Kerala High Court
Superintendent Engineer vs Kuriakose Abraham on 9 July, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939
RP.No. 205 of 2017 (H)
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AGAINST THE JUDGMENT IN WP(C).NO.17274/2015 DATED 09-07-2015.
......
REVIEW PETITIONERS/RESPONDENTS IN WPC:
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1. SUPERINTENDENT ENGINEER,
MINOR IRRIGATION CIRCLE,
THIRUVANANTHAPURAM-695 001.
2. EXECUTIVE ENGINEER,
MINOR IRRIGATION DIVISION,
MINI CIVIL STATION, KOTTAYAM-685 001.
3. ASSISTANT EXECUTIVE ENGINEER,
MINOR IRRIGATION SUB DIVISION,
PALA, KOTTAYAM DISTRICT-685 116.
4. ASSISTANT ENGINEER,
MINOR IRRIGATION SECTION, PALA,
KOTTAYAM DISTRICT-685 116.
BY SR. GOVT. PLEADER SRI.K.V. MANOJ KUMAR.
RESPONDENT/PETITIONER IN WPC:
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KURIAKOSE ABRAHAM,
VALANJANTHURUTHIL HOUSE,
PAZHAVANGADI P.O., RANNI,
PATHANAMTHITTADISTRICT.
BY SRI.UNNI. K.K. (EZHUMATTOOR).
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 13-10-2017, ALONG WITH COC. NO. 71 OF 2017, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
rs.
RP.No. 205 of 2017 (H)
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE I COPY OF THE REQUEST OF THE PETITIONER TO THE
QUALITY CONTROL WING.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
K. VINOD CHANDRAN, J.
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Review Petition No.205 of 2017
in
W.P.(C) No. 17274 of 2015 (H)
and
Contempt Case (Civil) No.71 of 2017 (S)
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Dated: 13th October, 2017
O R D E R
The review petition is filed on the ground that Ext.P3 penalty imposed on the petitioner, has to be recovered from the petitioner while returning the EMD and security deposit as directed in the judgment. The learned Senior Government Pleader submits that the petitioner was issued with Ext.P3 which was not challenged by the petitioner and only after six months the petitioner has filed the above writ petition seeking withdrawal from the work.
2. The judgment was passed on 09.07.2015. A statement filed by the 2nd respondent indicated that though the initial Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -2- period of work was from 09.09.2014 to 08.03.2015, the proposed work of maintenance of a check dam could be carried out only in summer season. It was also submitted that on inspection in the summer of 2014, along with the officials, it was found that the shutters were closed and the dam was partially filled with water. The local Panchayat representatives suggested release of the stored water by the end of March for reason of the anticipated drought. Hence, the work could not be carried out. The Departmental Officers inspected the site and issued directions to commence the maintenance work, since the work was only to cover the apron and body wall with cement and skin reinforcement. When the Contractor commenced the work there was protest from the locals for reason of Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -3- which it had to be stopped. Again after extending the period, when work was commenced on 15.01.2015, the earlier protests revived and on threats leveled against the Overseer and Contractor, they were forced to stop the work. It is the submission of the learned Special Government Pleader that the Contractor commenced the work only on 15.01.2015 and it was hence the penalty imposed as per Ext.P3.
3. However, the documents produced in the writ petition give a different picture. Reading the statement filed by the 2nd respondent, it has to be understood that though the work was to be completed between 09.09.2013 and 08.03.2014, it could not even be commenced since there was considerable water level in the check dam. The Executive Engineer also was of the Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -4- opinion that the work could be carried out only in the summer season. An attempt to carry out the work in 2014 met with protests and had to be abandoned. The period of contract hence had to be extended for which an application was filed which was allowed by Ext.P3. A supplemental agreement was executed and there was supply of materials and work was commenced; when again the farmers in the area protested, for reason of which the work had to be stopped. Hence, it cannot be said that the default was due to the petitioner.
