Kerala High Court
K.N.Nejukumar vs The Executive Engineer on 19 November, 2025
2025:KER:89891
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TH
WEDNESDAY, THE 19 DAY OF NOVEMBER 2025 / 28TH KARTHIKA,1947
WP(C) NO. 40906 OF 2024
PETITIONER/S:
K.N.NEJUKUMAR
AGED 54 YEARS
S/O.NARAYANAN,
KAPRAKKATTU HOUSE,
KANJOOR KARA,
KANJOOR POST,
ALUVA TALUK,
ERNAKULAM DISTRICT.,
PIN - 683575
BY ADVS.
SRI.M.G.JEEVAN
SMT.HEERA MURALEEDHARAN K.
RESPONDENT/S:
1 THE EXECUTIVE ENGINEER
KUTTANAD DEVELOPMENT DIVISION,
THANNEERMUKKOM, CHERTHALATALUK,
ALAPPUZHA DISTRICT.,
PIN - 688257
2 ASSISTANT EXECUTIVE ENGINEER
KUTTANAD DEVELOPMENT DIVISION,
THANNERMUKKAM, CHERTHALA TALUK,
ALAPPUZHA DISTRICT.,
PIN - 688257
3 ASSISTANT ENGINEER
KUTTANAD DEVELOPMENT DIVISION,
THANNERMUKKAM, CHERTHALA TALUK,
ALAPPUZHA DISTRICT.,
PIN - 688257
W.P.(C) No.40906 of 2024
2
2025:KER:89891
4 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY,
IRRIGATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
OTHER PRESENT:
SMT.K.G.SAROJINI, SR.G.P
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.11.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.40906 of 2024
3
2025:KER:89891
JUDGMENT
The petitioner is an A Class civil contractor. This writ petition is submitted by the petitioner challenging Exts.P20 and P27 orders passed by the 1st respondent, by which the petitioner's contract was terminated at the risk and cost of the petitioner, and an amount of Rs.15,31,440/ was demanded as the amount payable by the petitioner.
2. The facts that led to the filing of this writ petition are as follows:
The petitioner was awarded with a work named KP -
Infrastructural Development Works of Puthiyeri Padasekharam in Thiruvarppu Panchayath. The agreement was entered into in respect of the said work on 17.02.2022 and the work site was handed over to the petitioner on 26.02.2022. As per the terms and conditions of the contract, the petitioner was to complete the work within a period of nine months, which ended on 25.11.2022. According to the petitioner, for various reasons not attributable to the petitioner, the work could not be completed.
One of the specific reasons highlighted was that, taking note of W.P.(C) No.40906 of 2024 4 2025:KER:89891 the peculiar geographical features of the site which is at Kuttanad, and the nature of the work to be performed, the same could have been carried out only during dry seasons and the suitable period was from the months of March to May. However, during the original tenure, due to various reasons, including the availability of hindrance hindrance-free site, the work could not be completed and therefore, the period was extended on three occasions. As per the last extension provided, the work ought to have been completed on or before 31.05.2022. However, before completing the said work, Ext.P20 was issued to the petitioner, by the 1st respondent, terminating the contract at the risk and cost of the petitioner. Based on Ext.P20, Ext.P27 notice was also issued by the Executive Engineer, requiring the petitioner to pay an amount of Rs.15,31,440/. This writ petition is submitted by the petitioner in such circumstances challenging Exts.P20 and Ext.P27.
3. A counter affidavit was filed by the 1 st respondent, wherein, the averments made by the petitioner are denied and the reliefs sought are opposed. The details of the circumstances W.P.(C) No.40906 of 2024 5 2025:KER:89891 under which the extension of the period was granted to the petitioner and the communications exchanged between the parties in connection with the same were also furnished in the counter affidavit. It was asserted that, despite extending the term of the contract for three times, the petitioner could achieve only 7% progress in the work and it was in these circumstances the termination was ordered. It was also averred that, all the hindrances which stood in the way of the petitioner in completing the work were cleared, but there was no progress in the work. Thus, the respondents seek for dismissal of the writ petition.
4. I have heard Sri.M.G Jeevan, the learned counsel for the petitioner and Smt.K.G Sarojini the learned Government Pleader for the respondents.
