Aneesh Appu vs State Of Kerala
2024 Latest Caselaw 37 Ker

Kerala High Court

Aneesh Appu vs State Of Kerala on 3 January, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
                        WP(C) NO. 4703 OF 2023
PETITIONER:

          ANEESH APPU, AGED 35 YEARS, PWD CONTRACTOR, S/O.APPU,
          VELLAYIKUDATH HOUSE, VASUPURAM, MATTATHUR VILLAGE,
          CHALAKUDY TALUK, THRISSUR DISTRICT, PIN - 680684

          LINDONS C.DAVIS
          E.U.DHANYA
          SWATHY A.P.



RESPONDENTS:

    1     STATE OF KERALA, REPRESENTED BY THE SECRETARY,
          REPUBLIC WORKS DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 680684

    2     SUPERINTENDING ENGINEER
          PWD ROADS - CENTRE CIRCLE, OFFICE OF THE SUPERINTENDING
          ENGINEER PWD ROADS, SUB JAIL ROAD, PERIYAR NAGAR,
          ALUVA, ERNAKULAM DISTRICT, PIN - 683101

    3     EXECUTIVE ENGINEER, PWD ROADS DIVISION, NEAR
          RAMANILAYAM, THRISSUR, PIN - 680020

    4     ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION,
          THRISSUR THRISSUR DISTRICT, PIN - 680020

    5     ASSISTANT ENGINEER, PWD ROADS, TOWN SECTION, THRISSUR
          THRISSUR DISTRICT, PIN - 680020

          SRI.P.S.APPU - GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 4703 OF 2023
                                   2


                             JUDGMENT

The petitioner undertook certain works for the Public

Works Department (PWD), but was unable to complete the

same on account of various reasons which, he says, are not

attributable to him. He alleges that, however, in spite of this,

the third respondent - Executive Engineer, has issued Exts.P3

to P6 orders cancelling the contract at his "risk and cost",

followed by Ext.P7 order issued by the 2 nd respondent -

Superintending Engineer, directing him to appear before him

on 03.02.2023, for a hearing to fix the "risk and cost" liability

against him. He thus impugns Exts.P3 to P7 as being illegal

and unlawful.

2. Sri.Lindons C.Davis - learned counsel for the

petitioner, vehemently argued that, as is evident from Exts.P1

and P2 earlier representations made by his client before

respondents 2 and 3 respectively, among the various reasons

that have led to the running contract being unable to be

performed by his client effectively, is the withholding of the

bills and security deposits with respect to the said works and

that of other collateral and earlier works, without any tangible WP(C) NO. 4703 OF 2023

reasons. He submitted that this is a clear case where his client

is financially choked; thus being incapacitated from continuing

with the contract effectively, even though his intention was and

is to honour it fully. He submitted that, therefore, his client

does not stand in the way of the contracts being terminated,

but that the action now proposed in Ext.P7, namely to fix risk

and cost, is illegal and unlawful.

3. Sri.P.S.Appu - learned Government Pleader, in

response, submitted that, as is evident from Exts.P3 to P6, the

Executive Engineer has no other option, but to cancel the

contract awarded to the petitioner and to fix risk and cost

responsibility against him, because he did not respond to any

of the letters issued to him, as have been referred to in the said

orders. He submitted that Exts.P1 and P2 are self-serving

documents now placed on record by the petitioner, in which,

untenable objections have been impelled; and therefore, that

this writ petition is not maintainable. He then argued that,

there was no reason for the petitioner to have approached this

Court at all because, Ext.P7 is only a notice asking him to show

cause why risk and cost is not fixed against him; and that he

can always reply to the same, as also explain why his licences WP(C) NO. 4703 OF 2023

be not cancelled in future. He concluded saying that the

Superintending Engineer will take any further action against

the petitioner only if it is warranted; and that too, after

following due procedure and in terms of law, without any

breach.

