Kerala High Court
The Secretary To Government vs Paulson Chacko on 29 November, 2018
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940
WA.No. 1873 of 2018
AGAINST THE JUDGMENT DATED 08.05.2018 IN WP(C).NO. 32319/2016
APPELLANT/RESPONDENTS IN WP(C):
1 THE SECRETARY TO GOVERNMENT
LOCAL SELF GOVERNMENT DEPARTMENT(UA), GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001
2 THE PROJECT DIRECTOR,
KERALA SUSTAINABLE URBAN DEVELOPMENT PROJECT
(KSUDP),GOVERNMENT OF KERALA,5TH FLOOR,TRANS TOWERS,
VAZHUTHACAUD,THIRUVANANTHAPURAM-14,NOW REPRESENTED BY
THE MISSION DIRECTOR,AMRUT,LOCAL SELF GOVERNMENT
DEPARTMENT,GOVERNMENT OF KERALA,THIRUVANANTHAPURAM
3 THE ADDITIONAL PROJECT MANAGER,
(SUPERINTENDING ENGINEER),JNNURM PROJECT CIRCLE,KERALA
WATER AUTHORITY,KOCHI-11
4 THE PROJECT MANAGER,
PROJECT IMPLEMENTATION UNIT (PIU),KSUDP,CORPORATION OF
COCHIN,OFFICE OF THE CORPORATION OF COCHIN,KOCHI-11
BY ADV. GOVERNMENT PLEADER SRI.S.U.NAZER
RESPONDENT/PETITIONER IN W.P(C):
PAULSON CHACKO
A CATEGORY CONTRACTOR IN KERALA WATER AUTHORITY,
MULAVARICKAL HOUSE, PIRAROOR, KALADY, ERNAKULAM
DISTRICT-683574
BY ADV.SRI.C.S.AJITH PRAKASH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2018, ALONG
WITH W.A.2052 OF 2018 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
WA.Nos. 1873 & 2052 of 2018 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940
WA.No. 2052 of 2018
AGAINST THE JUDGMENT DATED 08.05.2018 IN WP(C).NO. 32319/2016
APPELLANT/PETITIONER IN WP(C):
MR.PAULSON CHACKO
A CATEGORY CONTRACTOR IN KERALA WATER AUTHORITY,
MULAVARICKAL HOUSE, PIRAROOR, KALADY,
ERNAKULAM DISTRICT.
BY ADVS.SRI.C.S.AJITH PRAKASH
A.T.JOSE
SRI.BIJITH S.KHAN
SRI.PAUL C THOMAS
SRI.T.K.DEVARAJAN
SRI.UNNI NAIR
RESPONDENT/RESPONDENTS IN W.P(C):
1 THE SECRETARY TO GOVERNMENT
LOCAL SELF GOVERNMENT DEPARTMENT(UA),
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE PROJECT DIRECTOR,
KERALA SUSTAINABLE URBAN DEVELOPMENT PROJECT (KSUDP),
GOVERNMENT OF KERALA, 5TH FLOOR, TRANS TOWERS
VAZHUTHACAUD, THIRUVANANTHAPURAM-14.
3 THE ADDITIONAL PROJECT MANAGER,
(SUPERINTENDING ENGINEER)
JNNURM PROJECT CIRCLE, KERALA WATER AUTHORITY,
KOCHI-11
4 THE PROJECT MANAGER
PROJECT IMPLEMENTATION UNIT(PIU), KSUDP, CORPORATION
OF COCHIN, OFFICE OF THE CORPORATION OF COCHIN, KOCHI-
11.
BY GOVERNMENT PLEADER SRI.S.U.NAZER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2018, ALONG
WITH W.A.1873/2018 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
WA.Nos. 1873 & 2052 of 2018 3
JUDGMENT
Hrishikesh Roy, C.J.
These two Writ Appeals arise out of the judgment dated 08.05.2018 in W.P. (C).No.32319 of 2016, whereby the learned Single Judge held that the petitioner contractor is entitled for payment towards 1200 mm MS pipes procured by him but rejected the other claim towards dismantling work, pointing it out as a disputed question of fact.
2. The W.A.No.2052 of 2018 is filed by the writ petitioner/contractor, whereas the W.A.No.1873 of 2018 is filed by the Government in the Local Self Government Department. For the sake of convenience we are noting the facts by referring to the annexures in the W.A.No.2052 of 2018.
