Kerala High Court
T.Asokan vs State Of Kerala on 29 December, 2011
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2014/30TH MAGHA, 1935
WP(C).No. 3346 of 2014 (P)
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PETITIONER :
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T.ASOKAN,
P.W.D. CONTRACTOR, S/O.KUNHIKANDAN,
PATTALIL HOUSE, CHELAVOOR PO, CALICUT.
BY ADVS.SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENTS :
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1. STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695 001.
2. THE CHIEF ENGINEER,
PUBLIC WORKS DEPARTMENT (ROADS &
BRIDGES), THIRUVANANTHAPURAM-695 001.
3. THE SUPERINTENDENT ENGINEER,
PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES),
NORTH CIRCLE, KOZHIKODE.
BY SR.GOVERNMENT PLEADER SRI. K.C.VINCENT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 3346 of 2014 (P)
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APPENDIX
PETITIONER'S EXHIBITS :
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EXT.P1 - COPY OF THE LETTER ISSUED BY THE SUPERINTENDING ENGINEER DATED
29-12-2011.
EXT.P2 - COPY OF THE REPRESENTATION DATED 7-1-2012 SUBMITTED BEFORE THE
2ND RESPONDENT.
EXT.P3 - COPY OF THE REPRESENTATION DATED 14-3-2012 BEFORE THE 3RD
RESPONDENT.
EXT.P4 - COPY OF THE REPRESENTATION DATED 1-6-2012 BEFORE THE 2ND
RESPONDENT.
EXT.P5 - COPY OF THE RELEVANT PORTION OF THE MADRAS DETAILED STANDARD
SPECIFICATION.
EXT.P6 - COPY OF THE JUDGMENT DATED 1-12-2012 IN WPC.23275/2012.
EXT.P7 - COPY OF THE ORDER NO.FCB-3/6202/12 DATED 27-12-2012.
EXT.P8 - COPY OF THE REQUEST DATED 6-3-2013.
EXT.P9 - COPY OF THE LETTER DATED 14-3-2013 SENT TO THE 2ND RESPONDENT
BY THE 3RD RESPONDENT.
EXT.P10 - COPY OF THE LETTER DATED 21-3-2013 WITH REVISED ESTIMATE.
EXT.P11 - COPY OF THE REPRESENTATION DATED 29-6-2013 SUBMITTED BEFORE
THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS :
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NIL
// True Copy //
P.A. To Judge
DSV/22/02
P.N.RAVINDRAN, J.
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W.P.(C) No. 3346 of 2014
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Dated this the 19th day of February, 2014
J U D G M E N T
The petitioner is a registered contractor. The work of construction of Mambram bridge across Anjarakandy river in Kannur District was awarded to him. A formal agreement was entered into between the petitioner on the one hand and the third respondent on the other on 29.12.2011. As per the said agreement the work has to be completed within a period of 18 months. The site was however not handed over to the petitioner for the reason that land acquisition had not been completed and also for the other reasons. The petitioner therefore sent Ext.P2 letter dated 07.01.2012 to the third respondent requesting him to hand over the site immediately. This was followed by Ext.P3 letter dated 14.03.2012 wherein the petitioner stated that he is not prepared to execute the work unless the department agrees to enhance the rate by atleast 50% above the estimate rate instead of the agreed rate of 1.99% above the estimate rate. He also stated in that letter that he has the right to withdraw from the contract and obtain refund of the security deposit, if handing over of the site is delayed for more than two months. In that letter he also stated that W.P.(C) No. 3346 of 2014 2 he is withdrawing from the contract in case the department cannot enhance the rate and hand over the site before 31.03.2012. The petitioner thereafter sent Ext.P4 representation dated 01.06.2012, wherein after stating that he cannot wait indefinitely, he requested the third respondent to issue an order revoking the contract agreement and to refund the security deposit. He also requested the third respondent to release the bank guarantee and to pay the sum of Rs.1,14,900/- remitted by him with the Kerala State Electricity Board on behalf of the department and also to pay Rs.5,00,000/- towards the expenses incurred by him for providing preliminary arrangements at the site. The petitioner thereafter filed W.P.(C)No.23275 of 2012 in this Court, wherein he prayed for the following relief:
"i) To issue a Writ of mandamus or any other appropriate writ or order or direction directing the respondent to cancel the contract Ext.P1 and to release the security deposit and bank guarantee to the petitioner within the time framed to be fixed by this Hon'ble Court;"
