Dismissed

Anoop.P.D v. State of Kerala

Kerala HC3 Jun 2020WP(C)/2956/2017

Case brief

AI extract

What is this about?

A writ petition was filed seeking a writ of mandamus to direct respondents to ascertain excavated material quantities, constitute a body of experts for supervision, and form a special investigation team regarding alleged corruption in a road upgradation project. The court dismissed the petition finding the petitioner not entitled to such directions.

What did the court decide?

Petitioner not entitled to issuance of mandamus; writ petition dismissed.

Anoop.P.D Vs State of Kerala — Public Procurement and Tenders | Kerala HC (2020)

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W.P.(C).2956/2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942

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WP(C).No.2956 OF 2017(S)

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PETITIONER/S:

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ANOOP.P.D,

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S/O.P.R.DIVAKARAN NAIR, PAWAMPADATHIL HOUSE, KEZHUVAMKULAM P.O.,KOTTAYAM, PIN-686 584.

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BY ADV.SRI.GINESH.P.

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001.

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2 THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

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3 KERALA STATE TRANSPORT PROJECT (KSTP), REPRESENTED BY THE PROJECT DIRECTOR, TC-11/339, JAGAD BUILDING, KESTONE ROAD, NANTHANCODE, KOWDIAR.P.O., THIRUVANANTHAPURAM, PIN-695 003.

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4 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

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5 THE DISTRICT COLLECTOR, CIVIL STATION, KOTTAYAM, PIN-686 002.

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6 THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, KOTTAYAM. PIN-686 002.

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7 MS GHV INDIA P LTD. THROUGH ITS MANAGING DIRECTOR, 1ST FLOOR, INDUSTRIAL ESTATE, MAHAKALI CAVES ROAD,

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W.P.(C).2956/2017

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ANDHERI (EAST), MUMBAI. PIN-400 093.

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8 M/S.EKK & CO. THROUGH ITS MANAGING PARTNER, 2ND FLOOR, MUNICIPAL BUILDING, PERUMBAVOOR, ERNAKULAM, KERALA, PIN-683 542.

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9 GHV-EKK (JV), ENGINEERS AND CONTRACTORS, THROUGH ITS' MANAGING PARTNER,SECOND FLOOR, MUNICIPAL BUILDING, A.M.ROAD, PERUMBAVOOR, ERNAKULAM-683 542.

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R1-6 BY SRI.K.V.SOHAN, STATE ATTORNEY R7-9 BY ADV. SRI.P.THOMAS GEEVERGHESE R7-9 BY ADV. SRI.TONY THOMAS (INCHIPARAMBIL)

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OTHER PRESENT:

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SRI.K.V.SOHAN FOR R1 TO R6, SRI.P.THOMAS GEEVERGHESE FOR R7 TO R9

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).2956/2017

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JUDGMENT Dated this the 3^rd day of June, 2020

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S.Manikumar, CJ.

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Instant writ petition is filed with following prayers:

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(i) Issue a writ in the nature of mandamus or any other appropriate writ order or direction to the respondent No.1 to 3 to ascertain the quantity of the granite and soil excavated from the land acquired or availed for the purpose of the upgradation work of the road from Ponkunnam to Thodupuzha including Thodupuzha Bypass of SH-8 as awarded under the exhibit P1 contract and to ascertain the quantity of the excavated granite and soil used for the upgradation work of the road and to ascertain the quantity of the granite and soil remaining to be excavated.

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(ii) Issue a writ in the nature of mandamus or any other appropriate writ order or direction to the respondent No.1 to constitute a permanent body of experts from the areas of auditing, law, engineering and construction having knowledge in the construction of road, officers of land revenue and vigilance to evaluate and supervise road construction and upgradation works in Kerala.

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(iii) Issue a writ in the nature of mandamus or any other appropriate writ order or direction to respondent No.1 to constitute special investigation team to investigate into the corruptions in the upgradation work of the road from Ponkunnam to Thodupuzha including Thodupuzha Bypass of SH-8 as awarded under the exhibit P1 contract.

