Kerala High Court
P.Abdul Rasak vs The State Of Kerala on 21 February, 2018
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939
WP(C).No. 3664 of 2011
PETITIONER:
P.ABDUL RASAK, AGED 56 YEARS,
S/O.P.M.MOIDEENKUTTY HAJI, PULLIYIL MADASSERI HOUSE,
P.O.MELMURI, (P.W.D. CONTRACTOR)
BY ADV. K.ABDUL JAWAD
RESPONDENT(S):
1. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
MINOR IRRIGATION DEPARTMENT.
TRIVANDRUM-695 001
2. THE SUPERINTENDING ENGINEER,
MINOR IRRIGATION CIRCLE, KOZHIKODE-673 001
3. THE EXECUTIVE ENGINEER,
MINOR IRRIGATION DEPARTMENT, MALAPPURAM-676 505
4. ASSISTANT ENGINEER,
MINOR IRRIGATION SECTION, THIRURANGADI-676 306
BY GOVERNMENT PLEADER SRI.JESTIN MATHEW
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-02-2018,
THE COURT ON 21-02-2018 DELIVERED THE FOLLOWING:
PBS
WP(C).No. 3664 of 2011
APPENDIX
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REQUEST ALONG WITH THE RECOMMENDATION
TO THE IIND RESPONDENT DT. 08.05.2007.
EXHIBIT P2 TRUE COPY OF THE RECOMMENDATION OF THE ASST. EXECUTIVE
ENGINEER DT. 10.05.07.
EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR EXTENSION OF TIME DT.
14.02.08.
EXHIBIT P4 TRUE COPY OF THE LETTER DT. 03.06.08, THE PETITIONER
SAYING EXECUTION OF WORK ONLY ON REFIXING OF RATE AND
MAKING THE PLACE FIT FOR WORK.
EXHIBIT P5 TRUE COPY OF THE PETITION SUBMITTED BY PETITIONER DT.
07.01.09.
EXHIBIT P6 TRUE COPY OF THE ORDER GRANTING EXTENSION OF TIME TILL
31.05.09 DT. 09.01.09
EXHIBIT P7 TRUE COPY OF THE LETTER OF THE AGRICULTURAL OFFICER
,KRISHI BHAVAN, NANNAMBRA G.P. DT. 13.10.08.
EXHIBIT P8 TRUE COPY OF THE COMMUNICATION ISSUED BY THE IIIRD
RESPONDENT DT. 15.12.08.
EXHIBIT P9 TRUE COPY OF THE NEWS ITEM PUBLISHED I N DESHABHIMANI
DAILY DT. 20.03.08.
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION ISSUED BY THE IIIRD
RESPONDENT TO THE PETITIONER DT. 04.02.09.
EXHIBIT P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER TO THE IIIRD RESPONDENT DT. 09.03.09
EXHIBIT P12 TRUE COPY OF CIRCULAR NO. 60/80 DT. 10.10.08.
EXHIBIT P13 TRUE COPY OF THE ORDER OF RE ARRANGING THE WORK AT THE
RISK AND COST OF PETITIONER DT. 03.02.09.
EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN W.P.(C). NO. 9071/09 DT.
20.03.09.
EXHIBIT P15 TRUE COPY OF THE JUDGMENT IN W.A. NO. 1162/09 DT.
30.09.09.
EXHIBIT P16 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT ON 20.10.09.
EXHIBIT P17 TRUE COPY OF THE NOTIFICATION NO.DB 2/TN/2 09-10 DT.
23.09.09. OF THE IIND RESPONDENT.
WP(C).No. 3664 of 2011
EXHIBIT P18 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 37562/09 DT.
19.01.10.
EXHIBIT P19 TRUE COPY OF THE LETTER IIND RESPONDENT DT. 18.02.2010.
EXHIBIT P20 TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 7013/10 DT.
01.07.10.
EXHIBIT P21 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DT.
23.09.10.
RESPONDENT'S EXHIBIT NIL
/TRUE COPY/
PA TO JUDGE
PBS
SHAJI P. CHALY, J.