2. W.P.(C) No.23275 of 2012 came up for consideration before a learned single Judge of this Court on 01.12.2012. After taking note of the rival contentions, this Court disposed of the writ petition without expressing a formal opinion on the merits of the rival contentions, by directing the Superintending Engineer to take an appropriate decision in the matter, after assessing the factual situation within a period of W.P.(C) No. 3346 of 2014 3 one month. The Superintending Engineer there upon issued Ext.P7 order dated 27.12.2012, whereby he decided to recommend to the Government through the Chief Engineer to accept the petitioner's request to give escalation having regard to the 2012 PWD Schedule of Rates. The petitioner thereafter sent Ext.P8 letter dated 06.03.2013 to the Superintending Engineer, wherein he requested the Superintending Engineer to make the land available so as to enable him to start the work. It appears that the Chief Engineer had pursuant to Ext.P7 order addressed Government in the matter and the Government had called upon him to submit a revised estimate. A revised estimate was accordingly prepared and forwarded to the Government along with Ext.P10 letter. The petitioner thereafter sent Ext.P11 letter dated 29.06.2013 requesting the Superintending Engineer to keep the agreement alive for a further period of 18 months from 30.06.2013. The instant writ petition was thereafter filed for an order directing the respondents to hand over the site as requested by the petitioner in Ext.P8 letter within a time limit to be fixed by this Court. The petitioner has also prayed for an order directing the first respondent to finalize the proceedings in terms of Ext.P7 order passed by the Superintending Engineer and Ext.P10 letter sent by the Chief Engineer to the Government, within a time limit to be fixed by this Court. He has also prayed for an order directing the first W.P.(C) No. 3346 of 2014 4 respondent to grant extension of time to complete the work.
3. A counter affidavit dated 05.02.2014 has been filed on behalf of the third respondent. In paragraph 3 thereof it is stated that on account of various hurdles the land acquisition has not so far been completed and due to nonavailability of land, the work could not commence. It is also stated that the period fixed for performance of the agreement expired on 28.06.2013 and no further extension has been given. The third respondent has also stated that at a meeting held on 19.12.2012 under the chairmanship of the Hon'ble Minister for Public Works, it was decided to take over the land under the fast track arrangement and to complete the work and that the Member of Parliament representing the constituency where the bridge is proposed to be put up had sent a letter dated 04.02.2013 requesting the Hon'ble Minister for Public Works to entrust the work with the Kerala State Construction Corporation. The counter affidavit proceeds to state that in view of the said development, a proposal has been submitted to the Chief Engineer for permission to relieve the petitioner from the contractual obligation without risk and cost, that the Chief Engineer has as per letter dated 30.01.2013 granted permission to relieve the petitioner from the contractual obligations without risk and cost and that an order of termination is being prepared.
4. I heard Sri. K. Mohanakannan, learned counsel appearing for W.P.(C) No. 3346 of 2014 5 the petitioner and Sri. K.C.Vincent, learned Senior Government Pleader appearing for the respondents. Sri.K. Mohanakannan, learned counsel appearing for the petitioner submitted, reiterating the averments in the writ petition that the third respondent Superintending Engineer has in Ext.P7 order recommended that the petitioner should be permitted to complete the work after giving him an escalation, that there upon a revised estimate was also prepared and therefore, the decision now taken by the respondents to terminate the contract, without risk and cost and to re-tender the work cannot be sustained. The learned counsel contended that the petitioner's request was to permit him to continue the work and therefore the stand taken by the third respondent in paragraph 7 of the counter affidavit cannot be countenanced. Per contra, Sri.K.C.Vincent, learned Senior Government Pleader appearing for the respondents contended that with reference to the demand made by the petitioner in Exts.P3 and P4 letters that the petitioner had withdrawn from the contract and had also requested the Superintending Engineer to revoke the contract and release the bank guarantee and make other refunds, therefore the petitioner cannot, relying on Ext.P7 order passed by the Superintending Engineer which is only recommendatory in nature, contend for the position that he should be permitted to execute the work at a later point of time at the 2012 PWD Schedule of rates. W.P.(C) No. 3346 of 2014 6
5. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone though the pleadings and the materials on record. It is not in dispute that the land required for the purpose of putting up the Mambram bridge has not so far been acquired. The period for the performance of the agreement expired on 28.06.2013. No further extension of time has also been granted. The petitioner had in Ext.P3 letter dated 14.03.2012 which was sent at a point of time when the period for performance had not expired, stated as follows:
"I invite your attention to my letter dated 07.01.2012 wherein I had requested you to hand over the site after removing the obstructions noticed at the site. The Agrt. For the above work was executed by me on 29.12.2011 and the dept. has agreed to hand over the site within ten days on acceptance of the agrt.
