Kerala High Court
P.G. Subramanian vs The Chief Engineer on 20 August, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 21ST DAY OF JULY 2017/30TH ASHADHA, 1939
WP(C).No. 29755 of 2016 (T)
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PETITIONER :
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P.G. SUBRAMANIAN
GOVERNMENT CONTRACTOR
PUTHUSSERIKUNNEL HOUSE,
EAST MARADY P.O., MUVATTUPUZHA
BY ADVS.SRI.JOSEPH KODIANTHARA (SR.)
SRI.MURALI PURUSHOTHAMAN
SRI.DEEPU LAL MOHAN
RESPONDENTS :
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1. THE CHIEF ENGINEER
IRRIGATION DEPARTMENT, PROJECTS-II
THIRUVANANTHAPURAM - 695 033
2. THE SUPERINTENDING ENGINEER
IRRIGATION DEPARTMENT, PROJECT CIRCLE
KOLLICKAL, PIRAVOM 686 664
3. THE EXECUTIVE ENGINEER
IRRIGATION DEPARTMENT,
IIP DIVISION NO 1
ANGAMALY 683 572
4. THE ASSISTANT EXECUTIVE ENGINEER,
II P SUB DIVISION NO III,KEERAMPARA P.O
BHOOTHATHANKETTU 686 681
WP(C).No. 29755 of 2016 (T)
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5. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
WATER RESOURCES DEPARTMENT
GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM 695 001
R1 TO R5 BY GOVERNMENT PLEADER
SRI.M.R.DHANIAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 21-07-2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
bp
WP(C).No. 29755 of 2016 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: THE PHOTOCOPY OF LETTER NO D7-782/08 DATED
20-08-2010 ISSUED TO THE PETITIONER BY THE
2ND RESPONDENT
EXHIBIT P2: THE PHOTOCOPY OF AGREEMENT NO
04/SEPCP/2010-11 DATED 03-09-2010 ENTERED
INTO BY THE PETITIONER WITH THE 2ND
RESPONDENT
EXHIBIT P3: THE PHOTOCOPY OF LETTER NO D7.780/08 DATED
13-12-2012 ISSUED BY THE 2ND RESPONDENT TO
THE 1ST RESPONDENT ALONG WITH THE REVISED
ESTIMATE, COMPARATIVE STATEMENT AND DATA
ENCLOSED THEREWITH
EXHIBIT P4: THE PHOTOCOPY OF LETTER NO WP2-1764/08/D7
DATED 12-03-2013 ISSUED BY THE 1ST
RESPONDENT TO THE 2ND RESPONDENT
EXHIBIT P5: THE PHOTOCOPY OF LETTER NO E1-160/2005
DATED 05-08-2013 ISSUED BY THE 3RD
RESPONDENT TO THE 2ND RESPONDENT
EXHIBIT P6: THE PHOTOCOPY OF SUPPLEMENTARY AGREEMENT
NO IV DATED 23-09-2013 TO EXT. P2
PRINCIPAL AGREEMENT ENTERED INTO BY THE
PETITIONER WITH THE 2ND RESPONDENT
EXHIBIT P7: THE PHOTOCOPY OF ORDER NO D7-780/08 DATED
24-09-2013 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P8: THE PHOTOCOPY OF CLOSURE AGREEMENT DATED
24-09-2013 TO EXT P2 PRINCIPAL AGREEMENT
ENTERED INTO BY THE PETITIONER WITH THE
2ND RESPONDENT
EXHIBIT P9: THE PHOTOCOPY OF LETTER NO D7-780/08 DATED
24-09-2013 ISSUED BY THE 2ND RESPONDENT
WP(C).No. 29755 of 2016 (T)
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EXHIBIT P10: THE PHOTOCOPY OF LETTER NO D7-780/08
