Dismissed

Asok Kumar v. Superintending Engineer

Kerala HC14 Feb 2014WP(C)/3397/2014

Case brief

AI extract

What is this about?

In this writ petition, a petitioner contractor challenged the termination of his work contract by the Superintending Engineer due to delayed execution. The contractor claimed delay was caused by pending pollution control consent. The Court held the contract was not statutory and dismissed the petition, directing the petitioner to approach the civil court.

What the court decided

AI extract

Asok Kumar Vs Superintending Engineer — Contract and Commercial Disputes | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

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FRIDAY, THE 14TH DAY OF FEBRUARY 2014/25TH MAGHA, 1935

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WP(C).No. 3397 of 2014 (Y)

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PETITIONER(S):

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ASOK KUMAR,AGED 71 YEARS, S/O.P.K.RAMAN, CONTRACTOR, RAMAPRIYA, PARAYAKADU P.O, CHERTHALA VIA, ALAPPUZHA DISTRICT, PIN 688 540.

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BY ADVS.SRI.BABU JOSEPH KURUVATHAZHA SRI.T.K.BIJU (MANJINIKARA)

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RESPONDENT(S):

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SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES), SOUTH CIRCLE, PUBLIC OFFICE, MUSEUM P.O, THIRUVANANTHAPURAM 695 033.

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BY SR.GOVERNMENT PLEADER SRI. JOE KALLIATH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WP(C).No. 3397 of 2014 (Y)

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APPENDIX

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PETITIONER(S)' EXHIBITS;

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EXHIBIT P1. COPY OF THE PROCEEDING DATED 20.7.2010 OF THE RESPONDENT.

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EXHIBIT P2. COPY OF THE CONSENT NO.PCB/ALP/ICO-2411/13 DATED 10.4.2016 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.

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EXHIBIT P3. COPY OF THE ORDER NO.DB13/4673/09 DATED 16.11.13 ISSUED BY THE RESPONDENT.

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EXHIBIT P4. COPY OF THE REPRESENTATION DATED 7.12.13 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.

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RESPONDENT(S)' EXHIBITS:

N I L

/TRUE COPY/

P.S.TO JUDGE

Kss

P.N.RAVINDRAN, J.

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W.P.(C).No.3397 of 2014

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Dated this the 14^th day of February, 2014

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JUDGMENT

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The works of improving Thuravoor - Kumbalangi road and Eramalloor - Ezhupunna road were awarded to the petitioner at 23% above the estimate rate. An agreement was also executed on 20.7.2010. As per the agreement the work has to be completed within 15 months. The said period expired on 9.8.2011. Later, on the petitioner requesting for extension of time, the period for performance of the contract was extended upto 31.12.2012. The petitioner had not even then commenced the work with the result the contract was terminated at his risk and cost by Ext.P3 order dated 16.11.2013 issued by the Superintending Engineer, P.W.D., Roads and Bridges. Three weeks after Ext.P3 order was passed, the petitioner submitted Ext.P4 representation dated 7.12.2013 before the Superintending Engineer requesting him to recall and cancel the order terminating the contract and to permit him to execute the work. This writ petition was thereafter filed on 3.2.2014 mainly seeking an order directing the respondent to consider and pass orders on Ext.P4

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representation. In the alternative the petitioner prays for quashing Ext.P3 order terminating the contract and to direct the respondent to permit him to execute the work in terms of the agreement.

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It is evident from Ext.P3 that the work was awarded on 10.5.2010 and a formal agreement was entered into on 20.7.2010. The extended time fixed for completion of the work expired on 31.12.2012. It was only 11 months thereafter that the contract was terminated. The petitioner does not dispute the fact that he was not in a position to commence the work. His explanation is that it was on account of the delay in obtaining a consent to establish and operate a hot mix plant from the Kerala State Pollution Control Board, that he could not execute the work in time. The Apex Court has in Kerala State Electricity Board v. Kurien E.Kalathil , AIR 2000 SC 2573, held that except in cases where the contract is a statutory contract, this Court cannot interfere with an order terminating the contract and that the remedy of the aggrieved party lies in moving the competent civil court. The contract involved in the case on hand is not a statutory contract. The petitioner should therefore move the competent civil court and seek a declaration that the termination of the

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contract is not legal and valid and that the delay on his part in executing the work is on account of reasons beyond his control. He can also challenge Ext.P3 order to the extent it re-arranges the work at his risk and cost. In such circumstances I find no grounds to entertain the challenge to Ext.P3

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The writ petition fails and is accordingly dismissed without prejudice to the right of the petitioner to move the competent civil court seeking redressal of his grievances.

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P.N.RAVINDRAN, Judge.

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ahg.

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P.N.RAVINDRAN, J.

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W.P.(C).No.3397 of 2014

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JUDGMENT

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14^th February, 2014

Asok Kumar v. Superintending Engineer

Case brief

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Asok Kumar v. Superintending Engineer

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