Mohammed Akbar.V vs State Of Kerala
2025 Latest Caselaw 763 Ker

Kerala High Court

Mohammed Akbar.V vs State Of Kerala on 9 July, 2025

Author: N.Nagaresh

Bench: N.Nagaresh

                                                        2025:KER:50167


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE N.NAGARESH

     WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947

                       WP(C) NO. 31965 OF 2024

PETITIONER:

          MOHAMMED AKBAR.V
          AGED 46 YEARS
          S/O. ABDUL HAJI, VEMMULLY HOUSE,
          EDAYATTUR P.O, MELATTUR,
          MALAPPURAM DISTRICT, PIN - 679326


          BY ADVS.
          SHRI.JACOB SEBASTIAN
          SHRI.WINSTON K.V
          SMT.ANU JACOB
          SHRI.BHARATH KRISHNAN G.




RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY TO GOVERNMENT,
          PUBLIC WORKS DEPARTMENT,
          GOVERNMENT SECRETARIAT, SECRETARIAT P.O,
          THIRUVANANTHAPURAM, PIN - 695001

    2     THE SUPERINTENDING ENGINEER
          PUBLIC WORKS DEPARTMENT,
          OFFICE OF THE SUPERINTENDING ENGINEER,
          NORTH CIRCLE, PWD COMPLEX,
          KOZHIKODE DISTRICT, PIN - 673001

    3     THE EXECUTIVE ENGINEER
          PUBLIC WORKS DEPARTMENT (BUILDINGS) DIVISION,
                                               2025:KER:50167
W.P.(C) No.31965/2024
                           :2:


          OFFICE OF THE EXECUTIVE ENGINEER,
          CIVIL STATION, PALAKKAD DISTRICT,
          PIN - 678001

    4     THE ASSISTANT EXECUTIVE ENGINEER
          PUBLIC WORKS DEPARTMENT (BUILDINGS),
          OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER,
          SUB-DIVISION CHITTUR, PUDUNAGARAM P.O,
          PALAKKAD DISTRICT, PIN - 678101

    5     THE ASSISTANT ENGINEER
          PUBLIC WORKS DEPARTMENT (BUILDINGS) SECTION,
          OFFICE OF THE ASSISTANT ENGINEER, ALATHUR,
          PALAKKAD DISTRICT, PIN - 678541

          BY SMT. ANIMA M., GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.06.2025, THE COURT ON 09.07.2025
DELIVERED THE FOLLOWING:
                                                                2025:KER:50167
W.P.(C) No.31965/2024
                                      :3:




                           N. NAGARESH, J.

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                      W.P.(C) No.31965 of 2024

          `````````````````````````````````````````````````````````````
                 Dated this the 9th day of July, 2025


