Kerala High Court
Marymatha Construction Company vs State Of Kerala on 28 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 41853 OF 2018
PETITIONER/S:
M/S.MARYMATHA CONSTRUCTION COMPANY
XMARYMATHA SQUARE, ARAKKUZHA ROAD, MUVATTUPUZHA,
ERNAKULAM -686 661. REPRESENTED BY ITS PARTNER SABU CHERIAN.
BY ADVS.
MATHEW NEVIN THOMAS
SANTHOSH MATHEW
ARUN THOMAS(K/844/2007)
KARTHIKA MARIA(K/001293/2016)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
SHINTO MATHEW ABRAHAM(K/977/2018)
ABI BENNY AREECKAL(K/001482/2019)
KARTHIK RAJAGOPAL(K/1450/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 005.
2 THE PRINCIPAL SECRETARY
DEPARTMENT OF IRRIGATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM -695 005.
3 THE SUPERINTENDING ENGINEER
DEPARTMENT OF IRRIGATION, KUTTANAD DEVELOPMENT CIRCLE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 005.
BY ADVS.
SRI.K.V.SOHAN, STATE ATTORNEY
ADVOCATE GENERAL OFFICE KERALA
SHRI.S.KANNAN, SENIOR G.P.(GP-49)
THIS WRIT PETITION (CIVIL) HAVING BEEN FIANLLY HEARD ON 24.05.2024,
ALONG WITH WP(C).42182/2022, THE COURT ON 28.05.2024 DELIVERED THE
FOLLOWING:
W.P.(C)Nos.41853/2018 & 42182/2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 42182 OF 2022
PETITIONER/S:
MARYMATHA INFRASTRUCTURE (P) LTD.
(FOREMERLY MARYMATHA CONSTRUCTION COMPANY), MARYMATHA SQUARE,
ARAKKUZHA ROAD, MUVATTUPUZHA, ERNAKULAM. REP. BY ITS MANAGING
DIRECTOR, PIN - 686661
BY ADVS.
MATHEW NEVIN THOMAS
SANTHOSH MATHEW
ARUN THOMAS(K/844/2007)
KARTHIKA MARIA(K/001293/2016)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
SHINTO MATHEW ABRAHAM(K/977/2018)
ABI BENNY AREECKAL(K/001482/2019)
KARTHIK RAJAGOPAL(K/1450/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
RESPONDENT/S:
1 STATE OF KERALA.
REP. BY ITS SECRETARY, DEPARTMENT OF IRRIGATION, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695005
2 THE SUPERINTENDING ENGINEER,
O/O. THE SUPERINTENDING ENGINEER, KUTTANAD DEVELOPMENT CIRCLE,
VAYASKKARAKUNNU, KOTTAYAM., PIN - 686001
3 THE EXECUTIVE ENGINEER
O/O. EXECUTIVE ENGINEER, IRRIGATION OFFICE, KUTTANAD DEVELOPMENT
DIVISION, THANNEERMUKKOM, ALAPPUZHA., PIN - 688525
BY ADVS.
SHRI.S.KANNAN, SENIOR G.P.(GP-49)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.05.2024,
ALONG WITH WP(C).41853/2018, THE COURT ON 28.05.2024 DELIVERED THE FOLLOWING:
W.P.(C)Nos.41853/2018 & 42182/2022
3
JUDGMENT
1. Since the issues involved in these writ petitions arise from
the very same subject matter, I consider and dispose of both
these writ petitions by a common judgment.
2. The Petitioner firm in W.P.(C)No.41853/2018 is the lead
partner in a joint venture which was awarded the work -
Kuttanad Package Modernisation of Thanneermukkam Bund
to Manage Salinity and to Minimise Ecological Decay -
Construction of Central Portion of Thanneermukkam
Barrage (Third stage works) in Alappuzha District on
16.11.2013 for an estimated cost of Rs.1,80,66,79,202/- by
the Respondent No.1. Petitioner executed Ext.P1 Agreement
dated 27.06.2014 with the Government. Ext.P1 produced by
the petitioner contains relevant Bill of Quantities and
Estimates. Three items of work, viz. Item Nos.3, 6 & 73
mentioned in the Bill of Quantities and Estimates in Ext.P1
involved removal of sand. Items No.3 relates to the
construction of a temporary bund during the course of
W.P.(C)Nos.41853/2018 & 42182/2022
execution of the work and removal of the same. Item No.6
relates to excavation of ordinary soil for foundation with all
leads and lifts. Item No.73 relates to hydraulic excavation
for dismantling the road. According to the petitioner, the
ownership of the sand excavated in these three items of
work belonged to it. For construction of the temporary bund
which is intended to block the entry of water during piling
and other works, petitioner will have to source the
necessary materials including sand for the said construction
and when it is dismantled, the petitioner is free to deal with
the same. It is clear from item No.6 that the sand obtained
from the excavation of the foundation belonged to the
petitioner. As regards item No.3 also, the case of the
petitioner is that it relates to dismantling of cofferdam and
hence the same is to be utilised for construction of link
bridges as a part of the project. During the course of the
work, some extra items of work and excess quantities of
work were necessitated and hence Ext.P2 Supplemental
Agreement dated 03.03.2016 was also executed. Several
issues were cropped up in relation to dismantling of
cofferdam and various high level meetings were convened.
