Kerala High Court
Kerala State Rural Roads Development ... vs K.V.Paulose on 11 July, 2025
W.A.No.548 of 2021 1 2025:KER:50640
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
FRIDAY, THE 11
DAY OF JULY 2025 / 20TH ASHADHA,
1947
WA NO. 548 OF 2021
GAINST THE JUDGMENT DATED 26.11.2020 IN WP(C)
A
NO.22315 OF 2020 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 4 IN W.P(C):
1
ERALA STATE RURAL ROADS DEVELOPMENT AGENCY
K
REPRESENTED BY THE COMMISSIONER, 5TH FLOOR,
SWARAJ BHAVAN, NANDANCODE, KOWDIAR P.O.,
THIRUVANANTHAPURAM - 695 003.
2
HE CHIEF ENGINEER
T
LOCAL SELF GOVERNMENT (RD) DEPARTMENT,
GOVERNMENT OF KERALA, 5TH FLOOR, SWARAJ
BHAVAN, NANDANCODE, KOWDIAR P.O.,
THIRUVANANTHAPURAM - 695 003.
3
UPERINTENDING ENGINEER
S
KERALA STATE RURAL ROADS DEVELOPMENT AGENCY,
LOCAL SELF GOVERNMENT (RD) DEPARTMENT,
GOVERNMENT OF KERALA, 5TH FLOOR, SWARAJ
BHAVAN, NANDANCODE, KOWDIAR P.O.,
THIRUVANANTHAPURAM - 695 003.
4
XECUTIVE ENGINEER
E
PROGRAM IMPLEMENTATION UNIT, GOVERNMENT OF
KERALA, DISTRICT PANCHAYATH,
KOTTAYAM - 686 001.
W.A.No.548 of 2021 2 2025:KER:50640
BY ADV SUNIL KUMAR KURIAKOSE, GP
RESPONDENT/PETITIONER IN WP(C):
.V.PAULOSE
K
AGED 67 YEARS
KUNNEL HOUSE, KARKAPPILLY P.O., KOLENCHERY,
ERNAKULAM - 682 311.
BY ADV P.SHANES MATHER
THIS
WRIT
APPEAL
HAVING BEEN
FINALLY
HEARD
ON
7.07.2025,
0 THE COURT ON
11.07.2025 DELIVERED
THE
FOLLOWING:
W.A.No.548 of 2021 3 2025:KER:50640
JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present intra court appeal filed under Section 5 of the
Kerala High Court Act, 1958, assails the judgment dated26.11.2020
passed in W.P(C)No.22315 of 2020, whereby the learned Single
Judgehadallowedthewritpetitionfiledbytherespondentherein.The
appellants herein are the respondents 1 to 4 in the writ petition and
the respondent is the writ petitioner.
2. The respondent had filed the writ petition seeking the
following reliefs:
" 1)ThatallrecordsleadingtoExtP24becalledtothishon'ble
court and a Writ of Certiorari or other order be passed
quashing the same.
2) Issue aWritofmandamusorotherWrit,Orderordirection
bepassedIssueaWritofmandamusoranyotherappropriate
Writ,OrderofDirection,commandingtherespondentstoshow
the borrow pit earth to be usedforfillingtheworksiteasper
the schedule attached to the agreement.
3) Issue a Writ of mandamus or any other appropriate Writ,
OrderofDirection,commandingtherespondentstorevisethe
serial No 2 work in the schedule of work by substituting the
work"borrowpitswithContractorsownearthandtorevisethe
rate accordingly as requested by the petitioner or in the
alternative to relieve the petitioner from the work without
imposing risk and cost and after settling the amounts due to
the petitioner for the work already done and to release the
Bankguarantee,performanceguarantee,andsecuritydeposit
within a time to be fixed by this hon'ble court.
4) Issue a Writ of mandamus or any other appropriate Writ,
Order of Direction commanding the 2nd respondentstopass
W.A.No.548 of 2021 4 2025:KER:50640
rders on Ext P23 within a time to be fixed by this hon'ble
o
court.
5)Suchotherreliefsthatareappropriateandincidentaltothis
writ petition"
3.Thebrieffactsofthecasearethataspertheprayerclause
herein above, writ of mandamus was sought commanding the
appellantstoshowtheborrowpitearthtobeusedforfillingthework
siteasperthescheduleattachedtotheagreementandtorevisethe
serial No.2 work in the schedule of work by substituting the work
borrow pits with contractors own earth and to revise the rate
accordingly as requested by the respondent or in the alternative to
relieve the respondent from the work withoutimposingriskandcost
and after settling the amounts due to the work already done and to
release the Bank Guarantee, Performance Guarantee and Security
Deposit within a fixed time frame.
4. The work allotted to the respondent was in respect of
PMGSY (Phase 5) work of Parippu Thollayirum Manchira road
(PackageNo.KR0709)includingconstructionandmaintenancefor5
years. A disputearosewhennoheedwaspaidtotherequestofthe
respondent to point out the borrow pit earth, so that the work could
be expedited. When the appellants failed or refused to extend the
W.A.No.548 of 2021 5 2025:KER:50640
period of contract, being aggrieved, thewritpetitionwasfiledbythe
respondent with the aforesaid prayers.
5. The learned Single Judge was pleased to allow the writ
petitionbyquashingExt.P24orderpassedbytheExecutiveEngineer
with an observation that it is upto the appellants either to allow the
respondent to continue theworkonthebasisofthefreshtermsand
additional time or else to relieve him without risk and cost. Being
aggrieved, the appellants are before this Court.
6. The learned counsel for the appellants submitted that the
learnedSingleJudgeerredinpassingsuchanorderinasmuchasthe
same could not have been directed since the respondent is an
experienced'A'classcontractorwithwellequippedtechnicalteamof
Engineers, it was his duty to inspect the site and study the site
conditions prior to submission of the tender. It was his prime
responsibility to ensure the availability of earth mentioned as per
Clause 7.1 of the instructions to the bidder of the Standard Bidding
Document. It is also submitted that the respondent had executed
supplementary agreement wherein he had duly agreedthatheshall
not claim any rate enhancement on items or materials. Thelearned
Single Judge failed to consider these aspects.
W.A.No.548 of 2021 6 2025:KER:50640
7.Duringthependencyofthewritappeal,thisCourtvideorder
dated01.04.2022grantedlibertytotheappellantstoproceedfurther.
It is informed at theBarthatduringthependencyofthewritappeal,
the contract stood terminated. The respondent herein is under
process of challenging the termination of contract in a separate
proceedings in accordance with law.
8.The learned counsel for the appellants submitted that,
althoughtimewasextendedtocompletethecontract,therespondent
failedtodoso.Therefore,afterterminationofthecontract,nofurther
extension of time could be granted to the respondent.
9. Learned counsel for the respondent submitted that writ
appeal may be disposed ofwithlibertytotherespondenttoraiseall
the contentions raised in the writ petition in the proceedings where
termination order would be challenged.
10. Heard the learned counsel for the appellants and the
learned counsel appearing for the respondent.
11.Wefindmeritinthesubmissionsofthelearnedcounselfor
the appellants, primarily on the ground that, during the pendencyof
the writ appeal, the contract stood terminated. The learned Single
Judgecouldnothaveadjudicateddisputedquestionsoffactinawrit
W.A.No.548 of 2021 7 2025:KER:50640
petitionfiledunderArticle226oftheConstitutionofIndia.Therefore,
in the fitness of things, it would be appropriate to set aside the
judgmentpassedbythelearnedSingleJudge,grantinglibertytothe
respondent to raise all the contentions urged in the writ petition, in
appropriate proceedings.
12. In view of the aforesaid, the judgment dated 26.11.2020
passedbythelearnedSingleJudgeinW.P.(C)No.22315of2020is
hereby set aside. The respondentisatlibertytochallengetheorder
of termination of the contract, raising all the questions that were
raised in the writ petition. All such questions are left open to be
decided in appropriate proceedings, if any.
Withtheaforeobservation,thiswritappealisallowed.Noorder
as to costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
MC/09.07