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W.P.(C) No.3664 of 2011
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Dated this the 21st day of February, 2018
JUDGMENT
This writ petition is filed by the petitioner seeking to quash Ext.P21 order passed by the State Government, whereby the termination of the work awarded to the petitioner at the risk and cost of the petitioner by forfeiting the Security Deposit and retention amount, by the statutory authority, is upheld by the Government. Material facts for the disposal of the writ petition are as follows:
2. Petitioner was awarded with the work of improvements to drainage system in Moraya Kappu in Nannambra Grama Panchayat. As per agreement dated 22.02.2007, petitioner executed the work during February, 2007 and completed about 20% of the work. There were disputes with respect to the work carried out by the petitioner and finally, as per Ext.P13 order dated 03.02.2009, the work was terminated at the risk and cost of the petitioner by forfeiting the security deposit and retention amount to the Government. Accordingly, the remaining work was ordered to W.P.(C) No.3664 of 2011 2 be re-arranged through other agencies at the risk and cost of the petitioner.
3. The said order was challenged by the petitioner before this Court by filing W.P.(C) No.9071 of 2009, which was dismissed by a learned Single Judge of this Court as per the judgment dated 20.03.2009, stating that the facts and circumstances are disputed, and therefore, the intervention of the Court under writ jurisdiction is not warranted. Petitioner has preferred appeal against the said Ext.P14 judgment, and as per Ext.P15 judgment dated 30.09.2009, the appeal was disposed of, directing the State Government to consider the request of the petitioner taking into account Ext.P12 Circular issued by the State Government in respect of benefits given to contractors avoiding risk and cost. Accordingly, petitioner has submitted Ext.P16 representation before the State Government, requesting to exempt the petitioner from the work without risk and cost of the petitioner.
4. In the meanwhile, fresh tender was invited evident from Ext.P17. Thereupon, petitioner approached this Court by filing W.P.(C) No.37562 of 2009, wherein, Ext.P18 judgment is rendered on 19.01.2010, directing the State Government to W.P.(C) No.3664 of 2011 3 take a decision on the representation submitted by the petitioner after hearing the petitioner, in the light of the directions issued in the Division Bench judgment, within a period of four months from the date of receipt of a copy of the judgment. In the meanwhile, 3rd respondent was directed to complete the final measurement with notice to the petitioner and the same was directed to be recorded duly, enabling the petitioner to raise his claim before the Government. On the basis of the directions issued, Ext.P19 order was passed, stating that a tentative loss of Rs.1,37,32,572/- is sustained to the Government on re-arrangement of the above said work, and as per the agreement, petitioner is liable to remit the amount to the Government within 15 days from the date of receipt of the letter.
5. Being aggrieved by Ext.P19 order, petitioner has filed W.P.(C) No.7013 of 2010 and has secured Ext.P20 judgment dated 01.07.2010, whereby Ext.P19 order was set aside and directed to re-consider the entire aspects by complying with the earlier directions issued by this Court and taking into account Ext.P12 Circular issued by the State Government. It was thereupon that Ext.P21 order dated W.P.(C) No.3664 of 2011 4 23.09.2010 is passed, whereby it is found that the termination of the work awarded to the petitioner at the risk and cost of the petitioner is in accordance with law, and no manner of interference is warranted to the same.
6. Respondents 1, and 3 and 4 have filed separate counter affidavits, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the site was handed over to the petitioner on 26.02.2007 and as per the terms of the agreement, the work should have been completed by 25.02.2008. However, petitioner failed to complete the work within the agreed period and in spite of repeated notices dated 23.02.2008, 27.01.2009 and 04.02.2009.
7. Considering the request of the contractor dated 14.05.2008, the time for completion of the work was extended up to 31.05.2009. Even though petitioner has stated in the writ petition that the extension was granted on 09.10.2009, it was actually granted on 09.01.2009 and the same has been admitted by the petitioner, evident from Ext.P6. But, petitioner neither executed supplemental agreement nor resumed the work in time. The District Collector, M.L.A W.P.(C) No.3664 of 2011 5 concerned, Block Panchayat authorities etc. had made earnest efforts to resume the work within the stipulated time.