W.P.(C)Nos.41853/2018 & 42182/2022
During the pendency of those meetings the local authority
namely Thanneermukkam Grama Panchayat laid a claim
over the sand which is proposed to be obtained from
dismantling of the cofferdam and obtained from the lake as
a result of the dredging activities. Asserting this right on the
basis of Section 218 of the Kerala Panchayat Raj Act, the
Thanneermukkam Grama Panchayat preferred a
Representation dated 05.09.2018. Thereafter,
Thanneermukkam Grama Panchayat approached this Court
by filing W.P.(C)No.29906/2018 and this Court disposed it
as per Ext.P3 judgment dated 18.09.2018 at the admission
stage itself without notice to the petitioner herein directing
the Additional Chief Secretary of Irrigation Department to
consider and pass appropriate orders on the Representation
submitted by the Panchayat. Since the said writ petition was
disposed without hearing the petitioner and without
recognising the right of the petitioner to be heard in the
matter as it has claim ownership over the sand, the
petitioner challenged Ext.P3 judgment by filing
W.A.1920/2018. The Division Bench of this Court disposed
W.A.No.1920/2018 as per Ext.P3(A) judgment dated
W.P.(C)Nos.41853/2018 & 42182/2022
01.10.2018 directing the petitioner to be heard during
consideration of the Representation submitted by the
Panchayat. Since no Additional Chief Secretary was
functioning in the Department of Irrigation then, the
Representation was ordered to be decided by the Chief
Secretary. The Respondent No.2 - Principal Chief Secretary
considered the Representation of the Panchayat after giving
Ext.P4 Notice to all the affected parties including the
petitioner and passed Ext.P5 order dated 13.11.2018
rejecting the claim of ownership of the Thanneermukkam
Grama Panchayat over the sand and entering findings with
regard to the quantity of the sand entitled by the petitioner
and the quantity of the sand to be deposited with the
Irrigation department. As per Ext.P5 the quantity of the
dredged sand/earth entitled to the petitioner is limited to a
quantity of 6635M3 and balance quantity of the sand to be
deposited with the Irrigation Department is 211267 M3.
According to the petitioner, the only issue to be considered
by the Respondent No.2 as per the direction of this Court in
Ext.P3 and Ext.P3(A) judgments is regarding the entitlement
of the Thanneermukkam Grama Panchayat over the sand
W.P.(C)Nos.41853/2018 & 42182/2022
removed by the petitioner and the Respondent No.2 acted
beyond his authority and entered findings with regard to the
entitlement of the sand and its quantity by the petitioner in
violation of the principles of natural justice. On these
contentions the petitioner filed W.P.(C)No.41853/2018
challenging Ext.P5 order so far it affects its rights under
Ext.P1.
3. This Court admitted the writ petition on 20.12.2018. The
petitioner filed I.A.No.1/2019 producing Ext.P6
Communication dated 21.12.2018 issued by the Respondent
No.3 directing it to complete all the balance works including
extra works by executing Supplementary Agreement before
31.12.2018 and threatening to terminate the contract at risk
and costs on failure to do so, and sought for stay of all
further proceedings pursuant to Ext.P6 on the ground that
the if Supplemental Agreement is executed as demanded in
Ext.P6, it would be detrimental to the contention of the
petitioner. This Court passed Interim Order dated
21.01.2019 staying all further proceedings on Ext.P6 till
29.01.2019 and thereafter it was extended from time to
time.
