This writ appeal by the State was dismissed against a direction for payment of amounts at revised rates for canal work done by a government contractor after the original completion period, based on the High Level Committee recommendation and evidence of revised design execution.
The writ appeal is dismissed; no costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937
WA.No. 1306 of 2013 () IN WP(C).13532/2008
AGAINST THE JUDGMENT IN WP(C) 13532/2008 DATED 25-06-2013
APPELLANTS:
BY SENIOR GOVERNMENT PLEADER SRI. JOE KALLIATH
RESPONDENT:
PAILY PILLAI PERUMPILLIL BUILDINGS, KOLENCHERRY, 682 311 A PARTNERSHIP FIRM REGISTERED UNDER INDIAN PARTNERSHIP ACT REPRESENTED BY ITS MANAGING PARTNER MR.BIJU PAUL.
BY ADV. SRI.ANIL D. NAIR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-01-2016, THE COURT ON 11-02-2016 DELIVERED THE FOLLOWING:
THOTTATHIL B.RADHAKRISHNAN & ANU SIVARAMAN, JJ.
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W.A.No.1306 of 2013
= = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 11th day of February, 2016
JUDGMENT
Anu Sivaraman,J.
1.This appeal is preferred by the State and its officers in the Department of Irrigation against the judgment of the learned single Judge directing payment of amounts at revised rates for the work done as per the revised design by the respondent who was a Government contractor. The work in question was with regard to two sets of canals from Ch.600 metres to 1000 metres and Ch.1000 metres to 1350 metres of the Idamalayar Project. Agreement dated 10.02.1990 were entered into between the parties with specified period of 36 months for completion of the project. The rates agreed were on the basis of 1990 PWD schedule of rates.
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period of completion of work was extended to 31.7.1995. By Exhibit P5 order, the Government accepted the recommendation of High Power Committee recommending to carry out the balance work as per the revised design and for removing extra earth on canal alignment through the same agency at 80% above the 1992 schedule of rates, after expiry of the time of completion. The 1st respondent contends that the work had been carried out by him according to the revised design and the fact had been verified by the competent among the respondents including by Exhibits P8, P19 and P20 communications issued by the Superintending Engineers on site to the Chief Engineer. It is stated that the actual carrying out of the work by the respondents in accordance with the revised design on the same chainage was specifically spoken to in the communications referred to above. The contention raised by the appellants that no additional work had been done in accordance with the revised design was examined by the learned single Judge with reference to the reports submitted by an independent agency entrusted with verification of the
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work and submitting a report by this Court as also with regard to the measurement books as well as the records of the appellants in the instant case. The learned single Judge came to the considered conclusion that going by the materials produced, the writ petitioner had actually carried out considerable work in accordance with the revised design and that he was therefore entitled to payment at the revised and enhanced rates for the work done after 31.07.1995. This appeal is preferred against the judgment on the ground that there were disputed questions of fact which should not have been decided in writ jurisdiction.
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against the appellants. It is further contended that the extra work had to be carried out by the government at further cost on the same stretch and therefore the contractor is not entitled to payments as sought for by him.
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“The Committee considered in detail the rate to be allowed in this case. The Committee noted that due to the hike in prices and cost of materials and labour and due to the high risk of men and money in carrying out work in the earth slipping terrain the rate may go very high if the work is retendered. The High Level Committee
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therefore recommended to Government for carrying out the balance work as per the revised design and for removing this extra earth on canal alignment through the same agency @ 80% (eighty percent) above the 1992 schedule of rates (the excess over 1990 schedule of rate and further enhancement of rate will cease to exist from the date of implementation of the new rate) after the expiry of the time of completion.”
8.The learned single Judge, on an appreciation of the material placed before him, came to the definite conclusion that the date from which the revised rates were to be effective was 31.7.1995. This is sought to be assailed by the appellants on the ground that by Exhibit P5(a) supplemental agreement, the time for completion was further extended till 31.05.1997 and that the revised rates would therefore be applicable only from 31.05.1997. However, a plain reading of Exhibit P5(a) would make it clear that the extension agreed upon was on the specific understanding that the contractor shall not claim enhanced rate over and above the rates sanctioned by Exhibit P5. The only logical conclusion therefore would be that for the period from 31.07.1995, the appellants were also agreed that the contractor would be
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entitled to the rates specified in Exhibit P5. That the High Power Committee had recommended the enhancement only in its meeting held on 12.1.1996 and that the order of the Government was dated 08.03.1996 would not make any difference in the date of entitlement of the contractor for the revised rates in view of the facts of this case which had been examined in extenso by the learned single Judge. It is pertinent to note that Exhibits P3 and P4 would clearly indicate that the contractor had been claiming further enhancement of rates even while continuing work at partially modified rates. It was his repeated requests on the point which had culminated in Exhibit P5 order of enhancement.
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works according to the contract. The reasoning of the learned single Judge in arriving at the conclusion in the impugned judgment cannot be faulted in the facts and circumstances of the instant case.
The writ appeal fails and it is accordingly dismissed. No costs.
sd/-
Thottathil B. Radhakrishnan, Judge sd/- Anu Sivaraman, Judge
TRUE COPY
P.A.TO JUDGE
sj
3 issues framed by the court
Whether disputed questions of fact regarding the extent of work done and applicable rates preclude the writ jurisdiction for deciding the claim.
Whether the respondent contractor is entitled to payment at enhanced rates from the expiry of the original completion period.
Whether the appreciation of material regarding revised design and rate application warrants setting aside the learned single Judge's conclusion.
1 provisions across 1 enactments
The Secretary Irrigation Department, Government Secretariat Thiruvananthapuram & Anr.
Paily Pillai Perumpillil Buildings, Kolencherry
Thottathil B. Radhakrishnan
Anu Sivaraman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
