Kerala High Court
K.M.Shafi vs District Collector, Kasaragod on 4 August, 2025
2025:KER:58206
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
WP(C) NO. 21326 OF 2016
PETITIONER:
1 *K.M.SHAFI
S/O.MOHAMMED, AGED 70 YEARS, MELPARAMBA,
KALANAD P.O., KASARAGOD.
*DECEASED. LEGAL HEIRS IMPLEADED
2 *ADDL.P2 ABDUL MAJEED K.S
AGED 47 YEARS, S/O. (LATE) K.M. SHAFI, NOOR MAHAL,
THOTTIL, DELI, KALANAD, KASARAGOD,PIN - 671317
*IS IMPLEADED AS ADDL.P2 AS PER ORDER DATED
30/06/2025 IN IA 1/2025
3 *ADDL.P3 MOHAMMED ASHKAR
AGED 43 YEARS, S/O. LATE K.M. SHAFI, THODE HOUSE
DELI, KALANAD, KASARAGOD, PIN - 671317
*IS IMPLEADED AS ADDL.P3 AS PER ORDER DATED
30/06/2025 IN IA 1/2025
4 *ADDL.P4 KADEEJATH RAZEENA
AGED 36 YEARS,D/O. LATE K.M. SHAFI, THODE HOUSE
DELI, KALANAD, KASARAGOD, PIN - 671317
*IS IMPLEADED AS ADDL.P4 AS PER ORDER DATED
30/06/2025 IN IA 1/2025)
5 *ADDL.P5 ASIATH RELIATH
AGED 33 YEARS, D/O. LATE K.M. SHAFI, THODE HOUSE,
DELI, KALANAD, KASARAGOD, PIN - 671317
*IS IMPLEADED AS ADDL.P5 AS PER ORDER DATED
30/06/2025 IN IA 1/2025
6 *ADDL.P6 ZOHARA
AGED 63 YEARS, W/O. LATE K.M. SHAFI, THODE HOUSE,
DELI, KALANAD P.O., KASARAGOD, PIN - 671317
*IS IMPLEADED AS ADDL.P6 AS PER ORDER DATED
30/06/2025 IN IA 1/2025
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W.P.(C) No.21326 of 2016
BY ADVS.
SHRI.K.V.PAVITHRAN
SHRI.JAYANANDAN MADAYI PUTHIYAVEETTIL
SRI.NIAS MOOPAN
SHRI.P.SAJU
RESPONDENTS:
1 DISTRICT COLLECTOR, KASARAGOD
2 TAHSILDAR
REVENUE RECOVERY, KASARAGOD.
3 EXECUTIVE ENGINEER
PWD, BUILDINGS DIVISION, KASARAGOD.
4 SUPERINTENDING ENGINEER
PWD BUILDINGS (NORTH) CIRCLE, KOZHIKODE.
5 CHIEF ENGINEER
PWD BUILDINGS, THIRUVANANTHAPURAM.
6 STATE OF KERALA
REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT,
THIRUVANANTHAPURAM.
BY ADV.
SRI.TONY AUGUSTINE, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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3
W.P.(C) No.21326 of 2016
JUDGMENT
Original writ petitioner was awarded the work of construction
of Sub Registrar office building at Rajapuram in Kasaragode under
an agreement dated 01.02.2006. Period fixed for completion of
the work was nine months and the probable amount of contract
was Rs.7,60,395/-. Original writ petitioner could not carry out the
work within the period of nine months. He fell ill. On account of his
poor health condition, he made a request to relieve him. During
the pendency of this Writ petition, the original petitioner expired
and wife and children got impleaded to prosecute the Writ Petition
further.
2. It was contended that the delay in conducting the work
and completing the same was on account of the change of design
and time taken for obtaining revised administrative sanction.
Contractor approached the Hon'ble Minister for Public Works and
submitted a representation requesting to relieve him from the
contract without any liabilities.
3. On 09.03.2012, the 3rd respondent issued Ext.P6 notice
to the contractor fixing a liability of Rs.13,06,726/-. Contractor
submitted a reply to Ext.P6 on 28.03.2012. He again addressed
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the Hon'ble Minister. However, the 4th respondent issued final
notice and terminated the contract. By the letter dated
31.10.2015 issued in this regard, liability of Rs.25,83,698/- was
fixed on the contractor/original petitioner after deducting the
security deposit of Rs.39,000/-. Ext.P8, the PAC after
rearrangement of the work has been shown as Rs.33,83,093/-.
Original PAC before rearrangement was Rs.7,60,395/-. Final
liability was calculated as Rs.26,22,698/-. Less security, the
liability was fixed at Rs.25,83,698/-. Work was thereafter
rearranged. Revenue recovery proceedings were initiated for
recovery of the amount as fixed in Ext.P8. The Writ Petition was
filed challenging Ext.P8 and P10 revenue recovery notice. The 3 rd
respondent filed a detailed counter affidavit disputing the
contentions of the petitioner.
4. Heard the learned counsel appearing for the petitioner
and the learned Government Pleader for the respondents.
5. Learned counsel for the petitioner mainly raised a
contention that the work was rearranged in 2015 following the
schedule of rates in 2012. The learned counsel pointed out that
the original work was as per the schedule of rates of 2004. He
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submitted that it is highly unjust and improper to calculate the
risk and cost and fix liability on the basis of the revised schedule
of rates as the original work was awarded following the schedule
of rates of 2004 which was much less. The learned counsel relied
on circular dated 08.08.2023 issued by the PWD wherein it has
been stated that balance estimate of the work terminated at the
risk and cost needs to be prepared using the same schedule of
rates with which the original estimate was prepared. The learned
counsel also pointed out that in the PWD Manual also it has been
provided that rearrangement of works should be done as
expeditiously as possible and there should not be any substantial
changes in the specifications on the balance works rearranged.