                            JUDGMENT

~~~~~~~~~

Petitioner is a PWD A-Class Contractor.

The petitioner undertook the work of construction of building

for the Government UP School at Kanakkanthuruthy in

Palakkad District. An agreement was executed on

10.07.2020. The work had to be completed within 15

months.

2. The petitioner states that after executing the

agreement, the petitioner requested the 4 th respondent to

handover the site. The site was not ready for handing over as

there were two old buildings in the site and those buildings 2025:KER:50167

had to be demolished. The 4 th respondent later informed the

petitioner that the site is ready for handover. The petitioner

inspected the site and found that the site was full of debris

and is not hindrance free.

3. The petitioner informed respondents 4 and

5 that the work of excavation for site levelling and depositing

the excavated earth on bank could not be executed since

there was no space available for depositing the excavated

earth in the site premises. Later, the 3 rd respondent made

arrangements for auctioning the excavation and removal of

earth from the site. The petitioner had to return the site to the

Department for this purpose.

4. Thereafter, when the petitioner visited the

site, he found two big roots of trees left at the site which

could not be handled even by the excavators. After repeated

requests, the site was handed over to the petitioner in July,

2021. Since many items which were not originally provided

for in the agreement had to be executed, the Department 2025:KER:50167

decided to revise the estimate. In October 2021, the

Assistant Engineer recommended revised estimate for the

work. The revised estimate was approved only on

22.07.2024 as per Ext.P2. In the circumstances, the

petitioner could complete the work only by March, 2023. The

school building was used from the academic year 2023-2024.

5. The petitioner submitted Ext.P4 letter to the

2nd respondent requesting to extend the time for completing

the work upto 31.03.2023 with the same terms and

conditions of agreement, without fine. There was no

response to Ext.P4. In addition to the agreed terms, the

petitioner was called upon to execute some extra items of

work which were executed. The petitioner submitted his bills

and the final bill was for ₹70,00,000/-. The Department

approved the revised estimate. The petitioner was issued

with Ext.P5 letter dated 26.07.2024 requiring him to execute

a supplementary agreement so that his bill can be

processed.

2025:KER:50167

6. When the petitioner approached the 2 nd

respondent in response to Ext.P5, the petitioner learnt that

the respondents have imposed an amount of ₹20,43,844/- as

fine/penalty for delayed completion of work. The 2 nd

respondent stated that the petitioner was exclusively

responsible for the delay and the supplementary agreement

could be executed only on accepting the penalty.

7. The petitioner submitted Ext.P6

representation to the 2nd respondent denying his liability and

requesting to release the bill amounts after executing the

supplementary agreement. The petitioner states that the

failure to complete the work on time can be attributable only

to the delay in handing over the site and the non-sanctioning

of revised estimates. It is highly arbitrary and unreasonable

to require the petitioner to bear the loss arising from the

indecisiveness or delay on the part of the Department in

sanctioning revised estimate.

2025:KER:50167

8. The 4th respondent resisted the writ petition

filing counter affidavit. The 4th respondent stated that the

petitioner having failed to complete the entrusted work within

time, is liable for imposition of fine and penalty under the

Kerala PWD Manual and contractual provisions. The

petitioner requested multiple extensions based on personal

reasons. The petitioner had earlier delayed many other works

entrusted by the Department.

9. The 4th respondent stated that the petitioner

had taken possession of the site on 17.07.2020, which was

after seven days of execution of the agreement. The

demolition of the existing building was part of the agreed

scope of work. The petitioner was obliged to demolish the

existing building and dispose of the debris. The petitioner

was required to resume the work as per communication

dated 19.01.2021 of the 3rd respondent.

10. Initialisation of revised estimate module

does not substantiate the immediate necessity of a revised 2025:KER:50167

estimate. The petitioner had only made a little progress till

October, 2021. The Contractor had not made any

considerable progress, to finalise the revised estimate. The

petitioner was granted extension of time, three times. Yet, the

petitioner failed to complete the work in time.

11. The petitioner, who is responsible for the

delay in execution, is liable to pay liquidated damages as

agreed in the contract. The preparation of a Revised

Estimate necessitates a minimum progress of work to

ascertain the quantities to be revised and the additional items

to be included. The extreme slow progress of work led to

delays in the preparation of the Revised Estimate. Despite

the delay in execution of work, the petitioner was promptly

paid with bills, whenever he made a claim. A total of seven

running bills were passed till date. Those amounts to a total

of ₹1,80,46,663/-.

12. There was no delay in handing over the site.

The site was handed over within seven days from execution 2025:KER:50167

of the agreement. Despite the availability of sufficient space

at the site, even after the deposit of demolition debris and

excavated earth, the petitioner used this as a pretext to delay

the work execution, which was already hindered by his own

negligence. The hindrances claimed to have existed at the

earlier stage of the work were either responsibilities to be