W.P.(C)Nos.41853/2018 & 42182/2022
4. The respondents filed I.A.No.3/2019 seeking permission to
remove sand/earth from the cofferdam on the ground that it
is absolutely necessary for the interest of public safety to
avoid flood that; Ext.R3(a) dated 07.05.2019 produced
therein issued by the District Collector and Chairman of the
Disaster Management Authority directs removal of
earth/road bund/cofferdam and that the Respondent No.3
has already issued Ext.R3(b) e-tender Notice dated
14.05.2019. This Court passed Interim Order dated
23.05.2019 allowing I.A.No.3/2019 directing the
respondents to remove the sand, measuring the quantity in
the presence of the petitioner or its representatives and file
a report with respect to the removal of the sand, the
quantity and all other details enabling this Court to finally
adjudicate the matter.
5. The learned State Attorney a Memo dated 27.06.2019
producing the Report of the respondent No.3 dated
17.06.2019 regarding the work of removal process.
6. The learned State Attorney filed a Statement dated
19.10.2019 on behalf of the respondent Nos.1 & 2 justifying
Ext.P5 order contending, inter alia, that the claim of
W.P.(C)Nos.41853/2018 & 42182/2022
Thanneermukkam Grama Panchayat and the claim of the
petitioner was considered together in Exts.P5 as the claim of
one among the claimants will negate the claim of the other
and both the claims will be prejudice to the right of the
Government and hence it was actually necessitated to
adjudicate the claim of the petitioner along with the claim of
the Thanneermukkam Grama Panchayat; and that the
petitioner was given effective and meaningful opportunity to
substantiate his claim over the sand. The Statement also
detailed as to how the figurers were arrived at in Ext.P5.
7. W.P.(C)No.42182/2022 is filed by a Private Limited
Company which is the successor of the Petitioner Firm in
W.P.(C)No.41853/2018 challenging Ext.P6 order dated
27.08.2022 passed by the Respondent No.3 /Executive
Engineer by which it is informed that as per the direction of
the Respondent No.2/Superintending Engineer an amount
Rs.59.52 lakhs is withheld from the pending claims of the
petitioner on account of an audit enquiry of extra
expenditure of Rs.59.52 lakhs to the Government for
dismantling the cofferdam which is related to the subject
work. It is clear from Ext.P6 that the amount of
W.P.(C)Nos.41853/2018 & 42182/2022
Rs.59.52 lakhs is withheld as the Government incurred
expenses for removing the cofferdam permitted to be
removed as per Interim Order dated 23.05.2019 in
I.A.No.3/2019 in W.P.(C)No.41853/2018.
8. The respondent No.2 filed Counter Affidavit dated
02.02.2023 stating that the Respondent Nos.2 & 3 are fully
justified in withholding the amount of Rs.59.52 lakhs as per
Ext.P6 order. The Respondent No.2 filed an Additional
Counter Affidavit dated 23.02.2024 also elaborating his
contentions with respect to the entitlement of sand by the
petitioner and its quantity by the petitioner.
9. I heard the Learned Senior Counsel Sri. Santhosh Mathew
instructed by Adv.Sri. Mathew Nevin Thomas for the
petitioner and the Learned Senior Government Pleader
Sri.S.Kannan for the respondents in both these Writ
Petitions.
10. The learned Senior Counsel Sri. Santhosh Mathew advanced
arguments against the impugned orders in these writ
petitions mainly on the ground of violation of principles of
natural justice. According to him, the question of
entitlement of sand by the petitioner and the assessment of
W.P.(C)Nos.41853/2018 & 42182/2022
the quantity was beyond the authority of the respondent
No.2 while passing Ext.P5 order impugned in
W.P.(C)No.41853/2018. He specifically invited my attention
to the claim of the Panchayat disclosed in Ext.P3 and
Ext.P3(A) judgments and the directions of this Hon'ble Court
in those judgments limited to the same. With respect to
Ext.P6 order impugned in W.P.(C)No.42182/2023 also, he
submitted that the same is a non-speaking order passed
without notice to the petitioner. He added that the
petitioner is not a party to the audit enquiry mentioned in
Ext.P6 order.
11. On the other hand, the learned Senior Government Pleader
Sri.S.Kannan strongly opposed the prayers in the writ
petition by arguing that the Chief Secretary has considered
the entitlement of the petitioner over the sand and assessed
the quantity, since the direction of this Court to consider
the ownership of the sand necessarily involves adjudication
on ownership of the sand by other persons. He argued that
the Chief Secretary considered the entitlement of sand by
the petitioner and the Government and the quantities with
relevance to the provisions of Ext.P1 agreement and
W.P.(C)Nos.41853/2018 & 42182/2022
supplementary agreements executed by the petitioner
relying on the documents admitted by the petitioner and the
process involved in only mere calculation. Ext.P5 order was
passed after giving sufficient opportunity to the petitioner.