5. The learned counsel for the petitioner raised his contention mainly relying upon Ext.P23, which is the decision taken in a meeting convened by the Executive Engineer in the presence of all the stake holders including the petitioner. It was pointed out by placing reliance upon the same that, the reasons W.P.(C) No.40906 of 2024 6 2025:KER:89891 which prevented the petitioner from completing the work were not attributable to the petitioner, but it was on account of the lapses on the part of the respondents themselves in making available a hindrance-free site. The meeting in which the Ext.P23 decision taken was on 18.10.2023.
6. The learned counsel for the petitioner also brought the attention of this Court to Ext.P21 submitted by the petitioner, wherein, he had highlighted all the circumstances that prevented him from continuing the work, and the inaction on the part of the respondents in this regard were highlighted. Thus, it was submitted that, Ext.P20, the order cancelling the contract at the risk and cost of the petitioner, is liable to be interfered with.
7. On the other hand, the learned Government Pleader would oppose the aforesaid contention by reiterating the contentions raised in the counter affidavit filed by the 1 st respondent, wherein, the details of the opportunities extended to the petitioner and the failure on the part of the petitioner to fulfil the obligations were highlighted. W.P.(C) No.40906 of 2024 7
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8. I have carefully gone through the records. As mentioned above, one of the main documents relied on by the petitioner to substantiate his contentions is Ext.P23. Of course, on going through the contents of Ext.P23, it can be seen that there were various reasons which prevented the petitioner from carrying out the work effectively. As far as the first dry season which falls within the original tenure of contract, is concerned, the Executive Engineer himself reported that, since the Padasekhara Samithy had pumped water into the side for rearing ducks, it was not conducive for carrying out the said works.
9. Apart from the above, it was also reported by the Assistant Executive Engineer that, there was a transformer on the site, which was to be removed for carrying out the said work and the same had also contributed to the delay. It was also recorded in Ext.P23 that, the petitioner had accumulated coconut piles, for the purpose of commencing the work, but due to the fact that the petitioner was not in a position to start the work on account of the reasons mentioned above, the same W.P.(C) No.40906 of 2024 8 2025:KER:89891 became useless. Besides, in the site, the traditional implements of irrigation namely, '(petty and para') were installed, and the same ought to have been removed, but the same was also not removed. This also contributed to the delay in commencing the work. In Ext.P23, it was reported that, as regards the change of location of the transformer is concerned, the KSEB has reported that, the said complaint had been addressed by taking an alternate method. The implements for irrigation were also reported to have been removed by the time the meeting in which the Ext.P23 decision was taken. Thus, as per Ext P23, after taking note of all the relevant aspects, it was decided to recommence the work by November 15th of 2023. The work which was supposed to be commenced on 15 th of November, 2023 was the ramp to be constructed as part of the same. Thus, Ext.P23, deals with the reasons which prevented the petitioner from carrying out the work, up to 18.10.2023. As per the same an understanding was reached to commence the work, by 15th of November.
W.P.(C) No.40906 of 20249
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10. The case of the petitioner is that, even after the said period, the work could not be commenced, as the situation conducive for commencing the work was not available. One of the documents to substantiate the said contention is Ext.P18 dated 16.12.2023. The said communication is by a person on whose property one of the ramps was to be constructed, and the said document would indicate that, the consent for carrying out the said construction was granted by the land owner only on 16.12.2023. According to the petitioner, immediately after getting the consent he had completed the work of the ramp. However, the second ramp could not be constructed on account of the fact that no consent was obtained by the authorities concerned, from the owner of the property.
11. As mentioned above, Ext.P23 provides justifiable reasons that substantiate the case of the petitioner with regard to the delay caused in the work up to 18.10.2023. However, it is a fact that, the petitioner was granted extension of time on three occasions, and the last extended period was up to 31.05.2024. On going through Ext.P20, which is the order W.P.(C) No.40906 of 2024 10 2025:KER:89891 impugned in this case, the main reason for cancelling the contract at the risk and cost of the petitioner was the lapses on the part of the petitioner after the period covered by Ext.P23, and there is a specific finding that, the petitioner could not commence the work, despite the fact that all the hindrances were removed by that time. On going through Ext.P20 order, it can be seen that, the petitioner was issued with three notices on 23.02.2024, 25.03.2024 and 08.04.2024. As far as the first two notices are concerned, those were issued to the petitioner by the Executive Engineer, the 1st respondent herein, requiring the petitioner to complete the work urgently. It is discernible from Ext.P20 that, the petitioner had issued a reply to the second notice on 27.03.2024, pointing out that favorable situations are not existing at the site for executing the work. Since this explanation was not found satisfactory, a final notice was issued on 08.04.2024, directing the petitioner to complete the work, and also informing that in case of failure in completing the work, the agreement will be terminated at his risk and cost. However, W.P.(C) No.40906 of 2024 11 2025:KER:89891 going by Ext.P20, there was no response from the contractor and Ext.P20 was issued in such circumstances.
