Allowed

George Elias and Associates, v. State of Kerala

Kerala HC9 Dec 2021WP(C)/24848/2021

Case brief

AI extract

What is this about?

The Court set aside communications directing the petitioner to complete work without hindrance, holding them unsustainable as they overlooked a prior government order relieving the petitioner from the contract without risk and cost. The respondents were directed to make payments for completed work.

What did the court decide?

Exhibits P18, P19, and P21 are set aside; respondents to make payments for completed work if not already made.

George Elias and Associates, Vs State of… — 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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THURSDAY, THE 9^TH DAY OF DECEMBER 2021/18TH AGRAHAYANA, 1943 WP(C) NO. 24848 OF 2021

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PETITIONER:

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GEORGE ELIAS AND ASSOCIATES, A PARTNERSHIP FIRM, HAVING ITS OFFICE AT EDAYATH, AYAVANA, MUVATTUPUZHA, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER-MR. GEORGE ELIAS

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BY ADVS. V.PHILIP MATHEW GIBI.C.GEORGE E.RADHAKRISHNAN AMAL PARTHASARADHY

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 KERALA STATE RURAL ROADS DEVELOPMENT AGENCY, 5TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM 695 011, REPRESENTED BY ITS CHIEF ENGINEER.

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3 THE CHIEF ENGINEER, KERALA STATE RURAL ROADS DEVELOPMENT AGENCY, 5TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM 695 011.

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W.P.(C) No.24848/2021

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4 THE SUPERINTENDING ENGINEER, KERALA STATE RURAL ROADS DEVELOPMENT AGENCY, 5TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM 695 011.

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5 THE EXECUTIVE ENGINEER, PMGSY, PROGRAMME IMPLEMENTATION UNIT (PIU), DISTRICT PANCHAYAT, PAINAVU P.O., IDUKKI 685 603.

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6 THE ASSISTANT EXECUTIVE ENGINEER, PMGSY, PROGRAMME IMPLEMENTATION UNIT (PIU), DISTRICT PANCHAYAT, PAINAVU P.O., IDUKKI-685 603.

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SMT.VINITHA B SR.G.P.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.24848/2021

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N. NAGARESH, J.

Dated this the 9^th day of December, 2021

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The petitioner, a Partnership Firm engaged in doing PWD works, is before this Court seeking to quash Exts.P18, P19 and P21 issued by the 3^rd respondent and to command the respondents to relieve the petitioner from doing a work awarded to the petitioner as per Ext.P2 without risk and cost of the petitioner in view of Exts.P14 and P17 orders and to further direct the respondents to make payments for the works done by the petitioner in respect of the above said work.

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The petitioner states that in the year 2013, the petitioner executed Ext.P2 agreement dated 05.03.2014 with the 4^th respondent for doing the work “PMGSY 2013-2014

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(Phase VIII) Package No.KR-03-65, Adimaly Block Idukki District including maintenance for five years after construction”. The contract price was ₹3,83,59,889/-.

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The work awarded to the petitioner was in respect of construction and maintenance of IrumpupalamMezhupunchal Road in Idukki District. The petitioner commenced the work on 18.03.2014. When the work started, people in the locality made obstruction demanding construction of retaining walls and ramps. One of the residents approached the Human Rights Commission. Pursuant to the orders of the Human Rights Commission, huge retaining wall was constructed. This work was not included in the original estimate. The petitioner completed first reach of the road and the road was handed over to the respondents.

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Though the petitioner started second reach of the work, the work could not be proceeded with as retaining walls had to be constructed for earth filling, for which sanction was required from the Forest Department. The

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Forest Department did not give sanction and instead, issued a stop memo. The petitioner therefore could not proceed with the work. Already, due to construction of retaining walls and ramps, expenses of the work was increased above the estimated rate. The estimate was not revised.

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The agreement had to be completed within 12 moths. As the work could not be completed within the stipulated time, a supplemental agreement was executed on 27.11.2015, extending the time for completion of work till 31.03.2016. Though a revised estimate was submitted on 03.03.2015, no immediate action was taken.

