Partly allowed

M/S.Southern Tech Engineering Contractor v. State of Kerala

Kerala HC18 Aug 2016WP(C)/14949/2006

Case brief

AI extract

What is this about?

In this writ petition regarding work contract rates, the Court observed that delays in site handover and non-attrinable to the contractor justified a rate revision claim despite supplementary agreements. The Government was directed to reconsider the claim following a prior judgment.

What did the court decide?

Ext.P9 order set aside; Government directed to reconsider petitioner's claim for rate revision within three months.

M/S.Southern Tech Engineering Contractor Vs State of… — Specific Performance | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938

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WP(C).No. 14949 of 2006 (D)

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PETITIONER :

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M/S. SOUTHERN TECH ENGINEERING CONTRACTORS, VALLAMATTAM BUILDINGS, PANDAPPILLY P.O, MUVATTUPUZHA-686 672, REPRESENTED BY ITS MANAGING PARTNER TOMY VALLAMATTAM.

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BY ADVS.SRI.MURALI PURUSHOTHAMAN

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SRI.P.M.BENZIR SRI.DEEPU LAL MOHAN

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,

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WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE CHIEF ENGINEER, IRRIGATION DEPARTMENT, PROJECT II,

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THIRUVANANTHAPURAM.

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3. THE SUPERINTENDING ENGINEER, PROJECT CIRCLE, MUVATTUPUZHA.

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BY SR GOVERNMENT PLEADER SRI.SANTHOSH PETER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.14949/2006

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE MEMO OF WORK ISSUED BY THE 3RD RESPONDENT DATED NIL.

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P2 COPY OF THE ACKNOWLEDGMENT FORM OF HANDING OVER THE SITE DATED 24/09/1999 ISSUED BY THE ASSISTANT ENGINEER, MVIP TO THE PETITIONER.

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P3 COPY OF THE LETTER DATED 15/10/2001 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

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P4 COPY OF THE EXT.P4 REPRESENTATION DATED 06/01/2005 PRODUCED BY THE PETITIONER IN WP(C).NO.3311/2005.

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P5 COPY OF THE JUDGMENT DATED 15/10/2005 OF THIS HON'BLE COURT IN WP (C).NO.3311/2005

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P6 COPY OF THE JUDGMENT DATED 20/12/2005 OF THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NO.2458/2005.

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P7 COPY OF THE ARGUMENT NOTE DATED 04/02/2006 SUBMITTED BEFORE THE 1ST RESPONDENT

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P8 COPY OF THE JUDGMENT DATED 3/04/2002 OF THIS HON'BLE COURT IN O.P.NO.5937/01.

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P9 COPY OF THE G.O(RT) NO.332/2006/WRD DATED 09/03/2006 ISSUED BY THE 1ST RESPONDENT

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.A.TO JUDGE

sts

P.V.ASHA, J.

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W.P.(C) No.14949 of 2006

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--------------------------------------------- Dated this the 18^th day of August, 2016

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J U D G M E N T

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The petitioner is a contractor who was awarded the

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work of construction of “MVIP-LBMC Constructing Palakuzha Distributory from Ch. Om. to 1870m. including

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cut and cover and CD works”, on the basis of tender floated by Government in the year 1995. The work was awarded at 70% above the estimate rates of 1992 schedule of PWD rates. Petitioner submits that even though an agreement was executed in respect of the contract on 16.05.1996, the site was handed over to the petitioner only on 24.09.1999. As per the terms of agreement it was to be handed over within a period of two months. It is further stated that even after the site was handed over the respondents did not take steps for recording initial level till 28.01.2000. Since the 12 month's period prescribed in the agreement for completion of work was already over, petitioner requested

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W.P.(C) No.14949 of 2006

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for extension of time and extension was granted till the completion of work after executing supplementary agreements. Thereafter petitioner completed the work on 13.03.2004. In the meanwhile the PWD schedule of rates underwent revision twice i.e., in 1995 and 1999.