accomplished by the petitioner or could have been easily

handled by him. These issues were never raised as

hindrances, in his earlier applications. Furthermore, even if

the arguments regarding hindrances at the site were

ultimately unsubstantiated, any alleged delay resulting from

such hindrances have been adequately mitigated by the

approval of time extensions.

13. I have heard the learned counsel for the

petitioner and the learned Government Pleader representing

the respondents.

14. The petitioner executed the agreement on

10.07.2020. The work had to be completed within 15 2025:KER:50167

months. The petitioner states that there were two existing

buildings which had to be demolished to start the work. The

4th respondent in his counter affidavit has stated that

demolition of the existing building and disposal of debris

were the responsibility of the petitioner.

15. Ext.R4(d) letter dated 15.01.2021 would

show that the petitioner had informed the Assistant Engineer

regarding the necessity to demolish the two old buildings in

the worksite and removal of debris. By the said Ext.R4(d)

letter dated 15.01.2021, the Assistant Engineer informed the

petitioner that the debris of the removed building has been

deposited in the worksite and that action is in progress to

remove the debris, though in Ext.R4(d).

16. Though the Assistant Engineer in Ext.R4(d)

has alleged that the petitioner is going slow in the work, it is

clear from Ext.R4(d) that the respondents themselves had

the duty to remove the debris from the worksite. Ext.R4(e)

communication dated 18.01.2021 of the Assistant Executive 2025:KER:50167

Engineer would also indicate that there was difficulty for the

petitioner in executing the work because of the deposit of

debris. The contention of the 4 th respondent that it was the

duty of the petitioner to demolish the building and dispose of

the debris, therefore, cannot be accepted in the light of

Exts.R4(d) and R4(e).

17. Ext.P2 is a copy of the details concerning

the work downloaded by the petitioner from the portal of the

Public Works Department. Ext.P2 would indicate that the

revised estimate for the work was created only on

20.10.2021 and it took considerable time for processing and

passing of the revised estimate. The revised estimate was

finally passed only on 22.07.2024. It is to be noted that the

petitioner had completed the work by March, 2023, even

before passing of revised estimate.

18. The agreement was executed on

10.07.2020. The work was to be completed by 16.10.2021.

The petitioner was handed over the work site only in the 2025:KER:50167

month of December, 2021. Ext.P3 fitness certificate would

indicate that the petitioner had completed the work much

before 14.06.2023, the date of Fitness Certificate. As

evidenced by Ext.P2, the revised estimate was passed only

on or after 22.07.2024. In the circumstances, penalising the

petitioner for delay in completion of the work, imposing

penalty or liquidated damages cannot be legally justified.

19. The 2nd respondent is therefore directed to

permit the petitioner to execute the supplementary

agreement for the work without imposing fine/penalty and

release the amount due to the petitioner expeditiously and at

any rate within a period of three months.

The writ petition is allowed as above.

Sd/-

N. NAGARESH, JUDGE aks/07.07.2025 2025:KER:50167

APPENDIX OF WP(C) 31965/2024

PETITIONER'S EXHIBITS

Exhibit-P1 A TRUE COPY OF THE SELECTION NOTICE DATED 24.06.2020 ISSUED BY THE SECOND RESPONDENT.

Exhibit-P2 A TRUE COPY OF THE DETAILS CONCERNING THE WORK DOWNLOADED FROM THE PORTAL OF THE PUBLIC WORKS DEPARTMENT.

Exhibit-P3 A TRUE COPY OF THE FITNESS CERTIFICATE DATED 14.06.2023 ISSUED BY THE FOURTH RESPONDENT FOR THE WORK COMPLETED BY THE PETITIONER.

Exhibit-P4        A TRUE COPY OF THE REPRESENTATION
                  DATED 13.05.2023 SUBMITTED BY THE
                  PETITIONER    BEFORE     THE    SECOND
                  RESPONDENT.
Exhibit-P5        A TRUE COPY OF THE LETTER DATED
                  26.07.2024 ISSUED FROM THE OFFICE OF
                  THE SECOND RESPONDENT.
Exhibit-P6        A TRUE COPY OF THE REPRESENTATION
                  DATED 04.09.2024 SUBMITTED BY THE

PETITIONER TO THE SECOND RESPONDENT. RESPONDENT'S EXHIBITS

Exhibit R 4 (a) A true copy of Acknowledgement form for handling over site to the contractor by the Assistant Engineer dated, 17.07.2020 Exhibit R 4 (c) : True copy of letter dated 22.12.2020 by the petitioner to Assistant Engineer Exhibit R 4 (d) : True copy of the reply sent by the 5th respondent to petitioner dated 15.01.2021 Exhibit R 4 (e) : True copy of the reply sent by the Assistant Engineer (R4) to petitioner dated 18.01.2021 Exhibit R4 (f) True copy of the communication dated 19.01.2021 by the Third respondent to the petitioner 2025:KER:50167

Exhibit R4 (g) : True copy of communication dated 22.06.2021 by the Executive Engineer to the petitioner Exhibit R 4 (h) : True copy of communication by the 5th respondent to the petitioner dated 29.06.2021 Exhibit R4 (i): True copy of communication by the Assistant Executive Engineer to the petitioner dated 30.06.2021 Exhibit R4 (j): True copy of the letter dated 06.10.2021 by the petitioner to the Superintending Engineer Exhibit R4 (k): True copy of the application for extension submitted by the petitioner dated 04.04.2022 Exhibit R4 (l): True copy of the 3rd application for extension of time dated 21.10.2022 by the petitioner Exhibit R4 (m): True copy of the application submitted by the petitioner dated 23.01.2023 Exhibit R4 (n): True copy of the application to extend the time of completion up to 30th November 2023 by the petitioner dated 18.01.2024 Exhibit R4 (b): True copy of the agreement schedule for demolition on the existing building was part of the agreed-upon scope of work as outlined in items 1.001 to 1.008.