Kerala High Court
M.D. Noushad vs The State Of Kerala on 7 January, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943
WP(C) NO. 23938 OF 2021
PETITIONER:
M.D. NOUSHAD
AGED 45 YEARS
S/O M.D. MOHAMMED KUNHI, PROPRIETOR
M.D.CONSTRUCTIONS, MUNDAKULAM HOUSE, BEVINJA,
THEKKIL FERRY, KASARAGOD-671 541.
BY ADVS.
SREELAL N.WARRIER
RAJMOHAN C.V.
BHARAT MENON
GOVIND CHANDRABHANU
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
PUBLIC WORKS, 1ST FLOOR, MAIN BLOCK, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 SUPERINTENDENT ENGINEER,
PWD ROADS, NORTH CIRCLE, KOZHIKODE-673 001.
BY SRI.K.V.MANOJKUMAR, SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.23938/2021
:2 :
JUDGMENT
~~~~~~~~~ Dated this the 7th day of January, 2022 The petitioner, who is a Contractor and who has undertaken the work under Ext.P1 contract on behalf of the respondents, has filed this writ petition seeking to quash Ext.P5 order terminating Ext.P1 contract.
2. The petitioner states that he is a Government Contractor having excellent track record. On 20.05.2020, the petitioner executed Ext.P1 agreement with the respondents for executing the work of providing BM & BC relating to the badly damaged Perambra Thaninkandy-Chakkittapara Road between KM 0/000 to 8/200 in Kozhikode District. The work included construction of retaining walls, culvert and drains, painting with synthetic enamel paint, GSB (Granular Sub- Base) concrete work, Wet Mix Macadam work, BM and BC work, Bitumen levelling, fixing direction and place identification WP(C) No.23938/2021 :3 : sign boards, fixing reflective road studs and providing RCC pipe ducts.
3. The work had to be completed within 9 months from 29.05.2020. Most part of the contract work fell during monsoon season. Work was hit by Covid-19 related restrictions. The initial levels were taken on 08.06.2020. The initial levels were not approved till the stipulated date of completion of work, 28.02.2021. The petitioner sought extension of time to complete the work as per Ext.P2 dated 15.02.2021. Initial levels were approved only on 06.05.2021. His application dated 15.02.2021 was sanctioned only on 16.06.2021 as per Ext.P3 and that too only for 46 days, till 31.07.2021.
4. The petitioner states that heavy rains during this period made bitumen work impossible. The petitioner was expecting further extension of time. To the surprise of the petitioner, Ext.P4 notice of termination dated 25.09.2021 was issued on the petitioner followed by Ext.P5 termination order dated 04.10.2021. The petitioner states that the work period WP(C) No.23938/2021 :4 : was from 29.05.2020 to 28.02.2021. The initial levels were approved only on 06.05.2021, two months after the deadline for completion of work. The petitioner, however, completed all works not requiring approval of initial level, in the meanwhile.
5. Out of the 16 months and 5 days from the handing over of the site till the date of termination, 12 months and 18 days were lost due to the omission of the respondents. The petitioner was given only 45 days extension to complete the whole work, in spite of monsoon rains and pandemic restrictions. Other contractors were, however, given a larger extended period. In the circumstances, it is only just and reasonable that the petitioner be permitted to complete the work.
6. The 2nd respondent resisted the writ petition filing a statement. The 2nd respondent stated that work was awarded to the petitioner on 18.03.2020 and the petitioner came forward to execute the agreement only after two months, on 20.05.2020. The argument of the petitioner that the major part of the contract period was in the monsoon season, is not WP(C) No.23938/2021 :5 : correct. There was no full time lockdown during the period. The work can be started well before the approval of initial levels. Initial level was taken on 26.06.2020 and checked on 21.07.2020. As per Clause 8 of the PWD Manual, calculation of level and quantity calculation were to be submitted by the petitioner. The petitioner submitted the said levels only on 28.09.2020, after four months of site handover.