DATED 24-09-2013 ISSUED BY THE 2ND
RESPONDENT TO THE 3RD RESPONDENT ALONG
WITH DETAILED COMPLETION REPORT
EXHIBIT P11: THE PHOTOCOPY OF CERTIFICATE OF
EXPERIENCE NO D7- 780/08 DATED 28-09-2013
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P12: THE PHOTOCOPY OF LETTER NO A7-419/06 DATED
25-03-2014 ISSUED TO THE PETITIONER'S SON
FROM THE OFFICE OF THE 3RD RESPONDENT
EXHIBIT P13: THE PHOTOCOPY OF THE JUDGMENT DATED
26-09-2014 OF THIS HON'BLE COURT IN W.P(C)
NO 18757/2014
EXHIBIT P14: THE PHOTOCOPY OF I.A NO 15822/2014 FILED
BEFORE THIS HON'BLE COURT IN W.P(C) NO
18757/2014
EXHIBIT P15: THE PHOTOCOPY OF THE COUNTER AFFIDAVIT
DATED 09-12-2014 FILED BEFORE THIS HON'BLE
COURT IN I.A NO 15822/2014 IN W.P9C) NO
18757/2014
EXHIBIT P16: THE PHOTOCOPY OF LETTER NO
22859/MP2/2014/WRD DATED 14-01-2015
FORWARDED BY THE 5TH RESPONDENT TO THE 1ST
RESPONDENT
EXHIBIT P17: THE PHOTOCOPY OF ORDER DATED 22-01-2015
OF THIS HON'BLE COURT IN I.A NO 15822/2014
IN W.P(C) NO 18757/2014
EXHIBIT P18: THE PHOTOCOPY OF ORDER NO WP2/1764/08/D7
DATED 16-02-2015 ISSUED BY THE 1ST
RESPONDENT
EXHIBIT P19: THE PHOTOCOPY OF LETTER NO E1-160/2005
DATED 02-03-2015 ISSUED BY THE 3RD
RESPONDENT TO THE 4TH RESPONDENT
EXHIBIT P20: THE PHOTOCOPY OF LETTER NO E1-1301/2014
DATED 03-03-2015 ISSUED BY THE 3RD
RESPONDENT(WITHOUT ENCLOSURES) TO THE
PETITIONER
WP(C).No. 29755 of 2016 (T)
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EXHIBIT P21: THE PHOTOCOPY OF ORDER NO WP2/1764/08/D7
DATED 30-03-2015 ISSUED BY THE 1ST
RESPONDENT
EXHIBIT P22: THE PHOTOCOPY OF LETTER NO S2-1/2003
DATED 07-04-2015 ISSUED BY THE 4TH
RESPONDENT TO THE PETITIONER
EXHIBIT P23: THE PHOTOCOPY OF LETTER NO E1-1301/2011
DATED 10-04-2015 ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER
EXHIBIT P24: THE PHOTOCOPY OF THE LETTER DATED
13-05-2015 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT
EXHIBIT P25: THE PHOTOCOPY OF THE LETTER NO E1-
1301/2014 DATED 04-06-2015 ISSUED BY THE
3RD RESPONDENT TO THE 1ST RESPONDENT
EXHIBIT P26: THE PHOTOCOPY OF ORDER DATED 07-07-2015 OF
THIS HON'BLE COURT IN I.A NO 9106/2015 IN
W.P(C) NO 18757/2014
EXHIBIT P27: THE PHOTOCOPY OF LETTER DATED 09-07-2015
SUBMITTED BY THE PETITIONER BEFORE
RESPONDENTS 1 TO 3 AND 5
EXHIBIT P28: THE PHOTOCOPY OF THE LETTER NO E1-
1301/2014 DATED 15-07-2015 ISSUED BY THE
3RD RESPONDENT TO THE PETITIONER
EXHIBIT P29: THE PHOTOCOPY OF THE LETTER NO F4-2817/14
DATED 24-07-2015 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
EXHIBIT P30: THE PHOTOCOPY OF GOVERNMENT TREASURY
CHEQUE BEARING NO 3184165 DATED 04-09-2015
ISSUED BY THE 3RD RESPONDENT IN FAVOUR OF
THE POWER OF ATTORNEY HOLDER OF THE
PETITIONER FOR AN AMOUNT OF RS.