12. Of course, immediately after receipt of Ext.P20, which is dated 10.06.2024, the petitioner submitted Ext.P21 on 22.06.2024 to the Superintending Engineer, highlighting the reasons that prevented the petitioner from continuing the work and according to the petitioner, the same were beyond the control of the petitioner.
13. When carefully going through all these materials, including the observations and findings in Ext.P20, it can be seen that, several opportunities were extended to the petitioner. But despite the above, the petitioner did not avail the said opportunities. Of course, the petitioner explains the reasons for not completing the work in time, by submitting Ext.P21. However, it is a fact that, going by Ext.P20, it can be seen that, three notices have been issued to the petitioner, before issuing Ext.P20. Only one of the notices was responded to, and it was found that the reasons therein were not satisfactory. But the final notice issued to the petitioner intimating termination of the W.P.(C) No.40906 of 2024 12 2025:KER:89891 contract was not responded to by the petitioner, which ultimately paved way to issuance of Ext.P20. Since the last notice intimating the proposal of termination remained unanswered by the petitioner is a fact, and this would, to some extent, create a shadow of doubt over the contentions raised by the petitioner as an explanation for the delay in completing the work. It is also a fact that, even though the petitioner is citing several reasons in Ext.P21, for not commencing and completing the work in time, it is not discernible from the records that such hindrances were brought to the notice of the authorities concerned in time, by issuing communications in this regard. Of course, as per Ext.P23, going by the reports of the officers concerned, there are justifiable reasons which prevented the petitioner from carrying out the work up to 18.10.2023. However, no such report or other materials are before this Court to show that there were justifiable reasons that prevented the petitioner to carryout the work after the period referred to in Ext.P23. On the other hand, Ext.P20 contains specific reasons and findings to the effect that, the hindrance-free site was W.P.(C) No.40906 of 2024 13 2025:KER:89891 available. As far as those issues are concerned, being factual findings, an adjudication thereon cannot be made by this Court under Article 226 of the Constitution of India. Evidently, the notice issued to the petitioner before termination was not responded to by the petitioner and it was in these circumstances Ext.P20 was issued. Since there is no case to the petitioner that none of the notices were served upon the petitioner and no explanation is forthcoming in not submitting any reply to the notice, I am of the view that the contentions raised by the learned counsel for the petitioner with regard to the violation of principles of natural justice cannot be accepted.
14. It is a fact that, this writ petition was submitted on 17.11.2024 and due to the pendency of this writ petition, work which is the subject matter of this dispute has not been re- tendered. It is evident from the records that the project was intended to the benefit of the local people and any delay in completion of the project would cause serious prejudice to the people of that locality. In such circumstances, I am of the view that interference in Exts.P20 and P27 as sought by the W.P.(C) No.40906 of 2024 14 2025:KER:89891 petitioner need not be granted. This would mean that the termination of the contract need not be interfered with, but since the termination of the contract on the risk and cost of the petitioner, would cause serious civil consequences to the petitioner, it can have a re-consideration only to that extent. This view is taken by this Court mainly because of the fact that, in Ext.P21, the petitioner had raised specific grounds, explaining the reasons that prevented the petitioner from carrying out the said work on the last dry season during the year 2024.
In such circumstances, this writ petition is disposed of, quashing Ext.P20, only to the extent of termination of contract at the risk and cost of the petitioner. To be precise, Ext.P20 to the extent terminating the contract would stand upheld, but as regards the liability to be imposed upon the petitioner and the reasons that prompted the authorities to terminate the contract at the risk of the petitioner requires reconsideration. Thus, it is ordered that the respondents shall be at liberty to re-tender the work so as to expedite the process of completing the work, which is the subject matter of the dispute. However, in the W.P.(C) No.40906 of 2024 15 2025:KER:89891 matter of imposing liability upon the petitioner, the Superintending Engineer shall consider Ext.P21 and appropriate orders thereon shall be passed with reference to the liability of the petitioner after giving him an opportunity for being heard. This shall be done within a period of two months from the date of receipt of a copy of this judgment.
