Allowed

M/S.Mary Matha Construction Company v. State of Kerala

Kerala HC3 Jun 2016WP(C)/18005/2016

Case brief

AI extract

What is this about?

The petitioner, a contractor, filed a writ petition seeking release of sanctioned payment withheld by the Irrigation Department due to a vigilance investigation and a dispute over material usage. The Court directed the respondents to disburse the approved amount within one month.

What did the court decide?

Respondents directed to disburse the amounts covered by Bill No.18779/2015-16 dated 28.02.2016 within one month.

M/S.Mary Matha Construction Company Vs State… — Public Procurement and Tenders | 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 MR. JUSTICE P.B.SURESH KUMAR

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MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938 WP(C).No. 18005 of 2016 (A)

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PETITIONER:

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M/S.MARY MATHA CONSTRUCTION COMPANY, MARY MATHA SQUARE, ARAKUZHA ROAD, MUVATTUPUZHA P.O.,ERNAKULAM DISTRICT, REPRESENTED BY ITS PARTNER SRI.SABU CHERIAN.

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BY ADVS.SRI.BECHU KURIAN THOMAS (SR.) SRI.P.SHANES METHAR

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RESPONDENTS:

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STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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SUPERINTENDING ENGINEER, IRRIGATION CENTRAL CIRCLE, THRISSUR, PIN-680 001.

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CHIEF ENGINEER (I & A), DEPARTMENT OF IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM-695 001.

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EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, ERNAKULAM P.O., KAKKANAD, PIN-682 030.

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BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX IN WP(C).No. 18005 of 2016 (A)

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PETITIONER'S EXHIBITS:

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EXT. P1 TRUE COPY OF THE TENDER NOTICE DATED 18.1.2012 ISSUED BY THE 2ND RESPONDENT

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EXT. P2 TRUE COPY OF THE LETTER OF ACCEPTANCE OF TENDER DATED 14.6.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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EXT. P3 TRUE COPY OF THE AGREEMENT DATED 9.7.2012 EXECUTED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT THE SCHEDULE OF CIVIL AND MECHANICAL WORKS ATTACHED TO THE AGREEMENT.

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EXT. P4 TRUE COPY OF THE ORDER DATED 24.4.2014 SANCTIONING THE REVISED ESTIMATE.

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EXT. P5 TRUE COPY OF THE LETTER DATED 17.04.2013 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

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EXT. P6 TRUE COPY OF THE LETTER ISSUED BY THE ADDL. CHIEF SECRETARY TO THE 2ND RESPONDENT

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EXT. P7 TRUE COPY OF THE LETTER DATED 31.01.2016 NO.17322/M.P.1/ 2015/WRD ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT

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EXT. P8 TRUE COPY OF THE ORDER DATED 23.3.2016 IN WPC 9730/2016

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EXT. P8(a) TRUE COPY OF THE JUDGMENT DATED 8.4.2016 IN W.A.812/2016

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EXT. P9 TRUE COPY OF THE ORDER DATED 11.5.2016 NO.GO(RT)4209/16/FIN. EXT P9(a) TRUE COPY OF THE BILL SCHEDULED DETAILS FOR THE PERIOD 1.2.2016 TO 29.2.2016 {RIDF (NABARD)}.

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EXT. P10 TRUE COPY OF THE ORDER DATED 10.5.2016 NO.G.O(RT) 4196/16/FIN.

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RESPONDENT'S EXHIBITS: NIL.

/TRUE COPY/

P.S. TO JUDGE

P.B.Suresh Kumar, J.

W.P.(C)No.18005 of 2016 A

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Dated this the 3^rd day of June, 2016

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JUDGMENT

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The petitioner is the contractor executing the work of a Regulator-cum-Bridge for the Irrigation Department of the State Government. The work is in progress. At the instance of the petitioner, a part bill was raised by the department in respect of the portion of the work executed by the petitioner. The said bill was raised on 28.02.2016. Exhibit P9 indicates that the Government accorded sanction for payment of the amount covered by the said bill. The grievance of the petitioner in this writ petition is that even after the Government had accorded sanction for payment of the amount covered by the said part bill, the amounts are not being disbursed by the department

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WPC18005/16

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on the ground that there is a vigilance investigation concerning the execution of the work.

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Heard the learned Senior Counsel for the petitioner as also the learned Government Pleader.

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The learned Senior Counsel for the petitioner pointed out at the outset that further proceedings pursuant to the said vigilance investigation is stayed by this Court in Crl.M.C.No.2287 of 2016. It was also pointed out by the learned Senior Counsel that there was a dispute between the petitioner and the department concerning the non-use of MS liners while carrying out the piling work of the bridge and even before resolving the said dispute, the department has withheld the amount equivalent to the maximum amount which the department might be entitled to recover from the petitioner, if the dispute is resolved in their favour, from the amounts payable to the petitioner. According to

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WPC18005/16 3

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the learned Senior Counsel, a sum of Rs.6,95,85,236/- due to them from the department has been withheld for the said purpose. It was pointed out that the petitioner had challenged the aforesaid conduct of the department and a Division Bench of this Court, as per Exhibit P9(a) judgment, ordered release of the said amount on furnishing security. According to the learned Senior Counsel, there is absolutely no justification, in circumstances, for withholding any more amounts from the petitioner, especially when sanction has been accorded for payment by the Government.

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Learned Government Pleader confirmed that the amounts are not being disbursed on account of the pendency of the vigilance investigation.

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In the light of the submissions made by the

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learned counsel for the parties, I have called for and perused the records in Crl.M.C.No.2287 of 2016. The first

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WPC18005/16 4

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information report, on the basis of which the present vigilance investigation is going on indicates that the same relates to the non-use of MS liners for the piling work. Ext.P9(a) judgment of this Court indicates that the maximum amount which the department is entitled to recover from the petitioner, if the dispute relating to the non-use of MS liners is resolved ultimately in its favour has been withheld. As per the said judgment, this Court permitted the respondents to disburse even the said amount on furnishing security. In the said view of the matter, I do not find any justification for the department in withholding any more amounts on that ground. Further, in an identical situation, in W.A.No.729/2015, a Division Bench of this Court took the view that if no proceedings are initiated by the department for the alleged loss, if any, caused by the contractor, the proceeds of the bills cannot be withheld.

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WPC18005/16

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In the aforesaid facts and circumstances, the writ petition is disposed of directing the respondents to disburse the amounts covered by bill No.18779/2015-16 dated 28.02.2016 as approved for payment by the Government as per Ext.P9, within one month from today.

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P.B.Suresh Kumar, Judge

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tkv

M/S.Mary Matha Construction Company v. State of Kerala

Case brief

What is this about?

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M/S.Mary Matha Construction Company v. State of Kerala

Case brief

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