Dismissed

C.v.Varghese v. the Executive Engineer

Kerala HC14 Oct 2019WP(C)/7738/2019

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition filed by a government contractor seeking release of unpaid maintenance amounts. The Court held that where satisfactory execution of work is denied by the awarder/respondent, the contractor cannot invoke Article 226 jurisdiction to release amounts, leaving alternative remedies open.

What did the court decide?

None. The petition was dismissed without prejudice to alternative remedies.

C.v.Varghese Vs the Executive Engineer — Contract and Commercial Disputes | 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 P.B.SURESH KUMAR

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MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941

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WP(C).No.7738 OF 2019(N)

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PETITIONER:

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C.V.VARGHESE AGED 64 YEARS S/O. VARKEY, CHENNAKKATTU HOUSE, PERINGOL KARA, KOLENCHERY P.O., ERNAKULAM DISTRICT 682 311.

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BY ADV. SRI.P.P.RAJESH

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RESPONDENTS:

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1 THE EXECUTIVE ENGINEER MINOR IRRIGATION DIVISION, DEPARTMENT OF IRRIGATION, COLLECTORATE, KAKKANADU, ERNAKULAM 682 030.

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2 THE ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION SUB DIVISION, THOTTAKKATTTUKARA P.O., ALUVA 683 108.

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3 THE ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, PATTIMATTOM 683 562.

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R2 BY GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 2009-2019, THE COURT ON 14-10-2019 DELIVERED THE FOLLOWING:

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WP(C).No.7738 OF 2019(N)

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W.P.(C) No.7738 of 2019

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J U D G M E N T

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The petitioner is a contractor who has executed a maintenance work for the Irrigation Department of the State Government. The case of the petitioner is that though he has executed the work entrusted to him satisfactorily, the payments due in respect of the same have not been effected.

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2. An affidavit has been filed by the second respondent in this matter. Paragraphs 2 and 3 of the affidavit read thus:

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“2. The petitioner was awarded the work of “Annual maintenance of Karukappilly Aikkarandu LIS under M.I. Section, Pattimottom for 2017-18 including cleaning suction pit and Canal”. The petitioner produce Exhibit P4 Completion Certificate for the work issued by the Assistant Executive Engineer Minor Irrigations and counter signed by the Assistant Executive Engineer. Exhibit P4 which was given along with that certificates that the work was completed. The total amount of work entrusted was 3,74,890/-. He admit the estimate of the work was Rs.4,70,000/-. The work completed as only to the tune of 1,55,118.40/- as is evidenced from the second page of Exhibit P4 which is an Annexure given along with the Completion Certificate. The Exhibit P4 is a proposal for Completion Certificate. The Completion Certificate is issued by the agreement authority, in this case the Executive Engineer. The proposal for completion, as mentioned in Exhibit P4, is only for to the tune of Rs.1,55,118.40. Evidently the proposal for Completion

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WP(C).No.7738 OF 2019(N)

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Certificate is a formality for raising bill to the extent of work completed. It does not mean that the entire work was completed.

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3. As per the agreement the contractor had to remove earth from the canal up to the bed level by excavation and depositing it up to a distance of 50m from the spot. Instead, the contractor did not excavate earth up to bed level but excavated only upto a few centimeters of top silt and the same was deposited on the banks of the canal thereby causing obstruction to pedestrians who used the canal bund for their movement. Moreover, the possibility of such silt washing into the canal is also high. Even, the above work was not carried out for the full length of the canal as per the Pre measurements taken for the work. Many local public including people's representative including President of Poothrika Grama Panchayat, President of Karukappilly LIS Karshaka samiti, Ward Member of concerned ward of Grama Panchayat filed their complaints in writing to the Assistant engineer regarding non-compliance of specification by the contractor and improper nature of carrying out work. True copy of the letter dated 08.12.2017 of President Karukappilly LIS Karshaka samiti is produced herewith and marked as Annexure R2(a) . True copy of the letter dated 02.1.2018 of Smt.Sali Baby, Ward Member, Poothrika Grama Panchayat is produced herewith and and marked as Annexure R2(b) . True copy of the letter dated 07.04.2018 of President Poothrika Grama Panchayat is produced herewith and and marked as Annexure R2(c) . The petitioner was given registered notice by the Assistant Engineer. Pre measurement of the work at site was not accepted by the petitioner. But the petitioner went on with the work which implies that he had accepted the pre - measurements.”

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The extracted paragraphs in the affidavit filed on behalf of the second respondent indicate beyond doubt that the respondents do not admit the case of the petitioner that he has executed the work referred to in the writ petition satisfactorily. In a case of this nature where the

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WP(C).No.7738 OF 2019(N)

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satisfactory execution of the work is denied by the awarder of the work, I do not think that the petitioner is entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution for release of the amounts allegedly due in respect of the work.

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In the circumstances, the writ petition is dismissed without prejudice to the right of the petitioner to invoke the alternative remedies available to him for redressal of the grievances voiced in the writ petition.

Sd/-

P.B.SURESH KUMAR

JUDGE

WP(C).No.7738 OF 2019(N)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE DETAILED ESTIMATE FOR THE WORK OF ANNUAL MAINTENANCE OF KARUKAPPILLY AIKKARANADU LI SCHEME UNDER M.I. SECTION, PATTIMATTOM FOR 2017/18 INCLUDING CLEANING OF SUCTION PIT AND CANAL.

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EXHIBIT P2	TRUE COPY OF THE AGREEMENT NO. 59/EE/MIDVN/EKM/2017-18 DATED 25/11/17
EXHIBIT P3	TRUE COPY OF THE COMMUNICATION DATED 27/6/2018 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE COMPLETION CERTIFICATE SIGNED BY THE 2ND AND 3RD RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE REQUEST DATED 5/7/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P6	A TRUE COPY OF THE LETTER DATED 03-01-2018 ISSUED TO PETITIONER BY 3RD RESPONDENT

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EXHIBIT P7 A TRUE COPY OF THE APPLICATION UNDER R T I ACT DATED 03-09-2018 SUBMITTED BEFORE 3RD RESPONDENT BY THE PETITIONER.

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RESPONDENTS' EXHIBITS:

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ANNEXURE R2(A) TRUE COPY OF THE LETTER DATED 08-12-2017 ANNEXURE R2(B) TRUE COPY OF THE LETTER DATED 02-01-2018 ANNEXURE R2(C) TRUE COPY OF THE LETTER DATED 07-04-2018

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//TRUE COPY// PA TO JUDGE

C.v.Varghese v. the Executive Engineer

Case brief

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C.v.Varghese v. the Executive Engineer

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