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The works of upgradation of the road from Ponkunnam to Thodupuzha

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including Thodupuzha Bypass of SH-8 was awarded to the 9^th respondent for an amount of Rs.227,13,73,548/- vide Ext.P1 contract. Excavation activities are conducted in a hill area and the granites, rocks and soil are huge quantities in the

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W.P.(C).2956/2017

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site. The quantity of the materials to be excavated from the site are not ascertained by the respondent No.2 or 3. It is submitted that after completing the works the quantity of the materials cannot be properly ascertained. This will cause huge financial loss for the state. Respondent No.3, K.S.T.P is entitled for the materials excavated from the site. These materials are used by respondent No.9 for the upgradation works of the road. Without ascertaining the quantity of the materials, granite and soil, the materials are used by the respondent No.9 for the works. The land near the road are unnecessarily excavated and huge quantity of granites and soil are collected illegally and used for reclaiming private properties in collusion with owners of the land. Hence with the prayers cited above, this writ petition is filed.

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Denying the allegations the 3^rd respondent filed a detailed counter affidavit, wherein it is stated as hereunder:

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“1. I am the Executive Engineer, KSTP Division, Ponkunnam. I am conversant with the facts of the above case as disclosed from the official records. I have been authorized to swear to this counter affidavit on behalf of the third respondent in the above Writ Petition. All the averments and allegations contained in the Writ petition are denied except those which are specifically admitted here-under.

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With respect to paragraph 1 this respondent has no knowledge. With respect to paragraph 2 & 3 the averment that the width of tarred portion of the road is 10mts, is correct as a general statement but it exceeds 10mts at some places where there are curves depending on the nature and lie of the road at some areas. 3. The averment in paragraph 4 is totally incorrect and baseless. The allegation that there occurred corruption in the execution of the work and the State incurred huge financial loss is baseless and denied. The further allegation that there occurred misuse of fund, excessive mining of granite and soil, unnecessary construction and unnecessary

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W.P.(C).2956/2017

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acquisition of land etc. are baseless and denied. The allegation that it caused damage to the environment and huge financial loss to the State is baseless. The further statement that even after the work of the road is completed in the area excavation in the area still continues illegally for the purpose of road is incorrect. No excavation is undertaken by this respondent or its contractors over and above the permitted area absolutely necessary for formation of road as per the plan profile and specifications. As part of the project while the road was formed some persons having property on the boundary lost their access and support to their structures, being part of the environmental mitigation plan which contemplates alleviation of the difficulties of project affected parties is also undertaken in those properties which belong to private parties. Apart from this activity which is also part of the project no other activity is being conducted. 4. With respect to the averment in paragraph 5 that the excessive excavation is done at Nellappara in Ramapuram Village is incorrect. At Nellappara area of Ramapuram Village the original road was steep hilly terrain with narrow formation, series of sharp dangerous, zig zag curves having deep valley on left side and hanging vertical rock verge of average height 10 mts on right side. Thus excavation and formation width of the road vary from place to place depending on the terrain. All acquisitions and formation are based on approved plan and specifications for 10mts tarred portion, shoulders/berms and drains.

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The statement in paragraphs 6 and 7 are incorrect and denied. The upgradation work of subject road Ponkunnam-Thodupuzha and Thodupuzha byepass of State Highway-8 is undertaken by the orders of the Government of Kerala with the World Bank aid. All the necessary permissions contemplated are provided in the agreement and the contractor undertook the work strictly as per the agreement. In fact, some private parties conducted mining from adjacent properties under the guise of the contract work and the Executive Engineer submitted complaint before the Revenue Divisional Officer regarding such mining. True copy of the complaint dated 20.07.2015 and 09.05.2016 submitted before the Revenue Divisional Officer, Pala

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W.P.(C).2956/2017

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is produced and marked as Exhibits R3(a) and (b).

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The repeated allegation in paragraph 8 of violation of rules of Mining and Geology and excessive mining of soil and granite are also incorrect and denied. The excavation as well as removal of soil are as per the MoRTH specifications stipulated in the agreement with variations which may occur in actual execution which is also contemplated in the agreement.

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The allegation in paragraph 9 that land in block No. 28 of Ramapuram village an extent of 1 acre is illegally reclaimed by respondent No.9 using soil and granite collected from the site which has to be used for upgradation work of the road is totally incorrect and ill informed statement. During the formation of the road the area being hilly there was surplus quantity of earth and unserviceable boulder stones which required to be removed for the smooth progress of the road work. There was no Government property available for stocking huge quantity of earth and boulders so removed. So the 9th respondent contractor arranged a private property for stocking the earth and unserviceable boulders. The earth stocked at that property arranged by the contractor belongs to Government. After utilisation for the remaining finishing works the surplus earth stocked in the alleged yard will be disposed by public auction. Apart from the alleged yard of 1 acre mentioned in Paragraph 9 by the petitioner, in another yard at Vellilappally Village, Kottayam District also some quantity of earth is stocked. That yard at Vellilappally Village is also arranged by the Contractor in similar circumstance of non availability of Government land for stocking the earth. The earth stocked in both yards being property of the Government will be disposed by public auction after completion of the road work.