20,00,173/- (RUPEES TWENTY LAKHS ONE
HUNDRED AND SEVENTY THREE ONLY)
WP(C).No. 29755 of 2016 (T)
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EXHIBIT P31: THE PHOTOCOPY OF LETTER NO D7-780/08
DATED 12-10-2015 ISSUED BY THE 2ND
RESPONDENT TO THE 1ST RESPONDENT ALONG
WITH ENCLOSURES ATTACHED THEREWITH
EXHIBIT P32: THE PHOTOCOPY OF I.A NO 1040/2016 FILED
BEFORE THIS HON'BLE COURT IN W.P(C) NO
18757/2014
EXHIBIT P33: THE PHOTOCOPY OF LETTER NO
WP2/5040/2014/D7 DATED 27-01-2016 ISSUED
BY THE 1ST RESPONDENT TO THE 2ND
RESPONDENT ALONG WITH THE MINUTES OF THE
TECHNICAL SANCTION COMMITTEE HELD ON
22-01-2016 ENCLOSED THEREWITH
EXHIBIT P34: THE PHOTOCOPY OF THE COUNTER AFFIDAVIT
DATED 01-02-2016 FILED BY THE PETITIONER
BEFORE THIS HON'BLE COURT IN I.A NO
1040/2016 IN W.P9C) NO 18757/2014
EXHIBIT P35: THE PHOTOCOPY OF CIVIL MISCELLANEOUS
APPLICATION DATED 08-02-2016 FILED BY
RESPONDENTS 1 TO 3 AND 5 BEFORE THIS
HON'BLE COURT IN I.A NO 1040/2016 IN W.P
(C) NO 18757/2014
EXHIBIT P36: THE PHOTOCOPY OF LETTER NO E1-1301/14
DATED 10-02-2016 ISSUED TO THE PETITIONER
BY THE 3RD RESPONDENT
EXHIBIT P37: THE PHOTOCOPY OF THE JUDGMENT DATED
22-02-2016 OF THIS HON COURT IN CONTEMPT
CASE(C) NO 69/2016
EXHIBIT P38: THE PHOTOCOPY OF LETTER NO E1-160/2005
DATED 21-03-2016 ISSUED TO THE PETITIOENR
BY THE 3RD RESPONDENT
EXHIBIT P39: THE PHOTOCOPY OF THE NOTICE INVITING
TENDER FOR WORKS (FORM NO 83) ISSUED BY
THE KERALA IRRIGATION DEPARTMENT
EXHIBIT P40: THE PHOTOCOPY OF LETTER NO E1-160/2005
DATED 14-10-2010 ISSUED BY THE 3RD
RESPONDENT TO THE 2ND RESPONDENT
WP(C).No. 29755 of 2016 (T)
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EXHIBIT P41: THE PHOTOCOPY OF NO WP2/1764/2008/D7
DATED 08-12-2010 ISSUED BY THE 1ST
RESPONDENT TO THE 2ND RESPONDENT
EXHIBIT P42: THE PHOTOCOPY OF LETTER NO F4-2817/14
DATED 05-04-2016 ISSUED TO THE PETITIONER
BY THE 2ND RESPONDENT
EXHIBIT P43: THE PHOTOCOPY OF LETTER NO E1-1301/14
DATED 28-04-2016 ISSUED TO THE
PETITIONER BY THE 3RD RESPONDENT
EXHIBIT P44: THE PHOTOCOPY OF LETTER NO F4-2817/2014
DATED 09-06-2016 ISSUED BY THE 1ST
RESPONDENT TO THE CHIEF ENGINEER, LOCAL
SELF GOVERNMENT DEPARTMENT
EXHIBIT P45: COPY OF POSSESSION NOTICE DT 16/12/2016
ISSUED BY THE AUTHORIZED OFFICER OF THE
SOUTH INDIAN BANK LIMITED.
RESPONDENT(S)' EXHIBITS :
-----------------------
EXT.R2(a): COPY OF THE EXTRACT OF MEMORANDUM OF
PAYMENT COUNTERSIGNED BY THE PETITIONER.
//TRUE COPY//
P.S. TO JUDGE
bp
CR
Devan Ramachandran, J.
