THE REQUEST DATED
18.08.2023 BY PETITIONER BEFORE THIRD
RESPONDENT FOR EXTENDING TIME FOR
COMPLETION ALONG WITH PROFORMA TO
ACCOMPANY RECOMMENDATION FOR EXTENSION
OF TIME FOR COMPLETION OF WORK UP TO
31-10-2023
EXHIBIT P6 TRUE COPY OF ORDER NUMBER
SESCRD/969/2022-DB7-PWD DATED
13.09.2023 BY THIRD RESPONDENT
EXTENDING TIME OF COMPLETION OF WORK
OF PROVIDING BM AND BC FOR ARUVAPPULAM
-VAKAYAR ROAD CH 0/000 - 3/450
EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF THE
WP(C) NO. 8113 OF 2024
GENERAL CONDITIONS OF CONTRACT
CONTAINING CLAUSE 15 MENTIONED IN
EXHIBIT P6
EXHIBIT P8 TRUE COPY OF LETTER NUMBER AEERD -SD
0PTA /274 /2023- A1-PWD DATED
13.10.2023 BY THE FIFTH RESPONDENT TO
THE FOURTH RESPONDENT
EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED
20.10.2023 TO THE THIRD RESPONDENT BY
PETITIONER
EXHIBIT P10 TRUE COPY OF THE LETTER DATED
06.12.2023 FROM FIFTH RESPONDENT TO
THE TAHSILDAR (LR), KONNI
EXHIBIT P11 TRUE COPY OF THE STATEMENT SHOWING THE
TREASURY TERM DEPOSITS FROM 1 -4-2023
TILL 5.2.2024
EXHIBIT P12 TRUE COPY OF LETTER NO .K.S.4211/2020
DATED 15.02.2024 FROM SIXTH RESPONDENT
TO FIFTH RESPONDENT