3. The matter pertains to contract for which the Project Director, Kerala Sustainable Urban Development Project (KSUDP) of the Government of Kerala (respondent No.2) issued an e-tender notification on 14.12.2011 for replacement of old damaged 700 mm Primo pipe from Port Bristow road to east end of Mattancherry Bridge, using 700 mm DI K9 pipe and 710 mm HDPE pipe. The petitioner was chosen for the contract. The Additional Project Manager, Project Implementation Unit, Cochin, on 03.08.2012, issued the Ext.P2 letter of acceptance. The specification of work to be done, along with accepted schedule was also issued to him, as contained in Ext.P3, along with the letter of acceptance. The petitioner thereupon furnished the performance security and executed the agreement on 27.08.2012 (Ext.P4) with the Additional Project Manager. The work started on WA.Nos. 1873 & 2052 of 2018 4 07.05.2013 and it was completed on 31.03.2014. The Kerala Water Authority, which is the implementing agency, prepared a bill module. As payment was delayed the petitioner submitted Ext.P12 representation to the Secretary to Urban Affairs Department. By Ext.P13 minutes (11.12.2015), the Project Director KSUDP, disallowed payment towards certain items. The grievance of the petitioner is over the action of the Project Director in Ext.P13 in disallowing these payments for the work specified in clause 7(a) and 8 of Ext.P3 accepted schedule.
4. The Item 7(a) and item 8, of Ext.P3 read as follows:
"7a: Dismantling the existing PSC pipe under the railway culvert and cleaning the railway culvert of all soil, sand etc for enabling the laying of MS casing pipe for HDPE pipeline, rate to include for all sundry works such as removing temporarily the existing concrete slabs of valve chambers, drains wherever necessary and re positioning the same after backfilling the newly laid pipeline.
8 : Item 8 is towards manufacturing, providing, transporting, rolling, lowering, laying & jointing, pushing through culvert, commissioning of ERW (Electric Resistance Welded)/ SAW (submerged Arc Welded) 1200mm MS pipe of 10 mm thick (FE-410 grade) conforming to IS 3589-2001 with latest amendment including perfect linking and welding of joints to correct position including cost and conveyance of pipes and materials with all lead and lift, etc, complete as per detailed specifications. With inside CM 1:1:5 lining or minimum 12mm thick and outside minimum 25 mm thick coating in CM 1:3 over 50x50 mm weld mesh of 13 guage, including loading and unloading pipes, including bailing out of water wherever necessary. The rates are inclusive of all taxes and duties. "
As against the aforesaid items the quantity, unit, rate as well as amount were also given. Against item 7a the quantity was 30; unit:m, rate:20000 and Amount: 600000.00. Against item 8, the quantity was 30; unit:m; rate:36000 and amount:1080000.
5. The petitioner submits that immediately after the execution of agreement he had inspected the work site along with the officials of Kerala Water Authority and WA.Nos. 1873 & 2052 of 2018 5 assessed the requirement of 1200 mm casing pipes, 700 mm DI pipe and 710 mm HDP pipe and other materials required for the work. It is his case that he procured 1200 mm dia casing pipe and brought the same to the work site, as it was found that 24 metres of casing pipe would be required to cross the railway culvert, as against 25 metres specified in the accepted schedule. 60% of its cost was paid to him.
6. In order to carry out the work, permission from railway authorities was required, as the pipes were to be laid crossing the railway culvert and excavation under the railway line would be necessary. After obtaining formal sanction from the authorities of Railways, on carrying out the work of excavation, it was found that 1200 mm casing pipe could not be laid in the culvert area, as several other high tension cables, utility ducts, etc were passing through the culvert. The petitioner thereupon informed the implementing agency, as per Ext.P5 letter (6.12.2013) that since the culvert is too narrow, 1200 mm casing pipe cannot be used and suggested that 700 mm pipes, which are already with him in excess, can be utilised in its place. Based on Ext.P5 letter, the officials including the Superintending Engineer visited the site on 23.12.2013 and on being convinced of the impossibility of laying the 1200 mm casing pipe, the officials directed the petitioner to lay 800 mm casing pipe in the place of 1200mm casing pipe.
7. The Assistant Executive Engineer had thereafter on 27.12.2013 (Ext.P6), informed the matter to the Additional Project Manager. The petitioner thereupon procured 800 mm dia casing pipe and thereafter sought extension of time for completing the work. The petitioner submits that item 8 of Ext.P3 is part of the contract, according to which the petitioner had to lay 1200 mm MS casing pipe and WA.Nos. 1873 & 2052 of 2018 6 for this purpose he had purchased the same. It was only after inspection conducted by the authorities that the petitioner was asked to lay casing pipe of 800 mm. Therefore he claims that he is entitled for payment towards procurement of 1200mm casing pipe.