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As there was no possibility of proceeding the work further in the near future, the petitioner submitted Ext.P12 representation to the 5^th respondent requesting to relieve the petitioner from the work without risk and cost of the petitioner. As there was no action to relieve the petitioner, the petitioner filed W.P.(C) No.11756/2021 seeking directions to relieve the petitioner. Pursuant to Ext.P16 direction of this Court in the said writ petition, the

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Government passed Ext.P17 order dated 06.08.2021 relieving the petitioner from the work without the risk and cost of the petitioner.

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To the surprise of the petitioner on 12.08.2021, the petitioner was served with Ext.P17 e-mail communication of the 3^rd respondent directing the petitioner to complete all the work where there is no hindrance. By Ext.P19 communication dated 26.08.2021, the petitioner was directed

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to renew the agreement. On 30.09.2021, the petitioner was given an ultimatum as per Ext.P21 to take steps within 14 days for completing the work where there is no hindrance. The petitioner is before this Court aggrieved by Exts.P18, P19 and P21.

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The petitioner contended that Government had relieved the petitioner from the work without the risk and cost of the petitioner as per Ext.P17. The 3^rd respondent cannot go beyond Ext.P17. In fact, by Ext.P14, the 3^rd respondent himself had recommended to relieve the petitioner from the work without the risk and cost of the petitioner. Exts.P18,

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P19 and P21 therefore cannot stand the scrutiny of law.

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The 3^rd respondent contested the writ petition. The 3^rd respondent submitted that the petitioner is duty bound as per the original agreement to execute the hindrance free work. This is specifically directed by the State Government in Ext.P17 order. The 3^rd respondent has given directions requiring the petitioner to complete the works remaining in the original agreement and hindrance free. Several communications were issued by the 3^rd respondent directing to execute the work. The works which can be avoided, can be assessed only once the petitioner restarts the work.

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The claim of the petitioner to make payment, increasing the fuel and material cost cannot be accepted, contended the 3^rd respondent. The delay in execution of the work is attributable to the petitioner. If the petitioner did not finish the work as agreed to, the State Exchequer will lose public money. The Government of India will be recouping the whole amount expended on this unhindered portion,

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which will be a great loss to the Government.

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I have heard the learned counsel for the petitioner

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and the learned Senior Government Pleader for the respondents.

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After signing Ext.P2 agreement, the petitioner started the work on 18.03.2014. The people in the locality resisted the construction work demanding retaining walls and ramps. Such additional constructions were not contemplated in the agreement. The Human Rights Commission passed order directing to construct retaining wall. The petitioner carried out such work and completed the entire work in respect of the first reach of the road, which was handed over to the respondents. This fact is not disputed.

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The petitioner states that out of 2375 metres length of second reach, 380 metres was in Forest land. The respondents did not care to obtain sanction from the Forest Department. Furthermore, the Forest Department issued stop memo to the petitioner. The fact that the petitioner was ready and willing to complete the work, is evident from the

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supplemental agreement executed by the petitioner on 27.11.2015. But, it has to be noted that there was no effective steps to revise the estimates taking into consideration the additional works that had to be undertaken by the petitioner. The 5^th respondent forwarded revised estimate to the 3^rd respondent, as per Ext.P6. The Government granted administrative sanction for revised estimate only on 09.04.2018. During this period, there was exorbitant increase in the cost of material, fuel and labour. The GST was also increased from 4% to 12%. Apart from that, the respondents did not take any steps to obtain sanction from Forest Department. It was in such circumstances that the petitioner requested the respondents to relieve him from the contract.

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Ext.P17 Government Order would indicate that the Government has examined the matter in detail and took a decision to relieve the petitioner from his obligation without the risk and cost of the petitioner. In Ext.P17, the Government has found that the petitioner has completed all

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the works where there was no hindrance.