7. Even after the lapse of one year from the date of site handover, the petitioner could complete only 9% of total work. Even after a lapse of five months from the date of approval of initial level to the date of termination of contract, the petitioner completed only 10% of the total work. The performance of the petitioner was poor. The extension of time granted to the petitioner was with fine, as the delay was due to the petitioner's fault. On 16.06.2021, the petitioner was required to execute supplementary agreement. The petitioner did not come forward to execute supplementary agreement till the termination date for executing the supplementary agreement. He did not extend the performance guarantee WP(C) No.23938/2021 :6 : and additional performance guarantee, which is required for executing supplementary agreements.
8. The argument of the petitioner that he got only 45 days to complete the work is unacceptable since he could not proceed with the work from 29.05.2020 to 16.06.2021. The petitioner did not mobilise materials and equipments even after repeated requests. The petitioner did not start the work nor did he even start to take the steps even after a lapse of eight months from the date of agreement. Several notices were issued to the petitioner to start and proceed with the work. However, the petitioner failed. There were public complaints. Termination notice was necessitated for the absolute breach on the side of the petitioner. In the case of other works, those contractors had completed substantial portion of the work, whereas the petitioner could complete only 9 to 10% work. Termination of the work is therefore justified under contractual terms as well as in public interest, contended the 2nd respondent.
WP(C) No.23938/2021:7 :
9. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader representing the respondents.
10. It has to be noted that though selection notice was given to the petitioner on 18.03.2020, the petitioner came forward to sign the agreement only after two months. The site was handed over to the petitioner on 29.05.2020. Annexure-R2(c) proforma shows that the expected rate of progress was 30% at the end of third month, 60% at the end of sixth month and 100% at the end of ninth month. The petitioner would contend that the delay in taking initial levels was the main cause for the delay in execution of the work. However, from the pleadings, it is evident that initial levels were not necessary to complete works like retaining wall construction, drainage construction, etc. The petitioner could have completed 37% of the work even before taking initial level. The petitioner did complete only 10% works.
11. The petitioner sought extension of time which was granted imposing a fine. Fine was imposed as the delay in WP(C) No.23938/2021 :8 : execution of the work was attributable to the petitioner. The petitioner did not challenge imposition of fine. In Annexure-R2(h) letter dated 15.12.2020, the petitioner stated that he could not start the work due to development of Covid- 19 pandemic. The petitioner agreed that the work will be started within 15 days. It is pertinent to note that the petitioner did not make any complaint regarding non-approval of initial levels in the said letter.
12. It is evident from the pleadings that even after grant of extension of time, the petitioner did not come forward to execute the supplemental agreement. The petitioner was entrusted with other works earlier. Those works also had to be terminated, since the petitioner could not complete the work as agreed. In fact, in respect of one of those works, the petitioner did not even commence the work.
13. The pleadings in the writ petition would show that even after the expiry of contract period on 28.02.2021, the petitioner was given five months time to complete the work and still the execution of the work by the petitioner was very WP(C) No.23938/2021 :9 : slow and only 10% of the work was completed. The statement filed by the 2nd respondent would show that several notices were issued to the petitioner to start the work and proceed with it. The respondents were issuing slow progress notices to the petitioner. The petitioner, however, did not strive to complete the work with required promptitude.