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W.P.(C)No.29755 of 2016 T
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Dated this the 21st day of July, 2017
JUDGMENT
The petitioner, a contractor of government works is beset by a rather piquant and paradoxical scenario of, on one hand holding agreements and attendant documents, issued by the competent authorities, releasing him from obligations under a contract for certain works he had entered with the Water Resources Department of the Government of Kerala, but on the other hand being still beleaguered by demands made against him for payment of large amounts, allegedly due from him under the very same contractual obligation, from which he had been released. The petitioner, in this writ petition, challenges such demands and requisitions as being illegal, unlawful and unconstitutional. WPC 29755/16 2
2. The petitioner claims that he was the lowest and successful tenderer for a work proposed by the Water Resources Department of the Government of Kerala called 'IIP - Constructing Main Canal from ch. 600M to 1000M including cut and cover from CH. 600M to 691M (Balance Work)'. He says that he had quoted at the rate of 7.7% below the Probable Amount of Contract (PAC) and that this was found to be the lowest by the competent tendering authorities. The letter finding him to the successful tenderer has been placed on record as Exhibit P1. He says that pursuant to Exhibit P1, he entered into Exhibit P2 agreement with the Government of Kerala, which agreement was signed on behalf of His Excellency the Governor of Kerala by the Superintending Engineer Irrigation Department, Piravom (SE), who is the second respondent herein. He says that as per the contract, he was to complete the work on or before 08.09.2012 and that this term was extended by the authorities for valid WPC 29755/16 3 reasons initially till 09.02.2013 and thereafter till 30.04.2013.
3. According to the petitioner, the work involving the construction of the main canal was a very laborious and arduous one and that taking into account the peculiar terrain that was encountered, Exhibit P3 letter was issued by the SE making a revised design. This change, the petitioner submits, was necessitated because of the reasons stated in the order itself, which are as under:
"The rock strata is very peculiar in nature and there exists possibility of uncontrollable blasting at sides especially in the prism during the formation of the canal. There is tremendous problem of seepage of water at site which affect the smooth completion of the work in the targeted time and even commissioning of the project. The problems of doing lining work was highlighted to the Chief Engineer, Project-II during site inspection on 19.07.2011 and it was directed to avoid the lining work in this portion by making sufficient size section in the rock to carry the designed discharge as per inspection note cited (5). The revised proposal of hydraulic particulars has been submitted vide this office letter of even No. dated 26.09.2012."
The said order also had a sketch attached to it, which is seen signed by the Executive Engineer (EE), Assistant WPC 29755/16 4 Executive Engineer (AEE) and the Assistant Engineer (AE) of the Boothathankettu Division, recording that the discharge of water available by modification of the design shown in Exhibit P3 is greater than that is required in the section and even greater than what would have been available had the original design been followed.
4. The petitioner says that he had completed the contracted work on 08.02.2013 to the full satisfaction of the concerned authorities including the SE and that a trial run of discharge of water through the newly constructed canal was done on 21.03.2013, as is discernible from Exhibit P5 letter issued by the EE to the SE dated 05.08.2013. The petitioner points to this letter particularly to show that no complaints had been raised and that the discharge available through the canal was, in fact, more than what was conceded by the initial plan. He adds that since he had been executing the work well, certain supplemental agreements had been entered into WPC 29755/16 5 with him by the competent authorities and that these were also honoured by him to the satisfaction of the authorities.
5. While so, according to the petitioner, by Exhibit P7, which is an order issued by the SE dated 24.09.2013, it was recommended that, on account of the changes in the design from the original, the petitioner cannot be expected to complete the work as per the design originally agreed and that he had completed the work under the revised design to the full satisfaction of the supervising authorities. He, therefore, recommended in the said letter that the petitioner's contract, namely Exhibit P1, be foreclosed without any liability against him so that he could be free from the obligation of not having completed certain works under the original design, taking note of the fact that he had engaged and completed extra works, as was expected of him in Exhibit P3. WPC 29755/16 6
6. Based on this, the petitioner asserts, Exhibit P8 closure agreement was entered into by him with the SE on 24.09.2013, under which it was specifically recorded that each of the parties under the contract releases the other from all the obligations arising out of the non- performance of certain components of work under the original agreement, namely Exhibit P2 and that the contractor (the petitioner herein) is deemed to have relinquished all rights and further claims over the work not done by him under the original Exhibit P2 agreement. The said closure agreement also stipulated that the security deposit of the petitioner will be released to him after making payment for the works already completed by him but after effecting necessary recoveries, if any and on obtaining certificates from the EE regarding non- liability contractor and other necessary tax and clearance certificates. It is pertinent that pursuant to Exhibit P8, a completion certificate was issued by the SE on WPC 29755/16 7 24.09.2013 as also a report of satisfactory completion of work by the petitioner dated 24.09.2013. The said certificate and report have been appended to this writ petition as Exhibits P9 and P10, which would conclusively show that the petitioner had completed the work assigned to him, including the changes authorised by Exhibit P3 in full and to the satisfaction of all the authorities without any complaint or any cause for concern.