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Therefore, on completion of work the petitioner requested for revision of rates submitting Ext.P4 representation on 06.01.2005. Thereafter he approached this Court and this Court dismissed the writ petition as per Ext.P5 judgment dated 15.10.2005 observing that the remedy of the petitioner lies before the civil court. In the Writ Appeal filed by the petitioner, this Court by Ext.P6 judgment dated 20.12.2005, directed the Government to take appropriate decision on his representation. Thereafter the petitioner was afforded an opportunity of hearing and the Government passed Ext.P9 order, rejecting his representation. Government found that since the petitioner had executed supplementary agreement in which there was a specific condition that there will not be any revision of rates, Government was not bound to

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W.P.(C) No.14949 of 2006

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enhance the rates. It is further stated that the petitioner could have withdrawn from the work in case he was not amenable for the rate at which the work was awarded. However, it is mentioned in Ext.P9 order that the land was handed over to the petitioner only after more than 3 years. The contention of the Government for rejecting the request is that the agreement was already concluded and therefore it was not necessary for the Government to enhance the rates since the petitioner had accepted the terms and conditions in the supplementary agreements executed by him, based on which, alone extension of time for completion was given. It is further stated that he had also delayed the work considerably after the commencement and therefore there was no reason for revision of rates.

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The petitioner relies on Ext.P8 judgment dated 03.04.2002 of this court in O.P.No.5937 of 2001, in which a contractor had claimed enhancement of rates under similar circumstances and this Court in Paragraph 7 of the judgment observed as follows:

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W.P.(C) No.14949 of 2006

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“....By the time Contract was signed, after herculian efforts, the PWD rates stood revised and the Government could not have adopted a technical stand that the effect of 1996 revision could not have been applicable to the petitioner when the facts of the case were dispassionately examined. As the work had started only in 1999, and as delay was not due to any reasons attributable to the petitioner, it was not possible to take a stand that 1999 revision also could not have come his help. May be the change of rates may not automatically be applicable to concluded contracts, but the cases and facts thereof differed from one another. Fairness demanded that both parties played at the same levels, and nobody got an unfair advantage. For the reasons also, rejection of the petitioner's claim does not appear to be valid or proper.”

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Respondents have filed a counter affidavit in tune with Ext.P9 order.

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Learned Government Pleader also argued supporting Ext.P8 contenting that once the petitioner entered into the supplementary agreements agreeing for the rates which was specified in the original agreement, petitioner cannot be permitted to seek any further revision of rates. It was also pointed out that there was delay in completion of the work, even though, there was delay on the part of the respondents in handing over the site. It is the case of the Government that petitioner could

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W.P.(C) No.14949 of 2006

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have withdrawn from the work.

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Heard the learned counsel for the petitioner and the learned Government Pleader.

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It is an admitted fact that there had been revision of rates in PWD schedule of rates in the years 1996 and in 1999 i.e., even before the site was handed over to the petitioner on 24.09.1999. The tender was invited in the year 1995 and agreement was executed with the schedule of rates PWD which prevailed in the 1992, of course 70% above the 1992 rates. Even though, it is stated that there was delay in completion of work for which the respondents granted extension, it is an admitted fact that the petitioner could commence his work only in the year 2000 i.e., after more than 3½ years of the date of execution of the agreement by which time there was considerable enhancement in the schedule of rates. In the light of Ext.P8 judgment of this Court, I am of the view that the Government has to re-consider the claim of the petitioner in tune with the observations made therein.

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W.P.(C) No.14949 of 2006

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Under the above circumstances, I set aside Ext.P9 order and direct the Government to re-consider Ext.P4 representation in the light of the aforesaid observations made in Ext.P8 judgment after affording an opportunity of hearing to the petitioner and pass orders within a period of 'three months' from the date of receipt of copy of this judgment.

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Writ petition is disposed of as above.

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Sd/- P.V.ASHA, JUDGE.

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M/S.Southern Tech Engineering Contractor v. State of Kerala

Case brief

What is this about?

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M/S.Southern Tech Engineering Contractor v. State of Kerala

Case brief

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