In the circumstances, this Court is of the view that the respondents were justified in terminating the contract with the petitioner. No interference is warranted in this writ petition at the instance of the petitioner. The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE aks/06.01.2022 WP(C) No.23938/2021 : 10 : APPENDIX OF WP(C) 23938/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF CONTRACT NO SE(K) 02/2020 EXECUTED BY THE PETITIONER AND THE 2ND RESPONDENT AWARDING THE PETITIONER THE WORK OF PROVIDING MB & BC TO PERAMBRA THANINKANDY-
CHAKKITTAPARA ROAD DATED 20.5.2020 Exhibit P2 TRUE PHOTOCOPY OF THE LETTER SUBMITTED BY THE PETITIONER REQUESTING EXTENSION OF TIME FOR COMPLETION OF WORK DATED 15.2.2021 Exhibit P3 TRUE PHOTOCOPY OF THE ORDER NO DC9/PRICE/2018/10610 SANCTIONING A SHORT EXTENSION OF TIME FOR COMPLETION OF THE CONTRACT DATED 16.6.2021 Exhibit P4 TRUE PHOTOCOPY OF THE NOTICE OF TERMINATION DC09/PRICE/2018/10610 REQUIRING THE PETITIONER TO TAKE URGENT STEPS WITH 3 DAYS TO COMPLETE THE WORK DATED 25.9.2021 Exhibit P5 TRUE COPY OF THE ORDER NO DC-9 PRICE/2018/10610 TERMINATING THE EXT P2 CONTRACT DATED 4.10.2021 RESPONDENTS' EXTS R2(a) COPY OF ORDER DT 23.12.2020 FOR NOT EXECUTING THE AGREEMENT WITHIN THE STIPULATED TIME.
R2(b) COPY OF PROFORMA OF AWARD OF THE WORK. R2(c) COPY OF THE ORDER DT 18.3.2020 AWARDING THE WORK. R2(d) COPY OF GO DT 25.4.2020.
R2(e) COPY OF DETAILS OF INITIAL LEVELS. R2(f) COPY OF APPLICATION FOR EXTENSION OF TIME DT 15.2.2021.
R2(g) COPY OF LETTER DT 16.6.2021 ISSUED TO PETITIONER. R2(h) COPY OF LETTER DT 15.12.2020 OF ASSISTANT ENGINEER.
R2(i) COPY OF LETTER DT 15.2.2O21 OF ASSISTANT ENGINEER. WP(C) No.23938/2021 : 11 : R2(j) COPY OF LETTER DT 22.2.2021 ISSUED BY THE PETITIONER.
R2(k) COPY OF RELEVANT PAGE OF MORTH SPECIFICATION HAVING CLAUSE 105 AND 106.
R2(l) COPY OF NOTIFICATION DT 4.11.2020. R2(m) COPY OF NOTIFICATION DT 28.7.2021. R2(n) COPY OF RELEVANT PAGE OF MEASUREMENT BOOK. R2(o) COPY OF LETTER OF ASSISTANT ENGINEER DT 4.11.2020. R2(p) COPY OF LETTER ISSUED BY THE ASSISTANT ENGINEER DT 19.11.2020.
R2(q) COPY OF REMINDER LETTER ISSUED BY THE ASSISTANT ENGINEER DT 4.12.2020.
R2(r) COPY OF REPLY DT 15.12.2020 BY PETITIONER. R2(s) COPY OF MINUTES OF MEETING HELD ON 17.12.2020. R2(t) COPY OF LETTER DT 28.12.2020 ISSUED BY ASSISTANT ENGINEER.
R2(u) COPY OF NOTICE DT 19.11.2020 BY ASSISTANT EXECUTIVE ENGINEER.
R2(v) COPY OF SLOW PROGRESS NOTICE DT 7.6.2021 ISSUED BY THE ASSISTNAT EXECUTIVE ENGINEER.
R2(w) COPY OF MINUTES OF MEETING HELD ON 29.5.2021.
R2(x) COPY OF LETTER DT 24.6.2021. R2(y) COPY OF MINUTES OF MEETING HELD ON 12.7.2021. R2(z) COPY OF NEWS ITEM REGARDING PATHETIC CONDITION OF ROAD. R2(aa) COPY OF NOTICE DT 20.7.2021 ISSUED TO PETITIONER. R2(ab) COPY OF MINUTES OF MEETING HELD ON 14.9.2021. R2(ac) COPY OF NOTICE DT 25.9.2021.