7. The petitioner says that in such circumstances he legitimately expected his bills to be honoured and paid to him at the earliest. However, as this was not done, he was constrained to approach this Court by filing W.P.(C) No.18757/2014, which culminated in Exhibit P13 judgment, under which the respondents therein, who were the competent Engineers of the Irrigation Department, were directed to disburse the admitted bill in accordance with seniority in the date of registering the final bill. The petitioner says that even when Exhibit P13 judgment was WPC 29755/16 8 delivered the respondents did not have a case that the petitioner had not completed the work satisfactorily or that he was not entitled to the amounts covered by the bills submitted by him. The learned counsel for the petitioner also points out that the deviation in the design was also one aspect that was considered by this Court in the said judgment and that a decision was directed to be taken taking into account such devisions as authorised by Exhibit P3.
8. It appears that the Government did not take any action pursuant to Exhibit P13 for some time and that they had filed Exhibit P14 application for extension of time, wherein again there was no dispute regarding the petitioner's claim but it only prayed that the time limit granted in Exhibit P13 judgment be extended by three months from 18.11.2014. The said application of the Government was allowed by this Court as per Exhibit P17 order.
WPC 29755/16 9
9. The petitioner submits that resultant to these orders, Exhibit P16 communication was sent by the Secretary of Government to the CE of the Water Resources Department directing him to take urgent steps to approve the revised estimate and obtain ratification by the Technical Sanction Committee in a time bound manner so as to enable compliance of the directions in Exhibit P13 judgment and thus facilitating payment to the petitioner as per his final bill. In the said letter, however, there is also a mention that departmental action against the officers responsible for 'procedural lapses and lapses on using delegated financial powers' (sic) be initiated. This indicates that the Secretary to Government was of the view that there were certain errors or lapses in the procedure followed while making the revision of design but for which the petitioner was not found responsible in any manner at all. This led to Exhibit P18 letter to be issued by the CE wherein the revised plan was virtually WPC 29755/16 10 approved and the said order also stated that the Technical Sanction Committee which met on 05.02.2014 had decided to to admit the excavated quantity of blasting as per the original agreement and that canal prism lining has to be done, authorising the CE to work out the maximum cross section that can be arrived at from the over blasted area to receive the said lining. The decision of the Technical Sanction Committee was that the 'surface of the section should be formed to receive lining by the agency or the amount for the same is to be recovered from the final bill' (sic).
10. It is pertinent that it is for the first time, through Exhibit P18 order, that the petitioner was made responsible for the lining to be constructed on the canal, even though as per the authorised deviation in the plan, the work of canal lining was completely exempted and the petitioner was exonerated of all liability, as evidenced by Exhibits P5, P8, P9 and P10, to complete the said work. WPC 29755/16 11
11. The petitioner alleges that this abrupt change in the attitude of the authorities was on account of the fact that in Exhibit P16 the Government had directed initiation of departmental action against the officers. The petitioner attributes the stand in Exhibit P18, to make him responsible for these works, to be intended to help and to illegally exculpate the responsible officers, who were suspected to have committed dereliction and negligence in duty. The petitioner says that in continuation of these proceedings Exhibit P21 order dated 30.03.2015 was issued by the CE recording that the revised estimate for the work is approved, based on the directions of the Technical Sanction Committee, for Rs.2,26,07,746/- and that the liability for this should be cast upon the petitioner and recovery should be made against him as per the calculation given by the EE. This was followed by Exhibits P22 and P23, whereby the petitioner was directed to complete the work, which was WPC 29755/16 12 originally exempted as per Exhibits P5 letter and P8 closure agreement.
12. The petitioner obviously, therefore, did not accede to this demand, which finally led to Exhibit P31 proceedings issued by the SE to the CE wherein, interestingly, the necessity for change of design is again unequivocally recorded and recommending that the petitioner should not be made liable for the consequences arising out of such changes. The petitioner asserts that in Exhibit P31 it is stated that the canal has been constructed as per the original requirements and that the discharge, even with the revised design has a capacity of 21.27 m3/sec., as against the original design discharge of 20 m3/sec. Exhibit P31, the petitioner submits, clearly vindicates his stand showing that the canal has been performing well and that the work done by the petitioner has confirmed itself to every technical requirement as per Exhibit P2 as well as by the changed design WPC 29755/16 13 recommended through Exhibit P3 proceedings of the SE.