The Petitioner has not stated in the writ petition as to how
the calculation is wrong. He invited my attention specifically
to Paragraph Nos.4 to 6 of the Additional Affidavit filed by
the Respondent No.2 in W.P(C) No.42182/2022 with
relevance to Ext.R2(C) produced therein/the Extract of
Approved Estimate dated 27.02.2016 to substantiate his
contentions. Paragraph Nos. 4 to 6 details as to how the
quantity of 6635M3 is arrived at as belongs to the petitioner.
He pointed out item No.6 in Ext.R2(C) in which the quantity
as per revised estimate is shown as 6635 M3. He argued that
Ext.P2 Supplementary Agreement produced in W.P(c)
No.41853/2018 was executed on the basis of Ext.R2(C) and
hence the contention of the petitioner with regard to the
quantities of the sand found in Ext.P5 as belonged to the
petitioner and the Government is thoroughly unsustainable.
12. After hearing the counsel for the petitioner and the learned
Senior Government Pleader, I am of the view that the
W.P.(C)Nos.41853/2018 & 42182/2022
impugned orders in these writ petitions are liable to be set
aside on the ground of violation of the principles of natural
justice.
13. The Ext.P5 order in W.P.(C)No.41853/2018 is a non-
speaking order with respect to the entitlement of the
petitioner over the sand and its quantity. As per Ext.P3 and
Exts.P3(A) judgments, the Chief Secretary is directed to
consider the claim of the Panchayat alone over the sand and
not the claim of the petitioner. The claim of the petitioner is
to be adjudicated on the basis of the Agreements executed
by the petitioner with the respondents and the documents
pertaining to the work. While receiving Ext.P4 prior to
Ext.P5 order, the petitioner could not have contemplated
that his claim also will be considered along with the claim of
the Panchayat. It appears that petitioner has not put
forward his arguments in support of his claim over the sand
and the quantity. In Ext.P5 none of the arguments with
respect to his entitlement is considered. Though the
quantities of the sand belonged to the petitioner and the
Government are assessed in Ext.P5 order the details as to
how the same is arrived at is also not disclosed in Ext.P5
W.P.(C)Nos.41853/2018 & 42182/2022
order. Even the learned Government Pleader is trying to
substantiate Ext.P5 order not with reference to the findings
therein but with reference to the contentions in the
pleadings and the documents produced by the respondents.
Since these arguments were not before the Chief Secretary,
the petitioner could not get any opportunity to
answer/rebut/clarify the same. I am of the view that, the
Chief Secretary has not considered the rival contentions
with respect to the entitlement of sand. Accordingly, Ext.P5
order is liable to be set aside and the Respondent
No.2/Principal Chief Secretary is liable to be directed to
pass fresh orders with respect to the entitlement of sand by
the petitioner and the quantity after adverting to the
relevant documents after giving effective opportunity to t he
petitioner.
14. With respect to the impugned order in
W.P.(C)No.42182/2022 also, I am of the view that Ext.P6 is
liable to be set aside as the same is a non-speaking one.
Moreover, it stated that Ext.P6 is issued as per the direction
from the Respondent No.2/Superintending Engineer. The
Respondents have no case that the petitioner was heard
W.P.(C)Nos.41853/2018 & 42182/2022
before passing orders either by Respondent No.2 or the
Respondent No.3 withholding an amount of Rs.59.52 lakhs.
The Interim Order in I.A.No.3/2019 in W.P.(C)
No.41853/2018 has merely permitted the respondents to
remove the sand only. It does not speak anything about the
expenses involved therein and the person who is liable to
meet the same. As such, the respondents are bound to
decide as to who is the person to bear the expenses for
removal of the works permitted to be done in the said
Interim Order. That apart, the quantum of the expenses is
also a matter to be adjudicated after notice to the person
responsible to meet the same. On these reasons, Ext.P6 is
also liable to be set aside for violation of the principles of
the natural justice. Since the Respondent No.3/Executive
Engineer passed Ext.P6 order on the basis of the direction
given by the Respondent No.2, I deem it appropriate to
direct the respondent No.2/Superintending Engineer to pass
fresh orders in the matter after hearing the petitioner.
