Dismissed

Joji Joseph, v. the Superintending Engineer

Kerala HC11 Jun 2019WP(C)/5779/2019

Case brief

AI extract

What is this about?

Contractor sought writ to substitute site handing-over date to claim 1% time-bonus. Court held no provision exists for such substitution. Petitioner allowed two weeks to apply for time extension; incentive question left open for separate proceedings. Disposal order only.

What did the court decide?

Court permitted petitioner to submit application for extension of time within two weeks; question of 1% incentive left open.

Joji Joseph, Vs the Superintending Engineer — Pension and Retirement Benefits | Kerala HC (2019)

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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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TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941

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WP(C).No. 5779 of 2019

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PETITIONER/S:

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JOJI JOSEPH, GOVERNMENT CONTRACTOR, PUTHUSSERY HOUSE, KANJOOR P.O, VIA KALADY 683575.

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BY ADVS. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN

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RESPONDENT/S:

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1 THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT, BUILDINGS CENTRAL CIRCLE, THRISSUR 680 001.

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2 THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, BUILDINGS DIVISION, THRISSUR 680 001.

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3 THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, BUILDINGS SUB DIVISION, THRISSUR 680 001.

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4 THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, BUILDINGS SECTION, THRISSUR 680 001.

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5 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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R1 TO R5 BY SR.GP SRI. B VINOD,

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5779 of 2019 2

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JUDGMENT

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Petitioner is a contractor registered with the

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State Government. Petitioner has entered into Ext.P1 agreement for construction on 24.05.2016. A period of two years was fixed for completion of the work from the date of handing over the site.

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According to the petitioner, as per Ext.P2 it is evident that, the site was handed over only on 09.09.2016. Therefore, the period expires on 08.09.2018. However, in the interregnum, revised estimate was prepared for extra items on 20.08.2017 and accordingly, Ext.P5 supplementary agreement was executed on 08.12.2017, and the work was commenced again on 11.12.2017.

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Case projected by the petitioner is that, in view of the delay, Ext.P7 application was submitted seeking to substitute the date of handing over of site from 09.09.2016 to 11.12.2017, which was rejected as per Ext.P8 on the ground that, there is no provision to undertake such an exercise in the PWD manual. Thereupon, petitioner was served with Ext.P10, directing the petitioner to submit an application seeking extension of time. Case projected by the petitioner is that, petitioner has sought for

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WP(C).No. 5779 of 2019 3

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substituting the date of handing over the site, since, in accordance with the provisions of the PWD manual, petitioner is entitled to get 1% incentive if the work is completed within the time fixed under the contract.

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A detailed statement is filed by the 1^st

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respondent, refuting the allegations and claims and demands raised by the petitioner. It is also submitted there under that, there is no provision under the PWD manual or elsewhere to substitute the date of handing over the site.

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A detailed reply statement is also filed,

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reiterating the stand adopted in the writ petition, and also stating that, since there was delay also on the part of the respondents and since, there are additional works for which Ext.P5 supplementary agreement is executed, petitioner is entitled as of right to get the date substituted.

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I have considered the rival submissions made

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across the Bar and perused the pleadings and the documents on record.

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Learned Counsel for the petitioner advanced contentions in accordance with the contentions put forth in the writ petition and the reply affidavit.

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Learned Government Pleader has also addressed

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WP(C).No. 5779 of 2019 4

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the arguments in terms of the statement filed, however

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fact remains, there is no provision at all in the PWD

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manual or elsewhere to substitute the date of handing over of the site. In my considered view, even

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according to the petitioner, the site was handed over on 09.09.2016, evident from Ext.P2. It thus means, actually petitioner came in possession of the site on and with effect from the said date, which date cannot be substituted, especially when there is no provision under any law or PWD manual.

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Therefore, if the petitioner wants extension of

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time, petitioner necessarily has to file suitable application before the respective statutory

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authorities, seeking extension of time. There is no case for the petitioner that, petitioner has filed any such application.

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Having evaluated the situation, I think it is only appropriate that, petitioner is permitted to submit suitable application before the 1^st respondent within two weeks from the date of receipt of a copy of this judgment seeking extension of time, which if received by the 1^st respondent, shall be considered and finalized within three weeks thereafter. The question raised by the petitioner with respect to 1% incentive

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WP(C).No. 5779 of 2019 5

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is left open to be adjudicated in a properly

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constituted proceedings at a later point of time.

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The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY

JUDGE

uu 11.06.2019

WP(C).No. 5779 of 2019 6

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	THE PHOTOCOPY OF THE RELEVANT PAGES OF THE AGREEMENT NO. 6/2016-17/SE/BCC/TSR DATED 24-05-2016 ENTERED INTO BY THE PETITIONER WITH THE 1ST RESPONDENT
EXHIBIT P2	THE PHOTOCOPY OF ACKNOWLEDGEMENT FORM OF HANDING OVER SITE TO CONTRACTOR DATED 09-09-2016 IN RESPECT OF THE SUBJECT WORK.
EXHIBIT P3	THE PHOTOCOPY OF THE LETTER NO.D 2- 611/2016 DATED 09-05-2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P4	THE PHOTOCOPY OF THE LETTER DATED 17- 05-2017 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P5	THE PHOTOCOPY OF SUPPLEMENTARY AGREEMENT NO. 1 DATED 08-12-2017 ENTERED INTO BY THE PETITIONER WITH THE 1ST RESPONDENT.
EXHIBIT P6	THE PHOTOCOPY OF THE LETTER NO. T1- 141/2014-15 DATED 03-09-2018 OF THE 4TH RESPONDENT TO THE PETITIONER.
EXHIBIT P7	THE PHOTOCOPY OF LETTER DATED 08-09- 2018 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P8	THE PHOTOCOPY OF LETTER NO. D8-126/14 DATED 21-11-2018 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT
EXHIBIT P9	THE PHOTOCOPY OF REPRESENTATION DATED 26-12-2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT
EXHIBIT P10	THE PHOTOCOPY OF LETTER NO. D8-126/4 DATED 18-01-2019 TO THE PETITIONER BY THE 1ST RESPONDENT.
EXHIBIT P11 EXHIBIT P12	THE PHOTOCOPY OF LETTER DATED 23-01- 2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. THE PHOTOCOPY OF THE LETTER DATED NIL

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WP(C).No. 5779 of 2019 7

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SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXHIBIT P13 THE PHOTOCOPY OF THE PROOF OF DELIVERY OF EXT. P12 TO THE 1ST RESPONDENT DATED 24-01-2019 ISSUED BY THE SPEED POST. EXHIBIT P14 THE PHOTOCOPY OF LETTER DATED 05.12.2016 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P15 THE PHOTOCOPY OF LETTER DATED 08.12.2016 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

Joji Joseph, v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

Joji Joseph, v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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