13. The petitioner submits that even after Exhibit P31 had been issued by the SE, the authorities did not stop and they continued to proceed against him by issuing Exhibit P36, which a calculation statement under which an amount of Rs.2,75,00,000/- was found due from him by showing large amounts under the head 'recoveries', which represent the amount required for completion of the work as per the original design but which were exempted from the petitioner's scope as per Exhibit P3.
14. The petitioner says, to make matters worse the EE, thereafter, issued Exhibit P38 letter to him asking to show cause why such amounts ought not to be recovered from him. The petitioner submits that in Exhibit P38 ineffably, a new head of liability has been fastened on him. This liability relates to eight lifts that were originally part of the work under Exhibit P2 contract, which the WPC 29755/16 14 Engineer says was unnecessary and ought to have been avoided and that this is to be reduced from the petitioner's bill. The justification for this, as offered by the CE in Exhibit P38, is that the petitioner did not require these lifts on account of the fact that he had constructed a road on the berm of one side of the canal and, therefore, that the lifts were surplusage. On such reasoning the EE demanded an amount of Rs.29,62,092.69 along with the amounts that had earlier been demanded from the petitioner under Exhibit P36 calculation. On the strength of these proceedings, Exhibits P42 and P43 demands have been raised against the petitioner and Exhibit P44 letter has been issued by the EE to the Secretary of the Local Self Government Institutions directing that all amounts due to the petitioner from any other department under it be withheld so as to make good the liability that has been cast against him.
WPC 29755/16 15
15. The petitioner has filed this writ petition challenging Exhibits P18, P21, P22, P23, P36, P42, P43 and P44 orders, directions and demands as being illegal, unlawful and unconstitutional.
16. I have heard Sri.Deepu Lal Mohan, learned counsel for the petitioner and the learned Government Pleader for the respondents.
17. A narration of the facts as above show, with some amount of definitude, that the petitioner had completed the works to the satisfaction of the SE, as is evident from Exhibit P5. The trial run of the canal was completed on 21.03.2013 indubitably that the construction had been completed well and that the works entrusted to the petitioner had been executed by him satisfactorily. It is true that the original design had certain components which the petitioner has not completed. This is because it was found by the SE, as is evident from Exhibit P5, that such works cannot be WPC 29755/16 16 completed on account of certain very peculiar factors, as is extracted above. It is on such basis and not because the petitioner had been derelict or negligent in his contract that the SE recommended that the petitioner be exempted from the burden of completing such components of the work and to close his contract exonerating him from the liability against such works. It is ineluctably because of this reason that Exhibit P8 closure agreement was entered into and Exhibit P9 and P10 completion certificate and report respectively had been issued. The fact that the petitioner had completed the works satisfactorily is also evident from Exhibit P11 experience certificate issued by the competent authority.
18. Normally, in such circumstances there ought not to have been any sort of controversy between the parties since the closure report and the agreement show perspicuously that the petitioner was under no further obligation. However, this was not to be so. WPC 29755/16 17
19. On account of the reason that some departmental lapses were found and because some officers were found liable to be proceeded against in Exhibit P16 order of the Government, the petitioner alleges, the authorities were provoked to re-open the whole issue and to enter into a stratagem so as to make him liable for the alleged inadequacies in the work. The petitioner reiterates that the work was completed well and that there was absolutely no defect in the canal, which he says is evident from the fact that the trial run was successful as also from the subsequent reports which record that the discharge was well within the acceptable parameters and even more than what was required under the original design. The petitioner says that the respondents have consistently been trying to harass him and to ensure that large amounts are recovered from him so as to possibly make him a scapegoat and to offer a safe exit for the concerned officers who were responsible for WPC 29755/16 18 the entire change in design as also for not obtaining the departmental sanction or permission from the other competent authorities while making such changes. The petitioner asserts, justifiably so, that he was not responsible for these changes and that he had no role to play at all in this. He says that once those changes were made and intimated to him, as per Exhibit P3, he executed the work as per the directions, control and supervision of the authorities and completed it to the full satisfaction of the department.