4. The petitioner made an application for extension on 25.06.2014, as referred to in Ext.P3 order. This Court had called for the files which is produced and on perusal the said application is seen at page 24. The application, as seen from the files, indicates that Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -5- though the work was commenced in the summer of 2014, there was incessant rains from June till December, by reason of which, again, the water level in the dam rose impeding the maintenance work. Hence there was a request to permit the commencement of work from January so as to complete it by 31st of March. Without the extension being granted, the petitioner could not have commenced and completed the work. The delay in carrying out the maintenance work also was due to the existence of natural flow of water and the objection raised by the farmers in draining out the water stored in the check dam. The petitioner sought extension without penalty.
5. The delay caused in commencing the work, even going by the statement filed by the Executive Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -6- Engineer, was for reason of the water remaining in the dam and the apprehension of the locals that if the water is drained out and maintenance work were carried out, it would only accentuate the drought condition during the summer. The Assistant Executive Engineer by letter dated 29.12.2014 {page 25} and the Executive Engineer by letter dated 01.01.2015 {page 26 - Ext.P2} recommended the extension without any penalty. This was obviously due to the fact that they realised that the work could not be commenced for reasons beyond the control of the Contractor.
6. The extension was granted by Ext. P3 imposing a penalty and a supplemental agreement was executed on 14.01.2015. The work commenced on 15.01.2015 and again on 16.01.2015 a group of persons Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -7- destroyed the concreting work already carried out and detained the Overseer, supervising the work, who could be released only with the help of the Police. The same is evident from the complaint of the petitioner and that of the Assistant Engineer at pages 41 and 42 of the files.
7. What comes out is that though the period of contract, as per Ext.P1 agreement, was 09.09.2013 to 08.03.2014, the work could not be commenced for reason of the water level in the dam not receding; which was necessary for agricultural operations. When work was commenced in March, 2014, there was opposition from the local people for reason of the water level in the dam still remaining. Then, the Contractor submitted an application for extension in June, 2014, Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -8- which was forwarded to the Executive Engineer in December, 2014. In the intervening period there could be no work carried out due to the intermittent rains. Extension was allowed as per Ext.P3 mulcting a penalty of Rs.68,025/-. This Court does not find any reason to sustain the penalty, since the delay in carrying out the work was not on default of the Contractor. There is a specific prayer made in the writ petition for a declaration that the petitioner is not liable to pay any fine or damage, since there was no delay, lapses or negligence from the part of the petitioner.
8. Thereafter, it is an admitted fact that when, again, the work of maintenance was commenced, there was further opposition from the part of the locals on a complaint of the cement used being not of quality. The Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -9- Assistant Engineer had also, by Ext.P6, reported the complaint to the Sub Inspector of Police seeking police protection. However, there is no allegation by the Department that the cement used by the petitioner was of low quality. In fact, if such an allegation was there, there would have been no complaint made by the Assistant Engineer to the Sub Inspector of Police, as seen from Ext.P6. The allegation was not even supported by the Officers of the department. They stood by the Contractor and supported his stand that the work could not be carried out for reason of local opposition.
9. The department had floundered first in having notified a work of maintenance of a check dam to be commenced and completed during the rainy season. Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -10- Then the Officials had not carried out any local enquiry as to the drought situation and the apprehensions of the farmer community was not properly gauged or addressed. This is a classic case of official indifference in tendering a work mechanically; without assessing the local conditions.
10. In the above circumstances, this Court does not find any reason to review the judgment passed in the above writ petition. There is also no reason why there should be a set off of the amounts imposed as penalty at Ext.P3. The Review Petition is rejected. The review petitioners are granted a further time of one month to settle the EMD and security deposit failing which the amounts due would attract interest @ 7%, which the Government would pay, but, be realised from Review Petition No.205 of 2017 in W.P.(C) No. 17274 of 2015 (H) and Contempt Case (Civil) No.71 of 2017 (S) -11- those who commit the default in carrying out the directions.
The contempt case is closed, leaving liberty to the petitioner. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jma/jjj 13/10/17