Sd/-
ZIYAD RAHMAN A.A. JUDGE rpk/DG W.P.(C) No.40906 of 2024 16 2025:KER:89891 APPENDIX OF WP(C) 40906/2024 PETITIONER EXHIBITS Exhibit P1 TRUE PHOTO COPY OF TECHNICAL SANCTION ISSUED BY EXECUTIVE ENGINEER, IRRIGATIONDEPARTMENT, GOVERNMENT OF KERALA DATED 29.12.2021.
Exhibit P2 TRUE COPY OF TENDER DATED 7.1.2022
SUBMITTED BY THE PETITIONER BEFORE
EXECUTIVE ENGINEER, KERALA WATER
RESOURCES DEPARTMENT.
Exhibit P3 TRUE PHOTO COPY OF COMMUNICATION DATED
27.1.2022 ISSUED BY THE EXECUTIVE
ENGINEER, KUTTANAD DEVELOPMENT DIVISION, THANNEERMUKKOM.
Exhibit P4 TRUE PHOTO COPY OF AGREEMENT NO:
18/EE/KD/2021-22 DATED 17.2.2022.
Exhibit P5 TRUE PHOTO COPY OF LETTER DATED
13.10.2022 ADDRESSED TO THE ASSISTANT
EXECUTIVE ENGINEER, K.D.DIVISION,
THANNEERMUKKAM ISSUED BY EXECUTIVE
ENGINEER.
Exhibit P6 TRUE PHOTO COPY OF THE LETTER DATED
21.1.2023 ISSUED BY ASSISTANT ENGINEER, KD SECTION NUMBER 2, THANNERMUKKAM ADDRESSED TO ASSISTANT ENGINEER, KUMARAKAM ELECTRICAL SECTION, KSEB.
Exhibit P7 TRUE PHOTO COPY OF LETTER DATED 6.2.2023, ISSUED BY ASSISTANT ENGINEER, ELECTRICAL SECTION, KUMARAKOM ADDRESSED TO ASSISTANT ENGINEER, KUTTANAD DEVELOPMENT SECTION 2, THANNEERMUKKAM.
Exhibit P8 TRUE PHOTO COPY OF LETTER DATED 6.2.2023, ISSUED BY ASSISTANT ENGINEER, KUTTANAD DEVELOPMENT SECTION 2, THANNEERMUKKAM ADDRESSED TO ASSISTANT EXECUTIVE ENGINEER, KUTTANAD DEVELOPMENT SECTION 2, THANNEERMUKKAM Exhibit P9 TRUE PHOTO COPY OF LETTER DATED 7.2.2023, ISSUED BY ASSISTANT ENGINEER, KUTTANAD DEVELOPMENT SECTION 2, THANNEERMUKKAM W.P.(C) No.40906 of 2024 17 2025:KER:89891 ADDRESSED TO ASSISTANT EXECUTIVE ENGINEER, KUTTANAD DEVELOPMENT SECTION 2, THANNEERMUKKAM.
Exhibit P10 TRUE PHOTO COPY OF THE PAY SLIP DATED 30.3.2023OBTAINED FROM STATE BANK OF INDIA, KALADY BRANCH Exhibit P11 TRUE PHOTO COPY OF LETTER DATED 19.3.2023 GIVEN TO EXECUTIVE ENGINEER, K.D.SECTION, THANNERMUKKAM BY ONE M.J.SEBASTIAN, SECRETARY, PUTHIYERI PADASEKHARA SAMITHI Exhibit P12 TRUE PHOTO COPY OF LETTER DATED 22.5.2023 SEND BY ASSISTANT EXECUTIVE ENGINEER, K.D.SUB DIVISION THANNERMUKKAM TO EXECUTIVE ENGINEER.