20. In refutation of the petitioner's allegations, the State has filed a counter affidavit as also an additional court affidavit. Even though the first counter affidavit is dated 13.12.2016, which runs to several pages, nothing can be found from therein as to how the petitioner can be made responsible for the change or revision of the design, as recommended by the SE in Exhibit P3. In fact, the counter affidavit does not even advert to Exhibit P31, WPC 29755/16 19 which is a letter issued by the SE explaining the reasons for the deviation from the original design and as to why the original design had become unworkable and incapable of execution. The counter affidavit does not mention how the SE could be found fault with in issuing Exhibit P3 and as to how the petitioner could be found in error for following lawful commands and supervisory directions of the authorities while executing the work. It is interesting that the counter affidavit does not even whisper that the petitioner had not completed the work as per Exhibits P2 and P3 satisfactorily or that the canal suffers from any defect on account of the work entrusted to him. On the contrary, the counter affidavit proceeds on the basis that the revision of design by the authorities was illegal because there was no sanction obtained by the said authorities before such deviation could be made and that no technical approval for the same had been obtained.
WPC 29755/16 20
21. I fail to understand as how these could be attributed against the petitioner and how the petitioner could be found fault with for completing the work as per the revised design. The counter affidavit is also silent on this issue.
22. The additional counter affidavit has been filed on record, which is dated 19.06.2017, apparently because in the first counter affidavit there was no advertence regarding Exhibit P8 closure agreement. In the additional counter affidavit the stand taken by the fifth respondent is baffling and completely incomprehensible because it is stated therein that the SE had entered into Exhibit P8 closure agreement without authority. This is incredible because Exhibit P8 is dated 24.09.2013 and the State or other agencies admittedly have not, until this date, even moved a finger against the said action of the SE nor is there material on record to show that any charge or allegation has been made against the said officer for WPC 29755/16 21 having entered into Exhibit P8 agreement. In the absence of any such, I can only view these statements in the counter affidavit to be a matter of after thought and pure brinkmanship to avoid consequences flowing from the completion certificate and report, namely Exhibits P9 and P10. I cannot countenance the stand of the fifth respondent and I, therefore, have no other option but to repel all these contentions as being completely superfluous and without any merit or bona fides.
23. The fact that the petitioner has already been released from all his obligations under Exhibit P2 contract by Exhibit P8 closure agreement and that a completion certificate and report have been issued to him as per Exhibits P9 and P10 respectively would go a long way in support of his claim that no further allegations could have been raised against him. The imputation that, on account of the deviation in the design, some components of the original work had not been completed WPC 29755/16 22 by the petitioner and that the lifts that were part of the original components of the contract were surplusage etc. are completely beyond the competence and jurisdiction of the authorities concerned and I cannot, for a moment, condone their action in making these allegations against the petitioner at a time after this Court had directed them, as per Exhibit P13 judgment, to pay the final bill if it was found to be otherwise in order. This cannot be construed by the authorities to mean that they have the right to reduce or deduct from the petitioner amounts relating to these works which were exempted to be done by the petitioner as per Exhibits P3 and P5, particularly since the components of the original agreement had never been found to be surplusage by any authority until Exhibit P38 was issued by the EE.
24. In any event, the fact that a closure agreement had been entered into by the SE validly with the petitioner as early as on 24.09.2013 would indubitably prove the case WPC 29755/16 23 of the petitioner that he had been exonerated of all liabilities from the original contract and that nothing in the original contract or his obligations set out in the said contract can be now used against him on the ostensible ground that Exhibit P8 closure agreement was entered into by the SE without proper authority.
25. In such view of the matter and in an over view of the observations I have made above, I am compelled, without having any other option, to allow this writ petition and to quash Exhibits P21, P22, P23, P36, P42, 43 and P44 proceedings, orders and demands and to order that all consequences flowing out of Exhibit P8 closure agreement entered into by the SE with the petitioner should be taken to its logical conclusion, including payment of the final bill to him with reference to his seniority from the date on which such bill has been presented by him.
WPC 29755/16 24
26. Even though the petitioner has prayed for interest on the payments on account of delay, I am sure that this Court acting under Article 226 of the Constitution of India would not be justified in ordering such and I think it will be best left to the petitioner to approach a Court of competent civil jurisdiction in furtherance of this claim.
Reserving liberty to the petitioner as above, I order this writ petition and direct the competent respondents to pay to the petitioner the amounts covered by the final bill submitted by him on 01.10.2013 without any further delay but not later than three months from the date of receipt of a copy of this judgment.
Devan Ramachandran, Judge tkv