On expiry of the promised time I had requested you to hand over the site, as the cost of the construction materials and rate of labour are on the increase day by day beyond all expectations, and my agreed rate will be unworkable in case the work could not be completed before the specified time. But eventhough more than 2 months have elapsed since acceptance of the agrt; the dept could not hand over the site so far. Several obstructions exist at the site even now preventing the commencement of the work. The electric posts and lines are to be shifted and the telephone cables to be removed from the alignment of the site. The trees within the alignment of the site are also to be uprooted and removed by W.P.(C) No. 3346 of 2014 7 the dept; to proceed with the work. Considerable time will be required for clearing the above obstructions as shifting electric lines and removal of cables etc. are time consuming factor. Therefore commencement and completion of the work will be badly delayed and it will result in unbearable construction cost and consequent heavy loss. Therefore, I am not prepared to execute the work under the present mileau, unless the dept. is agreed to enhance my agreed rate atleast to 50% above estimate rate instead of my present agreed rate of 1.99% above estimate rate; to cop-up with the heavy construction cost.
According to Clause 58 of Preliminary specification of MDSS, which forms part of the above contract agrt, I have the right to withdraw from the contract and obtain refund of my security deposit if handing over site is delayed from more than two months. The agrt. was executed on 29.12.2011 and the specified time of two months already expired by 29.02.2012. Therefore, I hereby withdraw from the contract for the above work in case the dept. cannot enhance my agreed rate and hand over the site before 31.03.2012 after removing all the obstructions pointed out above.
I therefore request you to revoke my contract agrt. for the above work in accordance with the conditions of contract and refund the security deposit and release the bank guarantee at your earliest convenience."
6. Later, he sent Ext.P4 letter dated 01.06.2012 wherein after stating that he cannot wait indefinitely, the petitioner had stated as follows:
W.P.(C) No. 3346 of 2014 8
"Under the above circumstances I request you to issue necessary order revoking my contract agreement for the above work in accordance with the conditions of contract and refund my security deposit, release the bank guarantee and pay the amount of Rs.1,14,900/- remitted by me to KSEB on behalf of the dept. and Rs.5 lakhs spent by me for providing preliminary arrangements at the site to start the work, in case enhancement of the rate cannot be considered."
7. He thereafter filed W.P.(C) No.23275 of 2012 in this Court wherein the relief sought was to relieve him from the work on the ground that the site has not been handed over. When the writ petition came up for hearing, the stand taken by the petitioner was that he will not take up the work since the respondents have not considered his request for revision of rates and therefore he is not desirous of proceeding with the work. It is evident from the stand taken by the petitioner that he was really not interested in executing the work at the agreed rates but was interested in executing the work only if a revision of rates is given. The revision sought was 50% above the revised estimate. As per the revised estimate prepared by the Chief Engineer, the probable amount of contract is Rs.14,70,00,000/-. The revised estimate was prepared having regarding to the 2012 PWD Schedule of rates. If the demand of the petitioner is accepted, the probable amount of contract will be 50% above Rs.14,70,00,000/-. In W.P.(C) No. 3346 of 2014 9 other words, the intention of the petitioner is to see that the work is awarded to him at a higher rate without it being re-tendered. From the conduct of the petitioner and the attended circumstances, more particularly the stand taken by him in Exts.P3 and P4 letters, it cannot be said that the decision taken by the respondents to relieve him from the contractual obligation without risk and cost and to re-tender the work after the land is acquired, is arbitrary or unfair. It cannot also be said to whimsical or motivated by extraneous considerations. The petitioner cannot in my opinion be heard to contend that notwithstanding the stand taken by him in Exts.P3 and P4 letters and the relief prayed for in W.P.(C).No.23275 of 2012, the work should be awarded to him after suitably revising the rates. The claim made by the petitioner was, in my opinion, rightly rejected by the respondents.
I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. The claim of the petitioner for refund of the money already spent by him, is kept open to be raised in other appropriate proceedings.
Sd/-
P.N.RAVINDRAN, JUDGE DSV/21/02