Exhibit P13 TRUE PHOTO COPY OF THE PROFORMA ACCOMPANY THE RECOMMENDATION FOR EXTENTION OF TIME MADE BY ASSISTANT ENGINEER, ANNEXED 2 EXHIBIT P12 LETTER ALONG WITH TYPED COPY. Exhibit P14 TRUE PHOTO COPY OF LETTER DATED 24.12.2023 ISSUED BY ASSISTANT EXECUTIVE ENGINEER, ADDRESSED TO EXECUTIVE ENGINEER Exhibit P15 TRUE PHOTO COPY OF THE PROFORMA ACCOMPANY THE RECOMMENDATION OF ASSISTANT ENGINEER K.D.SECTION NO:2, THANNERMUKKAM, ANNEXED TO P14 LETTER Exhibit P16 TRUE PHOTO COPY OF LETTER DATED 12.2.2024 ISSUED BY ASSISTANT ENGINEER K.D.SECTION NO:2, THANNERMUKKAM Exhibit P17 TRUE PHOTO COPY OF NOTICE DATED 22.7.2023 ISSUED BY EXECUTIVE ENGINEER, KUTTANAD DEVELOPMENT DIVISION Exhibit P18 TRUE PHOTO COPY OF CONSENT LETTER ISSUED BY K.M. LATHEEF TO THE EXECUTIVE ENGINEER DT 16.12.2023.
Exhibit P19 TRUE PHOTO COPY OF NOTICE DATED 12.2.2024 ISSUED BY EXECUTIVE ENGINEER TO THE PETITIONER Exhibit P20 TRUE PHOTO COPY OF TERMINSTION ORDER NO:D1/2021/66/KP DATED 10.6.2024 ISSUED BY EXECUTIVE ENGINEER .
Exhibit P21 TRUE PHOTO COPY OF REPRESENTATION DATED 22.6.2024 SUBMITTED BY PETITIONER BEFORE SUPERINTENDED ENGINEER, KUTTANAD DEVELOPMENT CIRCLE, KOTTAYAM W.P.(C) No.40906 of 2024 18 2025:KER:89891 Exhibit P22 TRUE PHOTO COPY OF COMMUNICATION DATED 18.11.2022 OF ASSISTANT EXECUTIVE ENGINEER TO EXECUTIVE ENGINEER.
Exhibit P23 TRUE PHOTO COPY OF THE MINUTES OF THE
MEETING ON 18.10.2023 IN THE OFFICE OF
KUTTANAD DEVELOPMENT
OFFICE,THANNEERMUKKAM IN CONNECTION WITH THE KP INFRASTRUCTURAL DEVELOPMENT WORK PUTHIYERI PADASEKHARAM IN THIRUVARPPUR PANCHAYATH Exhibit P24 TRUE PHOTO COPY OF THE BILL DETAILS WHICH INCLUDES PETITIONER'S BILL OF RS.12,57,663/-
Exhibit P25 TRUE PHOTO COPY REPRESENTATION DATED 26.2.2022 MADE BY THE PETITIONER TO THE EXECUTIVE ENGINEER Exhibit P26 TRUE PHOTO COPY REPRESENTATION MADE BY THE PETITIONER DATED 27.3.2024 TO THE EXECUTIVE ENGINEER Exhibit P27 TRUE PHOTO COPY NOTICE DATED 6.9.2024 ISSUED BY EXECUTIVE ENGINEER TO THE PETITIONER RESPONDENT EXHIBITS Exhibit R1(b) A true copy of the letter No.D1- 2021/66/KP dated 06.05.2022 issued by the Executive Engineer to the petitioner with typed clear copy Exhibit R1(a) A true copy of the letter No:KDS2/13/2020 dated 05.05.2022 issued by the Assistant Engineer to the petitioner Exhibit R1(c) A true copy of the letter dated 16.05.2022 from the petitioner to the Assistant Executive Engineer Exhibit R1(d) A true copy of the letter dated 18.05.2022 from the petitioner to the Executive Engineer Exhibit R1(e) A true copy of the letter No:
KDS2/13/2020 dated 20.09.2022 issued by the Assistant Engineer to the petitioner Exhibit R1(f) A true copy of the order No.D1-2021/66/KP dated 21.11.2022 W.P.(C) No.40906 of 2024 19 2025:KER:89891 Exhibit R1(g) A true copy of the order No.D1-2021/66/KP dated 25.05.2023 Exhibit R1(i) A true copy of the letter No:KDS2/13/2020 dated 28.11.2023 issued by the Assistant Engineer to the petitioner Exhibit R1(h) A true copy of the order No.D1-2021/66/KP dated 30.12.2023