However, petitioner failed to do so. A meeting was conducted under the Chairmanship of the M.L.A on 27.01.2009 and discussed the matter in detail. But, petitioner did not accept the recommendation in the meeting to resume the work based on the agreement conditions.
8. It is also stated that, even after issuing the final notice directing the contractor to resume the work within 7 days from the date of receipt of the same, he did not respond positively. Thereafter, a meeting was conducted under the Chairmanship of Minister for Water Resources on 27.02.2009 in the presence of the local M.L.A, and decided to re-arrange the work as per departmental rules in force. The department made all attempts for doing the work in time. The Department officials, Panchayat authorities and farmers who were present in the meeting offered their support to the contractor to resume the work. But the contractor failed to complete the work and he is solely responsible for the same.
9. It is further submitted that, the agreement was terminated on 03.03.2009 under justifiable circumstances. W.P.(C) No.3664 of 2011 6 The contractor is bound to carry out the work in or under water, in accordance with the stipulations of the bid document as well as the agreement. Water is to be drained out for the execution of the work. Moreover, adequate amount of Rs.2,34,000/- was included in the estimate to bail out excess water and another amount of Rs.3,59,020/- for putting up ring bund to prevent water from entering the site. Considering the request of the contractor, dated 14.02.2008, the time for completion was extended up to 31.05.2009, however, no efforts were taken by the contractor to execute the supplemental agreement and to carry out the work.
10. It is also stated that, a meeting of the farmers, members of Padasekhara Samithi and peoples representatives was held at the Conference Hall of Nannambra Grama Panchayat on 16.10.2008. At the meeting, the farmers agreed to do the cultivation using such seeds (short duration crop) so as to harvest early, thereby, to clear the field during the middle of February itself. Even though the farmers cleared the field during February, 2009, the contractor was not ready to resume the work. The contractor, in his petition, requested that his agreement should be terminated without the risk and W.P.(C) No.3664 of 2011 7 cost and the payment should be made for the works as per Ext.P12 circular dated 10.10.2008. However, it is submitted that, petitioner is not entitled to secure any benefits as per the said circular, since the work was terminated due to the fault of the petitioner himself, and in that circumstances, the benefits of the scheme cannot be extended to him as per the terms of the scheme itself.
11. It is further stated that, if the petitioner had completed the work, he has a claim for higher rate for the cement and steel. During the last two years, he never stated in his letter that he had stopped the work due to hike in the rate of cement and steel. Moreover, the site was handed over to the petitioner in time. In the circumstances, the contractor cannot be spared on account of the benefits of the scheme. All attempts were made by the statutory authorities as well as the M.L.A in order to encourage the petitioner to carry on with the work and all helps were provided by the farmers also. However, petitioner did not make any effort at all to complete the work in accordance with the terms of the agreement. It is further stated that the entire aspects put forth by the petitioner were considered by the State Government as per W.P.(C) No.3664 of 2011 8 Ext.P21 and the order was passed after hearing the petitioner.
12. I have heard learned counsel for the petitioner and the learned Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties.
13. The fact discussions made above would make it clear that, the issue has a checkered history and this is the fourth round of litigation before this Court from the year 2009 onwards. The sole question to be considered is, whether any illegality is remaining in Ext.P21 order passed by the State Government, pursuant to the direction issued by this Court in Ext.P20. I have gone through Ext.P21 in extenso, and as is stated in the counter affidavit, the 1st respondent has taken into account all the attendant circumstances and has arrived at a finding that the work had to be terminated, since the petitioner did not make any effort to carry on with the work, even though the site was handed over in time and necessary help was extended by all the statutory authorities, local M.L.A as well as the farmers in order to bail out the water and carry out the construction. I have also gone through all the documents produced by the petitioner along with the writ petition.