15. Accordingly, the above writ petitions are disposed of
with the following directions:
W.P.(C)Nos.41853/2018 & 42182/2022
i. Ext.P5 order in W.P.(C)No.41853/2018 so far it
decides the entitlement of sand and the quantities
between the petitioner and the Government is set
aside and the Respondent No.2 is directed to pass
fresh order with respect to the same after giving
an effective opportunity to the petitioner within a
period of three months from the date of receipt of
a copy of this judgment.
and
ii. Ext.P6 Communication in W.P.(C)No.42182/2022
is set aside and the Respondent No.2 is directed
to consider the matter afresh and pass
appropriate Orders after giving effective
opportunity to the petitioner within a period of
three months from the date of receipt of a copy of
this judgment. Needless to say that, if the
Respondent No.2 wants to rely on any document
which is not furnished to the petitioner including
audit document, a copy of the same shall be
furnished to the petitioner and he shall be given
W.P.(C)Nos.41853/2018 & 42182/2022
opportunity to submit its objections, if any, with
respect to it.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/27.
W.P.(C)Nos.41853/2018 & 42182/2022
APPENDIX OF WP(C) 41853/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 27/06/2014 ALONG
WITH THE RELEVANT PAGES OF THE BILL OF QUANTITIES AND
ESTIMATES.
EXHIBIT P2 TRUE COPY OF THE SUPPLEMENTAL AGREEMENT ALONG WITH
THE BILL OF QUANTITIES.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 01.10.2018 IN WRIT
APPEAL NO.1920/2018.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 18/09/2018 IN WP(C)
NO.29906 OF 2018.
EXHIBIT P4 TRUE COPY OF THE NOTICE NO.IR4/302/18/WRD DATED
15.10.2018.
EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED
13.11.2018.
EXHIBIT P6 A TRUE COPY OF THE LETTER NO.D4-
489/SE/KDC/KTM/VOL.4/2013 DATED 21.12.2018.
RESPONDENT ANNEXURES
ANNEXURE R1(A) TRUE COPY OF THE RELEVANT PAGES OF THE APPROVED
REVISED ESTIMATE NO.II DATED 07.09.2018
ANNEXURE R3(A) TRUE COPY OF THE ORDER DATED 07.05.2019 PASSED BY THE
HON'BLE DISTRICT COLLECTOR AND CHAIRMAN OF DISTRICT
DISASTER MANAGEMENT AUTHORITY.
ANNEXURE R3(B): TRUE COPY OF THE E-TENDER NOTICE
NO.D7/944/SE/KDC/KTM/2019 DATED 14.05.2019.
W.P.(C)Nos.41853/2018 & 42182/2022
APPENDIX OF WP(C) 42182/2022
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE AGREEMENT NO. 04/SE/KDC/KTM/2014-15
DATED 27.06.2014
EXHIBIT P2 TRUE COPY OF THE SUPPLEMENTAL AGREEMENT NO.1 TO
ORIGINAL AGREEMENT NO. 04/SE/KDC/2014-2015
EXHIBIT P3 TRUE COPY OF THE G.O.(MS) NO. 59/2018/ WRD DATED
13.11.2018
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 21.01.2019 IN I.A.
2/2019 IN W.P.(C) NO. 41853/2018
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.05.2019 IN I.A.
3/2019 IN W.P.(C) NO. 41853/2018
EXHIBIT P6 TRUE COPY OF THE LETTER NO. D1-KDT/67/2014 -15/VOL II
DATED 27.08.2022 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LETTER NO. MIPL-C/TB/22/3652 DATED
28.09.2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD
RESPONDENT
EXHIBIT P8 TRUE COPY OF THE LETTER NO.
D4/489/SE/KDC/KTM/VOL.5/2013 DATED 29.09.2022 ISSUED
BY THE 3RD RESPONDENT
RESPONDENT EXHIBITS
EXHIBIT R2(A) A TRUE COPY OF THE SUPPLEMENTAL AGREEMENT NO. 11
DATED 08.07.2022 EXECUTED BY THE PETITIONER WITH THE
SECOND RESPONDENT
EXHIBIT R2(B) TRUE COPIES OF THE RELEVANT EXTRACT OF CLAUSE
2116.2,2116.2.1,2116.1(2) AND 2116.1(3) OF THE PWD
MANUAL, REVISED EDITION OF 2012
EXHIBIT R2(C) TRUE COPY OF THE RELEVANT EXTRACT OF THE APPROVED
REVISED ESTIMATE NO.1 DATED 27.02.2016