The learned counsel further contended that only 38 items of work
were included in the original agreement whereas in the revised
agreement total number of 54 items of works were included.
Hence he contended that the PAC after rearrangement of work
was for 54 items of work instead of 38 items of work which were
originally contemplated. He hence submitted that the calculation
of final liability is therefore incorrect, unjust and improper. He
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submitted that Ext.P8 and further proceedings for recovery are not
legally sustainable.
6. The learned Government Pleader submitted that the
petitioner failed to execute the work within the stipulated time
limit without any justifiable reasons. Other than the poor health
condition, no reason sufficient for excusing the petitioner from the
responsibility was pointed out. He submitted that as narrated in
the counter affidavit, the petitioner did not start the work within
the agreement period and hence the work was terminated by
order dated 04.12.2007. On the basis of the request of the
original petitioner, the termination was revoked. Even after
revocation, he didn't turn up to start the work. Thereafter he
explained his inability to execute the work. Hence the contract was
terminated with cost by proceedings dated 15.11.2010. The
learned Government Pleader pointed out that as per the provisions
of the contract vide Clause No.13 of notice inviting tender, the
contractor was liable for the cost of rearrangement of the work.
The learned Government Pleader further submitted that as per the
terms of the contract, the contractor was liable to pay for the loss
sustained by the Government for rearrangement of the work. He
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also pointed out that there was no delay on the part of the
Department in obtaining administrative sanction as contended in
the Writ Petition. He made specific reference to the contents of
paragraph No.5 of the counter affidavit in this regard.
7. After hearing the learned counsel for the petitioner as
also the learned Government Pleader, I am of the view that in
view of the specific contentions raised by the leaned counsel for
the petitioner that more items of work were included when the
work was rearranged and the entire amount for rearrangement of
work, calculated on the basis of the 54 items of work was not
liable to be taken into account as the original agreement was only
for 38 items of work needs to be considered by the Executive
Engineer. It is not discernible on a reading of Ext.P8 as to whether
the inclusion of additional items of work was taken into account by
the Executive Engineer while fixing liability on the contractor.
8. It is also to be noted that the learned counsel for the
petitioner pointed out the circular issued by the Department on
08.08.2023 which stipulates that the balance estimate of the
works terminated at the risk and cost needs to be prepared using
the same SOR in which the original estimate was prepared.
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9. The learned Government Pleader submitted that the
said circular was issued only in 2014 and therefore the benefit of
the circular cannot be claimed by the petitioners. Learned counsel
for the petitioner responded stating that the said practice was
followed before the issuance of the circular and the Executive
Engineer overlooked the same while issuing Ext.P8. This aspect
also needs to be considered by the Executive Engineer.
10. To facilitate such a reconsideration of the entire issue
by the Executive Engineer, I set aside Ext.P8. The Executive
Engineer shall reconsider the matter and take a fresh decision. In
order to ensure fairness in the decision making process, I direct
that the Executive Engineer shall provide opportunity of hearing to
the additional petitioners or their representative before taking a
fresh decision in the matter. Additional petitioners shall be free to
raise all available contentions before the Executive Engineer. All
relevant aspects shall be taken note of by the Executive Engineer
before taking a fresh decision. The Executive Engineer shall issue
notice to the additional petitioners after fixing a date for hearing.
The entire exercise shall be completed and a fresh decision shall
be taken within a period of four months from the date of receipt of
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a copy of this judgment. Needless to say, as I set aside Ext.P8,
revenue recovery proceedings initiated on the basis of same shall
also stand quashed.
With the above directions, the Writ Petition is disposed of.
Sd/-
S.MANU
JUDGE
PV
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APPENDIX OF WP(C) 21326/2016
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SCHEDULE OF WORKS TO BE
DONE ALONG WITH PLAN.
EXHIBIT P2 TRUE COPIES OF THE MEDICAL REPORTS OF THE
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE LETTER DT.19-2-2009 OF
R3 TO R4 TO TAKE DECISION TO RELIEVE THE
PETITIONER FOR CONTRACT.
EXHIBIT P4 TRUE COPY OF THE LETTER DT.27-2-2009 OF
R4 TO R5 TO RELIEVE THE PETITIONER FOR
THE CONTRACT.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DT.6-2-
2009 OF PETITIONER ADDRESSED TO THE
HON'BLE MINISTER.
EXHIBIT P6 TRUE COPY OF THE LETTER DT.9-3-2012 OF R3
TO THE PETITIONER INTIMATING THE
LIABILITY AS RS.13,06,726/-
EXHIBIT P6A TRUE COPY OF THE REPLY DT.28-3-2012 OF
THE PETITIONER ADDRESSED TO R3.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION TO THE
HON'BLE MINISTER THROUGH THE MLA
EXHIBIT P8 TRUE COPY OF THE LETTER DT.31-10-2015 OF
R3 FIXING THE LIABILITY AS RS.25,83,698/-
EXHIBIT P9 TRUE COPY OF THE AGREEMENT SCHEDULE AND
PLAN OF THE SUBSEQUENTLY ARRANGED WORK.
EXHIBIT P10 TRUE COPY OF THE DEMAND NOTICE DT.31-5-
2016 ISSUED BY R2 UNDER REVENUE RECOVERY
ACT.