W.P.(C) No.3664 of 2011 9
14. Initially, the petitioner had a case that due to collection of water and due to unprecedented rain, petitioner could not carry on with the construction and complete the same within the time frame provided under law. From the documents, it is evident that, the respondents have realized the situation and has recommended for extension of time ultimately. It is evident from Ext.P6 letter produced by the petitioner that the time was extended on 09.01.2009 up to 31.05.2009. Meetings were convened by the statutory authorities in the presence of M.L.A and officers of the Panchayat and even farmers. It is also evident that, farmers have agreed that they will cooperate and make available the paddy fields to carry on with the construction during February, 2009 itself. Even though petitioner has a contention that the farmers did not make available the paddy fields in order to enable the petitioner to bail out the water, there are no convincing evidence produced by the petitioner before this Court in respect of the same. It is also evident that, during the course of the correspondences, petitioner has made requests for enhancing the rate.
W.P.(C) No.3664 of 2011 10
15. Even though petitioner has a case that he is entitled to get benefit of Ext.P12 circular, from the provisions contained thereunder, it is clear that, in order to avail the benefit of the scheme, there should not have been any laches on the part of the contractor. It is also equally correct that if the petitioner had carried on with the construction, he is entitled to get hike in the cost of the cement and steel. Anyhow, as per the directions of the Division Bench in Ext.P15 judgment, petitioner has submitted Ext.P16 representation before the State Government, wherein, it is admitted that petitioner could complete only 20% of the work, and it is also admitted that a meeting was convened on 16.10.2008 in the presence of the officials of the Panchayat, representatives of the people, officials and the farmers and it became impossible to take a decision and again a meeting was convened including the local M.L.A. As decided in the meeting, the farmers agreed to clear the agricultural crops during February, 2009. Though the petitioner did every arrangements till 09.03.2009, no facility was available in the paddy field and all attempts of the petitioner became futile. It is worthwhile to note that, in Ext.P16 representation, petitioner did not have a case that the W.P.(C) No.3664 of 2011 11 farmers did not co-operate to carry out harvest during February, in order to enable the petitioner to bail out the water.
16. The paramount contention advanced by learned counsel for the petitioner is that, the farmers did not co- operate and therefore, petitioner could not carry on with the work. However, from Ext.P16, it is clear that, petitioner did not have any such case, except which I have stated specifically above. It is also clear from the terms and conditions of the contract that petitioner was well aware of the nature of the work to be carried out, by taking into account the geographical features, and bailing out water, in order to carry on with the construction. It is also clear from the pleadings put forth by the petitioner, and materials available from the documents produced that, separate financial stipulations are made in order to bail out water and do the necessary work. Therefore, petitioner cannot turn around and say that he was not aware of the geographical situation.
17. On the other hand, learned Government Pleader has advanced arguments on the basis of the counter affidavit filed by respondents 1 to 3, and contended that the work had to be W.P.(C) No.3664 of 2011 12 terminated on account of negligence on the part of the petitioner. It is also submitted that, since petitioner was responsible for not carrying out the work in time, petitioner is not entitled to get any benefits of Ext.P12 scheme launched by the Government as per the Circular.
18. I have evaluated the rival contentions raised by the respective counsel and on perusal of the pleadings and documents, I am satisfied that the State Government has considered the entire aspects of the matter in Ext.P21 and after analysing the entire situation alone, it has come to a finding that the termination of the work at the risk and cost of the petitioner is in accordance with law. I also find that petitioner was heard and reasons are assigned in Ext.P21, taking into account the entire aspects of the matter. Therefore, in my considered opinion, there are no justifiable circumstances existing in order to review the decision rendered by the State Government as per Ext.P21. Moreover, it is a well settled proposition in law that a writ court considering the order passed by a statutory authority need only look into whether the principles of natural justice are complied with by the statutory authority and reasons are assigned, which action W.P.(C) No.3664 of 2011 13 would eliminate arbitrariness. As I have pointed out earlier, petitioner was heard and all the documents and other reports available were considered by the State Government, based on the factual background available before it. Petitioner has not produced any convincing evidence in order to enable this Court to arrive at a different conclusion than the one arrived at by the 1st respondent, which thus also means, while exercising the power of judicial review, the writ court can only examine the decision making process adopted by the administrative authorities and not the decision itself. In that view of the matter, petitioner is not entitled to succeed.
The writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE St/-
14.02.2018