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The allegation that granites and soil are misappropriated and illegally used for purpose other than those mentioned in the contract by respondent No.9 is totally incorrect. There is absolutely no financial loss also. Exhibit P6 (4) and (5) photographs show the retention wall constructed by the contractor at his expense for environmental protection to avoid subsiding the soil in to the

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W.P.(C).2956/2017

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neighbouring property.

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The repeated averments in paragraph 10 are also baseless and denied. The mobile crusher unit used by respondent No.9 was also for the purpose of executing the contract work and the insinuation regarding crusher unit against respondent No. 9 is baseless.

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The averment in paragraph 11 with respect to collusion between respondents is also baseless and denied. There is absolutely no unnecessary expense. The allegation regarding joint venture of respondent No. 9 is also baseless. The joint venture is part of the agreement. The joint venture as well as the agreement conditions have been scrutinized and approved by the World Bank as per their guidelines. So there is absolutely no illegality in the joint venture.

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The statement in the grounds that the granites and soil are not properly measured is incorrect and there is proper measurement as per the specifications in the agreement and MORTH specifications clause 301(8).

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Ground B, C, D, E, F, G, H, I and J are allegations which are already stated in the body of the writ petition which requires no But it is submitted that all the grounds are separate answer. But it is submitted that all the grounds are baseless and untrue.

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The prayers made in the Writ Petition are ill founded and baseless. A World Bank Team of Experts in all fields including Engineering (structural safety as well as quality), Environment, Road Safety, Fund Management and Legal aspect have been inspecting every quarter for reviewing the project. Before final payment is effected as-built drawing and final measurements will be scrupulously conducted as per the terms and conditions of the agreement and only on satisfaction by the competent authority final bill will be paid. 14. The work is in its final stage and it will be completed shortly. The allegations are baseless and the writ petition is filed with malafide intentions is liable to be dismissed with compensatory cost.”

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Ext.R3(a), letter, appended to the counter affidavit is extracted here-

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under:

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“Rock blasting is made in the land acquired by KSTP and for approach road where access is lost for the upgradation of the Ponkunnam-

W.P.(C).2956/2017

Thodupuzha road.

Complaints are now coming up stating illegal/unauthorised blasting in the boundary of PWD boundary. On verification, it is found that rock blasting has been done beyond the area acquired by PWD especially between Nellappara and Kurinji at around ch:122/300. This is not required for the upgradation work. The legality/authorization of the above cannot be verified from this office. Hence, I request you to verify legality of the work to avoid complaints of unauthorised blasting.”

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Added further, when the matter came up for hearing today, the learned State Attorney submitted that the work is over. Contractor has been paid. Not satisfied with the amount paid, the contractor raised arbitration. Excess rubbles extracted during the process of work was sought to be sold. There were no bidders. Therefore, auction was fixed for sale of rubbles.

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We have heard Sri.K.V.Sohan, learned State Attorney for respondents

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1 to 6 and Mr.P.Thomas Geevarghese for respondents 7 to 9, contractor. After hearing both the sides and going through the materials on record, we find that the Government have properly answered the averments made in the affidavit filed in support of the writ petition. We are of the view that the petitioner is not entitled for issuance of mandamus as prayed for.

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Writ petition dismissed.

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Sd/S.MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P.CHALY JUDGE

W.P.(C).2956/2017

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE CONTRACT DATED 05.05.2014. EXHIBIT P2 TRUE COPY OF THE BILL OF QUANTITIES DATED NIL. EXHIBIT P3 A TRUE COPY OF THE JOINT VENTURE AGREEMENT BETWEEN THE RESPONDENT NO.7 AND 8 DATED 19.02.2014. EXHIBIT P4 TRUE COPY OF THE INFORMATION RECEIVED UNDER THE RIGHT TO INFORMATION ACT DATED 16.03.2016. EXHIBIT P5 TRUE COPY OF THE INFORMATION RECEIVED UNDER THE RIGHT TO INFORMATION ACT DATED 09.08.2016. EXHIBIT P6 TRUE COPY OF THE PHOTOGRAPHS DATED NIL.

Anoop.P.D v. State of Kerala

Case brief

What is this about?

What did the court decide?

Anoop.P.D v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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