Dismissed

Samuel Varghese v. State of Kerala

Kerala HC9 Mar 2021WP(C)/11966/2020

Case brief

AI extract

What is this about?

Petitioner, a government contractor, filed writ petitions seeking directions to approve revised estimates for completed irrigation works executed in 1990-92. The High Court dismissed the petitions, finding no merit due to delayed litigation, contractual obligation to pay consolidated rates, and building defects identified in vigilance investigations.

What did the court decide?

Petitioner sought direction to approve revised estimate of works carried out by him and payment of 12% interest for delay.

Samuel Varghese Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2021)

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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 N.NAGARESH

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TUESDAY, THE 09TH DAY OF MARCH 2021/18TH PHALGUNA, 1942

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WP(C).No.11966 OF 2020(U)

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PETITIONER:

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SAMUEL VARGHESE, GOVERNMENT CONTRACTOR, KANDATHILPARAMBIL HOUSE, MUTTOM P.O., HARIPPAD, ALAPPUZHA DISTRICT-690 511.

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BY ADVS.

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SRI.K.BABU THOMAS SMT.MARYKUTTY BABU

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RESPONDENTS:

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1 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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3 THE CHIEF ENGINEER, IRRIGATION, PROJECTS II, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM-695 033.

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4 THE SUPERINTENDING ENGINEER, KALLADA IRRIGATION PROJECT, RB CIRCLE, PULAMON P.O., KOTTARAKKARA, KOLLAM-691 501.

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5 THE EXECUTIVE ENGINEER, KIP RB DIVISION NO.II, PULAMON P.O., KOTTARAKKARA, KOLLAM-691 501.

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6 THE EXECUTIVE ENGINEER, KIP LB DIVISION NO. 5, ASRAMAM P.O., KOLLAM-691 002.

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BY GOVERNMENT PLEADER SMT.DEEPA NARAYANAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, ALONG WITH WP(C).12070/2020(G), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.11966 & 12070 of 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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TUESDAY, THE 09TH DAY OF MARCH 2021/18TH PHALGUNA, 1942

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WP(C).No.12070 OF 2020(G)

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PETITIONER:

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SAMUEL VARGHESE,GOVERNMENT CONTRACTOR, KANDATHILPARAMBIL HOUSE, MUTTOM P.O., HARIPPAD, ALAPPUZHA DISTRICT-690 511.

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BY ADVS. SRI.K.BABU THOMAS SMT.MARYKUTTY BABU

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RESPONDENTS:

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1 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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3 THE CHIEF ENGINEER, IRRIGATION, PROJECTS -II, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM-695 033.

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4 THE SUPERINTENDING ENGINEER, KALLADA IRRIGATION PROJECT, RB CIRCLE, PULAMON P.O., KOTTARAKKARA, KOLLAM-691 501.

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5 THE EXECUTIVE ENGINEER,KIP RB DIVISION NO.II, PULAMON P.O., KOTTARAKKARA, KOLLAM-691 501.

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6 THE EXECUTIVE ENGINEER,KIP LB DIVISION NO.5, ASRAMAM P.O., KOLLAM-691 002.

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BY GOVERNMENT PLEADER SMT.DEEPA NARAYANAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, ALONG WITH WP(C).11966/2020(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.11966 & 12070 of 2020

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 9^th day of March, 2021

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[WP(C) Nos.11966 & 12070 of 2020]

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The petitioner, who is a Contractor, undertook two

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works in relation to “KI & TCDP – RBC – Formation of Vallikunnam Distributory” and completed the work. In these writ petitions, the petitioner seeks to direct the 1^st respondent-State of Kerala to consider and pass orders on his representation to grant approval for revised estimate of the work.

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In W.P.(C) No.11966/2020, the petitioner states that

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he was awarded a contract for the work of “KI & TCDP-RBCFormation of Vallikunnam Distributory from ch.9030 m to ch.11070 m including CD works (Balance work)”. The value of

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the accepted tender was `38,01,155/-. As per Ext.P1 Agreement, the work had to be completed within 15 months

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WP(C) Nos.11966 & 12070 of 2020

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from the date of order to start the work.

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The petitioner states that the design, drawings and specifications of the work were altered and extra items and quantities were included through Exts.P2 and P3 Supplemental Agreements. The work was completed on 10.08.1992. Subsequently, on 23.02.1995, the 3^rd respondent-Chief Engineer submitted Ext.P4 revised estimate for the work for an excess amount of `17,21,713/- to the Government seeking approval.

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The petitioner filed O.S. No.332/2001 before the Sub Court, Thiruvananthapuram for recovery of unpaid value of works carried out by him. The suit was referred to the Lok

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Adalat. The Lok Adalat passed Ext.P5 order dated 12.07.2003, wherein the defendants were required to get the sanction from the Government regarding interest. The petitioner sent representation dated 18.03.2019 to the 5^th respondent-Chief Engineer and representation dated 19.06.2019 to the 1^st respondent-Government requesting to approve the revised estimate.

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WP(C) Nos.11966 & 12070 of 2020

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The 1^st respondent, as per Ext.P7, directed the 3^rd respondent to take urgent action on the representation of the petition. Though the 3^rd respondent convened a meeting on 07.12.2019, the proposed revised estimate has not been approved by the 1^st respondent. The petitioner therefore seeks to direct the 1^st respondent to consider and pass orders on Ext.P6 representation to grant approval of Ext.P4 revised estimate of the works.