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In the facts and circumstances of the case, this Court is of the view that Exts.P18, P19 and P21 communications of the 3^rd respondent are made overlooking Ext.P17 Government Order. Exts.P18, P19 and P21 are therefore legally unsustainable. Consequently, Exts.P18, P19 and P21 orders are set aside. The respondents are directed to make payments for the works completed by the petitioner, if such payments are not already made.

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Writ petition is disposed of as above.

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Sd/- N. NAGARESH, JUDGE

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aks/09.12.2021

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W.P.(C) No.24848/2021

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APPENDIX OF WP(C) 24848/2021

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PETITIONER'S EXHIBITS

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Exhibit P1	COPY OF COMMUNICATION NO.ENGG (DB3)
	854/3/2014/KSRRDA DATED 25.2.2014
	ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER (WITHOUT ATTACHMENT)
Exhibit P2	COPY OF AGREEMENT NO.110/SE-
	KSRRDA/2013-14 DATED 5.3.2014 ALONG WITH MEMORANDUM OF WORKS TENDERED
Exhibit P3	COPY OF RELEVANT PAGES OF REVISED ESTIMATED DATED 3.3.2015 SUBMITTED BY THE ACCREDITED ENGINEER, PMGSY, ADIMALI TO THE 6TH RESPONDENT
Exhibit P4	COPY OF ORDER NO.ENGG (DB3) 854/2014/KSRRDA DATED 24.11.2015 PASSED BY THE 4TH RESPONDENT WITH REGARD TO EXTENSION OF TIME.
Exhibit P5	COPY OF REPRESENTATION DATED 29.3.2016 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT
Exhibit P6	COPY OF COMMUNICATION NO.03/65/2017 DATED 14.2.2017 ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT
Exhibit P7	COPY OF COMMUNICATION NO.ENGG. (DB3) 854/2014/KSRRDA DATED 26.5.2017 ISSUED BY THE 3RD RESPONDENT TO THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT RESPONDENT.
Exhibit P8	COPY OF G.O.(RT) NO.991/2018/LSGD DATED 9.4.2018
Exhibit P9	COPY OF REPRESENTATION DATED 13.8.2018 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT
Exhibit P10	COPY OF REPRESENTATION DATED
	15.11.2018 SENT BY THE PETITIONER TO THE 3RD RESPONDENT ALONG WITH ACKNOWLEDGMENT CARD
Exhibit P11	COPY OF REPRESENTATION DATED 26.1.2019
	SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT

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Exhibit P12	COPY OF REPRESENTATION DATED 8.4.2019
	SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT
Exhibit P13	COPY OF REPORT DATED 22.4.2019
	SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT
Exhibit P14	COPY OF COMMUNICATION
	NO.854/2014/KSRRDA DATED 18.6.2019
	ISSUED BY THE 3RD RESPONDENT TO THE
	ADDITIONAL CHIEF SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT
Exhibit P15	COPY OF REPRESENTATION DATED 17.9.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT
Exhibit P16	COPY OF JUDGMENT DATED 10.6.2021 PASSED IN W.P.(C) NO.11756/2021
Exhibit P17	COPY OF G.O.(RT) NO.1487/2021/LSGED
	DATED 6.8.2021 PASSED BY THE 1ST RESPONDENT
Exhibit P18	COPY OF EMAIL DATED 12.8.2021 SENT BY THE 3RD RESPONDENT TO THE PETITIONER
Exhibit P20	COPY OF REPRESENTATION DATED 6.9.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT
Exhibit P21	COPY OF COMMUNICATION/ORDER NO.854/2014/KSRRDA DATED 30.9.2021
	ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER
Exhibit P19	COPY OF COMMUNICATION NO.A/394/2014
	DATED 26.8.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER
Exhibit P22	COPY OF REPRESENTATION DATED
	16.10.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT
Exhibit P23	COPY OF REPRESENTATION DATED NIL
	SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT

George Elias and Associates, v. State of Kerala

Case brief

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George Elias and Associates, v. State of Kerala

Case brief

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