8. It is also his case that he had to do extra work of dismantling, covered by Item 7(a) of Ext.P3. Instead of 30m, he had to dismantle 76m length so as to connect the new pipe with the existing pipes. Relying on Ext.P9 undated certificate issued by the Assistant Engineer, Assistant Executive Engineer, Executive Engineer and Additional Project Manager, the petitioner claims that the alignment of newly laid 700 mm DI pipe line at the east end of Mattanchery Bridge and at Bristo road was in the same alignment of the existing 700 mm premo pipe and the proposed line is connected to the existing 600 mm valve. The Engineers had certified that the alignment of the newly laid pipe line could not be changed as the line is passing through the culvert under railway line and connected to the existing BWSC pipe. They had certified that the nature of the corresponding and additional works were similar to item No.7a in BOQ and requires more man power and expenditure.
9. The first point raised by the respondents to the contractor's claim, related to the maintainability of the Writ Petition inasmuch as the amount claimed and the work done was disputed and should ideally be determined in a civil court. It was also pointed out that the work related to a project funded by the Asian Development Bank and the work was awarded to the petitioner under the Kochi Water Supply Scheme. They contended that it is a remeasured item rate contract and the quantity for each item was provided in the schedule, subject to re-measurement, WA.Nos. 1873 & 2052 of 2018 7 and therefore, payment is permissible only for the actual quantity of the work executed, measured and recorded.
10. In relation to the first claim towards the laying on the 1200 mm MS pipe, the learned Single Judge concluded as follows:
".................................................................................
15. The General Conditions of Contract contained in clause 6B relating to the work requirement are as those contained in Ext.R2(a). Ext.P3 is the accepted schedule furnished to the petitioner after the letter of acceptance was issued on 03.08.2012. The dispute raised by the petitioner is with respect to item 7(a) and item 8. While item 7a relates to dismantling work under the railway culvert, etc for enabling the laying of MS casing pipe for HDPE pipeline, item 8 relates to manufacturing, providing, transporting, rolling, lowering, laying & jointing, pushing through culvert, "commissioning of ERW 1200 mm MS pipe of 10mm thick" conforming to IS 3589-2001 with latest amendments, etc as per detailed specifications. The quantity of the same was mentioned as 25m. Rate was fixed as Rs.45,000/- and the total amount fixed was Rs.11,25,000/-. Similarly with respect to item 7a relating to dismantling of existing PSC pipes under the railway culvert the quantity specified was 30m at the rate of Rs.20,000/- for an amount of Rs.6,00,000/-. The issue raised in the writ petition is regarding the fact whether 1200 mm MS pipes were liable to be procured by the contractor before the inspection of the railway line. As far as item no.8 is concerned the size of the casing pipe is specifically stated in the acceptance schedule as 1200mm MS of 10mm thickness. That being so the duty of the contractor would be to look into the actual requirement of 1200 MS casing pipe for completing the work. An objection as to procurement of 1200 MS casing pipe could have been raised only if there was no specification regarding the size of the casing pipe to be laid, in item 8. It can be seen from the letter Ext.P6 that the respondents themselves had arrived at a conclusion that 1200 mm MS pipe would not fit under the railway line and it was necessary to lay 800 mm pipe. Moreover the respondents had effected payment to the tune of 60% towards the same, though it was adjusted towards the required 800 mm casing pipe. Therefore respondents are not correct in saying that the petitioner is not eligible for the cost of 1200 mm MS pipe, as a mere reading of item 8 of Ext.P3 would reveal the requirement.
16. The committee which considered the case of the petitioner WA.Nos. 1873 & 2052 of 2018 8 on 11.12.2015 as can be seen from Ext.P13 minutes, disallowed the payment for the casing pipe of 1200 mm as per clause 1.1 scope of work in sec.B and work requirement which read as follows:
(j) The actual requirement of 1200 MS pipe to be used as casing pipe will have to be assessed by the contractor after finalizing the plan of railway crossing.
The existing crossing, has to be identified after removal of silt, mud from the existing culvert and cleaning the vegetation nearby.
(k) The required size, degree and number of specials will have to be reconfirmed by the contractor after finalizing the alignment In consultation with the Engineer and got approved by the Employer, The quantities jn the BOQ are only indicative.
