Kerala High Court
E.M.Paulose vs State Of Kerala on 20 October, 2021
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021/28TH ASWINA, 1943
WP(C) NO. 21126 OF 2021
PETITIONER:
E.M.PAULOSE, AGED 58 YEARS,
S/O. LATE MATHAI, EDAPPARA (H),
KADAYIRUPPU P.O., KOLENCHERY,
PIN CODE - 682 311.
ERNAKULAM DISTRICT.
BY ADVS.
K.S.BABU
N.SUDHA
BABU SHANKAR
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
ITS SECRETARY TO
WATER RESOURCES DEPARTMENT,
SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 THE MANAGING DIRECTOR,
KERALA WATER AUTHORITY,
JALA BHAVAN, VELLAYAMBALAM,
THIRUVANANTHAPURAM - 695 033.
3 THE CHIEF ENGINEER,
KERALA WATER AUTHORITY,
OFFICE OF THE CHIEF ENGINEER,
HOSPITAL ROAD, ERNAKULAM,
KOCHI - 682 035.
4 THE SUPERINTENDING ENGINEER,
KERALA WATER AUTHORITY,
OFFICE OF THE SUPERINTENDING ENGINEER,
PUBLIC HEALTH CIRCLE, HIGH ROAD,
SHAKTAN THAMPURAN NAGAR,
THRISSUR - 680001.
WP(C) No.21126/2021
:2 :
5 EXECUTIVE ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER,
P.H. DIVISION, IRINJALAKUDA - 680 121.
6 ASSISTANT EXECUTIVE ENGINEER,
KERALA WATER AUTHORITY,
P.H. SUB DIVISION,
NATTIKA - 680 566.
7 KERALA INFRASTRUCTURE INVESTMENT FUND BOARD,
2ND FLOOR, FELICITY SQUARE, M.G. ROAD,
STATUE, THIRUVANANTHAPURAM -695 001,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
R2-R6 BY ADV. SRI.BIJILY JOSEPH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.21126/2021
:3 :
JUDGMENT
~~~~~~~~~ Dated this the 20th day of October, 2021 The petitioner is a Contractor who has been awarded with Ext.P1 work, namely KIIFB-CWSS to Nattika Firka-replacing 500 MM premo pipe with supply, laying, testing, commissioning 400 MM/500 MM/600 MM DI K9 Pipe and road restoration work after pipeline work from Valappad- Sethukulam - Vadanapally, Ganeshamangalam Sump 11850 M. The petitioner seeks to direct the 4 th respondent- Superintending Engineer to take action on Ext.P9 to foreclose the agreement within a time stipulated by this Court. The petitioner further seeks to direct the 4 th respondent to release the amount under Ext.P6, security and performance guarantee furnished by way of bank guarantee and treasury savings bank fixed deposits.
WP(C) No.21126/2021:4 :
2. The petitioner would submit that he has taken financial assistance from Federal Bank for the purpose of executing the work. The petitioner has paid substantial amount for purchase of DI pipes from West Bengal. According to the petitioner, there was inordinate delay on the part of the 4th respondent and others to submit Work Breakdown Structure (WBS) to KIIFB. Since the validity of the agreement expired on 23.02.2021 and no rider agreement has been entered into, the petitioner sought to foreclose the agreement without risk and cost and to get the security deposit released. The petitioner accordingly submitted Ext.P9 representation to the 4th respondent.
3. The learned counsel for the petitioner urged that the respondents have failed to comply with their contractual obligation by not giving required facility to the petitioner to execute the work. In fact, the 4 th respondent has invited tender even without arranging the required fund. In the circumstances, the petitioner is entitled to get the agreement foreclosed.
WP(C) No.21126/2021:5 :
4. Heard the learned counsel for the petitioner, the learned Government Pleader representing the 1 st respondent, the learned Standing Counsel representing respondents 2 to 6 and the learned Standing Counsel for the 7 th respondent.
5. As the petitioner has already approached the 4 th respondent filing Ext.P9 representation seeking to close the Agreement dated 08.09.2020 without any risk and cost and also to release the amount due to the petitioner, this Court is of the view that the 4th respondent should consider the request of the petitioner at the first instance and this Court need not adjudicate the issue involved in the case at this point of time.
In such circumstances, the writ petition is disposed of directing the 4th respondent to consider Ext.P9 representation submitted by the petitioner and pass orders thereon within a period of three weeks.
Sd/-
N. NAGARESH, JUDGE aks/20.10.2021 WP(C) No.21126/2021 :6 : APPENDIX OF WP(C) 21126/2021 PETITIONER'S EXHIBITS Exhibit P1 THE TRUE COPY OF THE WORK ORDER NO.KWA-
PHC/TSR/D1-987/17 DATED 24.02.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.
Exhibit P2 THE TRUE COPY OF THE AGREEMENT
NO.07/SE/PHC/TSR/2020-21 DATED
08.09.2020.
Exhibit P3 THE TRUE COPY OF THE LETTER NO.
KWA/PHC/TSR/DI-987/17 DATED 30.10.2020 ISSUED BY THE 4TH RESPONDENT TO M/S. CIPET.
Exhibit P4 THE TRUE PHOTOSTAT COPY OF THE PROCEEDINGS DATED 17.09.2019 NO.KIIFB- WRD-003-09 WS TO PERUNAD, ATHIKAYAM VILLAGE PHASE-II.
Exhibit P5 THE TRUE PHOTOSTAT COPY OF MINUTES OF MEETING DATED 01.03.2021.
Exhibit P6 THE TRUE COPY OF THE INVOICE DATED 31.03.2021 FOR A VALUE OF RS.
12,17,291/-(RUPEES TWELVE LAKH SEVENTEEN THOUSAND TOW HUNDRED AND NINETY ONE ONLY) Exhibit P7 THE TRUE COPY OF THE REPRESENTATION DATED 06.09.2021 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT.
Exhibit P8 THE TRUE PHOTOSTAT COPY OF THE RECEIPT
OF ACKNOWLEDGEMENT OF THE 4TH
RESPONDENT.
Exhibit P8(a) THE TRUE PHOTOSTAT COPY OF THE RECEIPT
OF ACKNOWLEDGEMENT OF 5TH RESPONDENT. Exhibit P8(b) THE TRUE PHOTOSTAT COPY OF THE RECEIPT OF ACKNOWLEDGEMENT OF 6TH RESPONDENT Exhibit P9 THE TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 10.09.2021.
Exhibit P10 THE TRUE PHOTOSTAT COPY OF THE RECEIPT OF ACKNOWLEDGMENT DATED 15.09.2021 OF 4TH RESPONDENT.
WP(C) No.21126/2021:7 : Exhibit P10(a) THE TRUE PHOTOSTAT COPY OF THE RECEIPT OF ACKNOWLEDGMENT DATED 15.09.2021 OF 5TH RESPONDENT.
Exhibit P11 THE TRUE PHOTOSTAT COPY OF THE LETTER DATED 23.09.2021 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.
ncd