Allowed

Rojer Mathew v. the Kerala State Construction Corporation Limited

Kerala HC10 Mar 2017WP(C)/370/2017

Case brief

AI extract

What is this about?

Petitioner, a PWD Contractor, sought directions regarding unfulfilled agreement for bridge construction and outstanding payment enhancement. Court directed State to finalize rate enhancement request within one month and release dues within two months of decision.

What did the court decide?

Direction to 4th respondent to achieve finality on rate enhancement request within one month; directed respondent to release amounts due to petitioner within two months of Government's decision.

Rojer Mathew Vs the Kerala State… — Contract and Commercial Disputes | Kerala HC (2017)

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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 SHAJI P.CHALY

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FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938

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WP(C).No. 370 of 2017 (U)

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PETITIONER(S):

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ROJER MATHEW& CO

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G-203, PURAPPADATHIL, PANAMPILLY NAGAR, KOCHI-36, ERNAKULAM, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, ROJER MATHEW.

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BY ADVS.SRI.PHILIP J.VETTICKATTU

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SRI.VINEETH KURIAKOSE

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RESPONDENT(S):

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1. THE KERALA STATE CONSTRUCTION CORPORATION LIMITED (GOVERNMENT OF KERALA UNDERTAKING), DOOR NO.30/1521-A, BAY UNDER THE BRIDGE, NORTHERN SIDE OF RAILWAY, PONNURUNNY, VYTTILA-682 019, REPRESENTED BY THE GENERAL MANAGER.

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2. THE GENERAL MANAGER THE KERALA STATE CONSTRUCTION CORPORATION LIMITED (GOVERNMENT OF KERALA UNDERTAKING) DOOR NO.30/1521-A, BAY UNDER THE BRIDGE, NORTHERN SIDE OF RAILWAY, PONNURUNNY, VYTTILA-682 019.

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3. THE SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES), CENTRAL ZONE, ALUVA - 683 101.

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4. STATE OF KERALA REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.

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R3 & R4 BY SR. GOVERNMENT PLEADER SMT.K.R.DEEPA R1 & R2 BY SRI.M.V.THAMBAN, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 370 of 2017 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1	TRUE COPY OF THE PROCEEDINGS OF THE KERALA STATE CONSTRUCTION CORPORATION LTD. DATED 19.1.2012
P2	TRUE COPY OF THE RELEVANT PAGES OF THE AGREEMENT BEARING NO.CC/GM/CA/213/2011-2012, DT. 4.2.2012
P3	TRUE COPY OF THE LETTER DT.14.3.2014 REQUESTING TO RELIEVE THE PETITIONER FROM THE WORK BY SETTLING THE BILLS WITHOUT RISK AND COST
P4	TRUE COPY OF THE LETTER DATED 27.7.2014 ISSUED BY THE PETITIONER
P5	TRUE COPY OF THE LETTER DATED 20.8.2014 ISSUED BY THE PETITIONER
P6	TRUE COPY OF THE LETTER ISSUED BY THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT (BRIDGES)
P7	TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 9.9.2015
P8	TRUE COPY OF THE LETTER 9.9.2015 THE PETITIONER HEREIN WAS ISSUED WITH A LETTER BY THE ASSISTANT PROJECT ENGINEER, KERALA STATE CONSTRUCTION CORPORATION, ERNAKULAM REGION.
P9	TRUE COPY OF THE LETTER DATED 12.9.2015 ISSUED BY THE PETITIONER TO THE ASSISTANT PROJECT ENGINEER
P10	TRUE COPY OF THE LETTER DATED 1.10.2015 ISSUED BY THE 1ST RESPONDENT
P11	TRUE COPY OF THE LETTER DATED 3.11.2015 ISSUED BY THE 1ST RESPONDENT DIRECTING THE PETITIONER TO SUBMIT APPLICATION FOR EXTENSION OF TIME TO COMPETE THE WORK
P12	TRUE COPY OF THE LETTER DATED 5.12.2015 ISSUED BY THE REGIONAL MANAGER, KERALA STATE CONSTRUCTION CORPORATION.
P13	TRUE COPY OF THE REPRESENTATION DATED 9.8.2016 SUBMITTED BY THE PETITIONER BEFORE THE GENERAL MANAGER, KERALA STATE CONSTRUCTION CORPORATION
P14	TRUE COPY OF THE LETTER DATED 23.9.2016 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT

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WP(C).No. 370 of 2017 (U)

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P15 COPY OF PHOTOSTAT OF LETTER DATED 14.3.2014 ISSUED FROM THE OFFICE OF THE IST RESPONDENT TO THE EXECUTIVE ENGINEER, ROADS AND BRIDGES DIVISION, KAKKANADU ERNAKULAM

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P16 COPY OF PHOTOSTAT COPY OF LETTER DATED 22.8.2014 ISSUED FROM THE OFFICE OF THE IST RESPONDENT

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RESPONDENT(S)' EXHIBITS: NIL -----------------------

//TRUE COPY//

P.A. TO JUDGE

dlk

SHAJI P. CHALY, J.

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W.P.(C) No.370 of 2017

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Dated this the 10^th day of March, 2017

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JUDGMENT

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Petitioner is a PWD Contractor, who is awarded with a work order by the first respondent for construction of a bridge and its approach roads namely Muttathankadavu bridge across Konathupuzha river connecting Amballoor and Udayamperoor panchayaths. Since the respondents did not make available hindrance free land for the purpose of construction of approach on either sides to the bridge, the petitioner had to commence with the construction of the bridge belatedly. The construction of the bridge proper and a small portion of the approach road were completed within the stipulated time. In view of the hindrance free land for the construction of the approach roads on either sides petitioner could not continue with the construction. The lands were not made available by the respondents in spite of their various requests. However, the second respondent handed over land for construction of approach roads for one side of the bridge namely Thrippunithura side on 26.8.2015. According to the petitioner, such handing over has taken place after the expiry of

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W.P.(C) No.370 of 2017

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more than 40 months, from the date of execution of the agreement on 4.2.2012. The respondents have convened a meeting at the instance of the then Minister for Civil Supplies and assured that a tender excess of 65% above the original PAC rate would be granted. Various contentions are raised by the petitioner in this writ petition. According to the petitioner, petitioner has expended more than Rs.1,00,00,000/- from his pocket for completing the work. It is in this background seeking appropriate directions, this writ petition is filed.

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Third respondent has filed a counter affidavit and among other contention it is stated in paragraph 8 as follows:“

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xxxxxxxx

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After this meeting, the 1^st respondent has requested the 3^rd respondent to sanction an escalated rate of 65% in order to carry out the balance work vide letter dated 01.10.2015. Hence an estimate for the balance work was prepared based on the schedule of rates which was in force at the time (DSR 2014 with a cost index of 0.4476). It was found that the overall cost for the balance work would be 57.51%

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W.P.(C) No.370 of 2017

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higher than the cost with agreed rates. This was submitted for the consideration of Government on 03.11.2015. Subsequent to this, CTE has inspected the site. Later, some directions were issued by the Government secretary to modify the proposal vide letter dated 09.05.2016. The modified proposal was submitted to the Government on 18.9.2016 and the decision is still pending.”

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On a reading of paragraph 8 it is categoric and clear that, a DSR rate of 57.51% higher than the cost of the agreed rates is suggested, which is pending consideration before the Government. A finality is not attained so far. Therefore, I think it is only appropriate that a direction is issued to the 4^th respondent to attain finality to the enhanced rate sought for by the petitioner at 65% and in respect of the suggestion made, evident from paragraph 8 of the counter affidavit at 57.51% higher than the agreed rates.

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Therefore, there will be a direction to the 4^th respondent to achieve finality to the request made by the petitioner for enhancement of the rate, within a month from the date of receipt of a copy of this judgment.

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W.P.(C) No.370 of 2017

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Needless to say, if amounts are found due to the petitioner, the same shall be released without any further delay, and at any rate, within two months from the date of said decision taken by the Government.

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Writ petition is disposed of accordingly.

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Sd/-

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SHAJI P. CHALY, JUDGE

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dlk/10/3/

Rojer Mathew v. the Kerala State Construction Corporation Limited

Case brief

What is this about?

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Rojer Mathew v. the Kerala State Construction Corporation Limited

Case brief

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