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In W.P.(C) No.12070/2020, the petitioner was awarded the work of “KI & TCDP-RBC- Formation of Vallikunnam Distributory from Ch. 7070 m to ch. 9030 m including C.D. Works (Balance work)”. Ext.P1 Agreement was executed on 14.11.1990 for the work of valuing 45,78,313/-. In this work also, Exts.P2 and P3 revised estimates were prepared. The 3<sup>rd</sup> respondent proposed a revised estimate for an excess amount of 34,27,993/. For this work also, the 1^st respondent has not revised the estimate.

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The learned counsel for the petitioner argued that the inaction of the 1^st respondent to approve Ext.P4 revised

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WP(C) Nos.11966 & 12070 of 2020

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estimate is violation of Articles 14, 19 and 21 of the Constitution of India. The respondents have failed to discharge their duties warranting interference by this Court. The respondents are liable to pay 12% interest also on the amount due to the petitioner in view of the inordinate delay in approving the revised estimate.

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The 4^th respondent filed a counter affidavit and defended the writ petitions. The 4^th respondent pointed out that the petitioner had quoted rates 67.99% above the 1986 PWD schedule of rates. The work was awarded after obtaining the willingness of the petitioner at 63% above 1986 schedule of rates. The Canal structure had to be modified after issuance of the work order. Supplementary Agreements were entered into. As per the agreement conditions, Government is the authority to grant additional rate over and above the agreed rate.

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The 4^th respondent further stated that the petitioner had received an amount of 60,44,795/- against the tender amount of 29,10,101/-, but after receiving `60,44,795/- from

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WP(C) Nos.11966 & 12070 of 2020

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the State Exchequer during the 1990s, no water is distributed through the canal, due to defective and poor construction. These writ petitions have been filed after a lapse of 27 years of the defective construction. The writ petitions are therefore not liable to be entertained, contended the 4^th respondent.

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I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents.

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The original work is of the year 1990. The work was completed in the year 1992. The 3^rd respondent submitted the revised estimate only in the year 1995. The 1^st respondent did not deem it proper to approve the proposal of the 3^rd respondent. The petitioner executed agreement with 1986 Schedule of Rates. After completing the work, the petitioner raised additional bills for supplemental works with 100% above 1992 Schedule of Rates. As per agreement conditions, the supplemental works were also to be carried out at the original rates.

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WP(C) Nos.11966 & 12070 of 2020

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Furthermore, it has come out that in the related work done by the petitioner, Vigilance investigation revealed that the petitioner carried out canal structure work above the soil, without foundation and the Government has incurred considerable loss due to the substandard work. This was one of the reason for the Government for not revising the estimate.

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It is also seen that the petitioner had filed O.S. No.334/2001 for realisation of the revised estimate amount with 12% interest. The Sub Court, however, dismissed the O.S. on 09.11.2006. These writ petitions have been filed 14 years thereafter.

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In the circumstances, this Court finds no reason to give any direction to the Government as sought for by the petitioner. The writ petitions are devoid of any merit and are therefore dismissed.

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Sd/- N. NAGARESH, JUDGE

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aks/15.03.2021

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WP(C) Nos.11966 & 12070 of 2020

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APPENDIX OF WP(C) 11966/2020

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1 TRUE COPY AGREEMENT.	OF	THE	RELEVANT PORTION OF THE
EXHIBIT	P2 TRUE COPY SUPPLEMENT	OF AL	TH AGREE	E RELEVANT PORTION OF MENT NO.I
EXHIBIT	P3 TRUE COPY SUPPLEMENT	OF AL	TH AGREE	E RELEVANT PORTION OF MENT NO.II
EXHIBIT	P4 TRUE COPY WORK.	OF	THE	REVISED ESTIMATE OF THE
EXHIBIT	P5 TRUE COPY ADALATH IN	OF OS	THE NO.3	ORDER PASSED BY THE LOK 32/2001.
EXHIBIT	P6 TRUE COPY PETITIONER	OF TO	THE THE	REPRESENTATION OF THE RESPONDENTS.
EXHIBIT	P7 TRUE COPY RESPONDENT URGENT ACT	O T ION	F TH O TH .	E LETTER OF THE 1ST E 3RD RESPONDENT FOR
EXHIBIT	P8 TRUE COPY THE 3RD RE	OF SPO	THE NDENT	MINUTES OF MEETING OF .

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WP(C) Nos.11966 & 12070 of 2020

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APPENDIX OF WP(C) 12070/2020

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF RELEVANT PORTION OF THE AGREEMENT EXHIBIT P2 TRUE COPY OF RELEVANT PORTION OF SUPPLEMENTAL AGREEMENT NO.I EXHIBIT P3 TRUE COPY OF RELEVANT PORTION OF SUPPLEMENTAL AGREEMENT NO.II EXHIBIT P4 TRUE COPY OF THE REVISED ESTIMATE OF THE WORK FOR RS.34,27,993/EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE LOK ADALATH IN O.S.NO.334/2001 FOR RS.34,27,993 EXHIBIT P6 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER TO THE RESPONDENTS EXHIBIT P7 TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT TO THE 3RD RESPONDENT FOR URGENT ACTION EXHIBIT P8 TRUE COPY OF THE MINUTES OF MEETING OF THE 3RD RESPONDENT

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ncd

Samuel Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

Samuel Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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