4. When I assess and evaluate the afore rival assertions,

it is limpid that there are disputations of facts between the

parties, which cannot be resolved by this Court, while acting

under Article 226 of the Constitution of India. On one hand,

the petitioner says that he has endeavored to complete the

work as per the contract, but was unable to do so on account of

the severe financial crunch brought upon him by the conduct of

the respondents in not releasing the payments in time; while,

on the other, the officials take the stand that the petitioner did

not respond to any of the earlier notices issued to him, thus

constraining the Executive Engineer to issue Exts.P3 to P6

letters, cancelling the contracts and terminating the same

under the risk and cost of the petitioner. As a corollary, the

official respondents maintain that the cancellation of the

licence is a necessary consequence and nothing else.

5. However, it must be borne in mind that it is the WP(C) NO. 4703 OF 2023

specific case of the petitioner that, he was willing and ready to

continue with the work but could not do so on account of the

financial crisis, which was allegedly brought upon him since

the bills entitled to him were not released by the official

respondents. 6. Obviously, these are matters which will

have to be considered comprehensively by the Superintending

Engineer before any further action, to either terminate the

licence of the petitioner, or to cancel the contract at risk and

cost is taken and completed.

7. In the afore circumstances, acceding to the request of

the learned Government Pleader, I allow this writ petition to

the limited extent of granting liberty to the petitioner to make

a detailed objection against Ext.P7 before the Superintending

Engineer; and if this is done within a period of one month from

the date of receipt of a copy of this judgment, the said

Authority will hear him and advert to the said objections; thus

culminating in an appropriate order, detailing the reasons, if

any, for either imposing risk and cost on him, and/or

cancelling his licence - as the case may be.

Needless to say, until such time as the afore exercise is

completed and resultant order communicated to the petitioner, WP(C) NO. 4703 OF 2023

the detriment of either the risk and cost, or the cancellation of

his contract - even if it is to be so ordered by the

Superintending Engineer - shall not be given effect to.

Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 4703 OF 2023

APPENDIX OF WP(C) 4703/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE REPRESENTATION E-MAILED ON 18.01.2023 TO THE 2ND RESPONDENT

Exhibit P2 A TRUE COPY OF THE REPRESENTATION E-MAILED ON 18.01.2023 TO THE 3RD RESPONDENT

Exhibit P3 A TRUE COPY OF THE ORDER NO.D1/PWD/RW/EST/104210/2021 DATED 20.01.2023 ISSUED BY THE 3RD RESPONDENT

Exhibit P4 A COPY OF THE ORDER NO.D1/PWD/RW/EST/104352/2021 DATED 20.01.2023 ISSUED BY THE 3RD RESPONDENT

Exhibit P5 A COPY OF THE ORDER NO.D1/PWD/RW/EST/104313/2021 DATED 20.01.2023 ISSUED BY THE 3RD RESPONDENT

Exhibit P6 A COPY OF THE ORDER NO.D1/PWD/RW/EST/104888/2021 DATED 20.01.2023 ISSUED BY THE 3RD RESPONDENT

Exhibit P7 . A COPY OF THE LETTER NO.FCR-485/2013 DATED 27.01.2023 ISSUED BY THE 2ND RESPONDENT

Exhibit P8 A COPY OF THE WRITTEN SUBMISSION TOWARDS HEARING DATED 03.02.2023 BEFORE THE 2ND RESPONDENT

Exhibit P9 A COPY OF THE INTERIM ORDERS DATED 01.11.2022 IN WP(C) NO.33871/2022

Exhibit P10 . A COPY OF THE REQUEST OF THE PETITIONER DATED 29.10.2022 BEFORE THE 2ND RESPONDENT

Exhibit P11 A TRUE COPY OF THE RELEVANT PAGES OF PWD MANUAL 2012 WP(C) NO. 4703 OF 2023

RESPONDENT EXHIBITS

Exhibit R2(a) A true copy of GO(Rt) No.147/2022/PWD dated 09.02.2022

exhibit R3a GORT 147/2022/PWD dt.9.2.2022