17. While clause (k) was with respect to the required size, degree and number of specials which were to be reconfirmed by the petitioner after finalising the alignment in consultation with the engineer what was stated in clause (j) was that actual requirement of "1200 mm MS pipe to be used as casing pipe"
was to be assessed by the contractor after finalising the plan of railway crossing. When requirement of "1200mm MS pipe"
to be used as casing pipes remained unambiguous all along and a difference in the size of casing pipe was found only later, the respondents can not saddle the responsibility for procuring 1200 mm MS pipe on the petitioner. It is also pertinent to note that Ext.P13 minutes itself shows that the mistake in procuring the pipe was not of the contractor but that of the consultants who prepared and scrutinized the DPR. The relevant portion of Ext.P13 reads as follows:
"Then Secretary asked the opinion of APM; PM, PIU and DPD (Infra). All of them were Of the opinion that since the contractor has procured the 1200 MS casing pipe as per BQQ item, this may be admitted and payment can be made to contractor. Also it was not the mistake of the contractor but that of the consultants who, prepared and scrutinized the DPR. The responsibility of the contractor is limited to ascertaining the length of the pipes and not the size of the pipes. The contractor could not change the size of the pipes as the '"work is that of replacing the old pipe line.WA.Nos. 1873 & 2052 of 2018 9
There is no clause in the contract that prevents the payment to the contractor against the supply of 1200 m MS pipes Additional Project, Manager and Project Manager pointed out further that such payments were made to the contractor in a similar case under the contract KCH-WS-02A".
18. It can be seen that even at that meeting a final decision was not taken regarding the payment of pipe and the matter was referred to the Kerala Water Authority to resolve the issue. It would appear that the payment was disallowed only because the ADB rejected the request. But the petitioner who acted in terms of Ext.P3 cannot be penalised for the defaults committed in the specifications.
..........................................................................................."
11. With regard to the 2nd claim relating to dismantling work and re-linking of the pipes, the learned Single Judge found the following in paragraph 19 :
".......................................................................................
19. At the same time regarding the dismantling work in item 7(a), even though the quantity is mentioned as 30 m, in the accepted schedule, and there is a certificate Ext.P9, the respondents are disputing the same regarding the nature of work carried out. There is no specification regarding the requirement of dismantling in Ext.P3. What is stated is dismantling of existing PSC pipe under the railway culvert and cleaning the railway culvert of all soil, sand etc. for enabling laying of the MS casing pipe for HDPE pipe line. It is also stated that the rate would include for all sundry works like removing temporarily the existing concrete slabs of valve chambers, drains wherever necessary and repositioning the same after backfilling the newly laid pipeline. It is an admitted fact that dismantling became necessary not only under the railway culvert but certain other places also. Petitioner has relied on Ext.P9 certificate in which the Engineers who were in charge stated that alignment of newly laid 700 mm DI pipe line at the east end of Mattancherry bridge and at Bristow road is in the same alignment of the existing 700 mm premo pipe. The petitioner is claiming payment for the said dismantling on the basis of Ext.P9 certificate in which the Engineers under the respondents found that the additional works the contractor has done is similar to item 7(a). Regarding item no.7(a) Ext.P13 states that when an additional item of work has to be executed the Project Manager has to assess whether the nature of the WA.Nos. 1873 & 2052 of 2018 10 work is corresponding to any of the items in the BoQ and whether the rate can be applied to the additional item also. Even though in Ext.P13 it was decided to apply the same rate after getting a certificate from the Additional Project Manager, the Additional Project Officer has not issued such a certificate apparently disputing the nature of work, despite the certificate Ext.P9. When there is a dispute with respect to the nature of work carried out Ext.P9 certificate alone will not be sufficient for this court to exercise its jurisdiction under Article 226 of the constitution of India, for directing payment. ........................................................................................."
12. In these Writ Appeals, we are concerned with the findings as recorded by the learned Single Judge in respect of only Clause 7(a ), where we can discern from the undated certificate (Ext.P9) relied upon by the contractor that the respondents were disputing as to whether the extra work done by the contractor is to be taken as the same, for applying the same rate as envisaged under Clause 7(a). In fact, it is the specific finding in the certificate that the work required more man power and expenditure and moreover it was not to be executed under the railway culvert. This would indicate that an independent rate will have to be determined and fixed for this item of work. Therefore, we are of the considered view that the resolution adopted in the minutes of the meeting held on 11.12.2015 (Ext.P13) will not enable the contractor, to claim payment for the additional work done by him and the rate applicable to works covered under Clause 7(a). In the absence any material to show that the works were identical in nature, which can be determined through adducing evidence in that regard, we are of the view that the liberty granted by the learned Single Judge to the contractor to approach the civil court, requires no intervention. Over and above the said liberty granted by the impugned judgment, we also leave it open for the contractor to make representation to the authorities, for fixing a separate rate for the additional works WA.Nos. 1873 & 2052 of 2018 11 done by him.
13. In so far as the other W.A.1873 of 2018 is concerned, having regard to the basis on which the learned Judge declared that the contractor is entitled to receive payment towards 1200 mm MS pipe procured by him, we find that it was the correct decision based on the recommendation of the competent authorities, and accordingly, we see no reason to interfere with the said finding of the learned Single Judge.
14. In the result, both Writ Appeals are dismissed, without any order as to costs.
Sd/-
HRISHIKESH ROY CHIEF JUSTICE Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns