Residents sought completion of safety works on a rural road, including Irish drains and retaining walls. The court found adequate governmental steps had been taken and disposed of the petition without directing consideration of their representation, leaving contractor defaults and remaining works for governmental action.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 1ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943
WP(C) NO. 4530 OF 2019
PETITIONERS:
BY ADVS.RAJAN VISHNURAJ SRI.V.HARISH
RESPONDENTS:
BY ADVS. SR. GOVERNMENT PLEADER SRI.K.P.HARISH SRI.DEEPU LAL MOHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 1st day of November 2021
S.MANIKUMAR, C.J.
Petitioners in this writ petition are stated to be permanent residents of the Pallivasal Panchayat in Idukki district and concerned about the irresponsible and unplanned manner of executing the Kambiline Unnikuzhi Kallar Road under the Pradhan Manthri Gram Sadak Yojana – II Scheme (PMGSY-II).
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places. The road as it is has become unusable due to the huge ditches that have formed. It is also submitted that recently there has been near fatal accidents which had occurred in this area due to the condition of the road. If this inordinate delay from the respondents is to continue, the whole purpose of constructing the required drains and retaining wall before the full fledged monsoons would become virtually useless. In the absence of necessary retaining wall and Irish drains, more erosion of the road topping is likely and in that case, Kambiline Unnikuzhi Kallar Road is likely to be much more dangerous, for the motorist and the other road users. The construction and maintenance of safe roads is the duty of the first respondent and thus, non implementation of the recommendations laid down in Exhibits P11 and P14 reports by the first respondent/State of Kerala would make the present case fit for the invocation of the extraordinary jurisdiction of this Honourable Court under Article 226 of the Constitution of India.
“(i) Issue a writ of mandamus or any other appropriate writ directing the 1st respondent to issue necessary orders to ensure that Kambiline Unnikuzhi Kallar Road is constructed strictly in accordance with the Expert Opinion, incorporating adequate safety facility for Irish drain and retaining wall as per Exhibits P11 and P14.
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ii) Issue a writ of mandamus or any other appropriate writ directing the 1st respondent to take consider and pass orders on Exhibit P15 representation, within a stipulated time frame, after affording an opportunity of being heard to the petitioners or their authorized representatives.”
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8. Relevant portions of the said statement read as under:
“7. It was further clarified that the provision for CD works and Irish drain are minimum and found to be extremely essential to carry the storm water during rainy season and prevent the road and connected structures from potential damages.
Provision for scarification of existing Water Bound Macaudam (WBM) surface has already been incorporated in the Estimate. However, during execution, it will be ensured that the material available from scarifying the existing WBM will be used to the maximum extent and accounted in the work during execution.
8. The above clarification of the Chief Engineer has been examined in detail. Since the exceptional gradient proposed by Chief Engineer is not seen permissible as per the circular issued by National Rural Road Development Agency (NRRDA) vide DDOP-17035/1/2007-Tech dated 30/09/2010 of JS(RC) & DG, NRRDA, specific remarks has been sought from the State Technical Agency that under which clause the gradient of 1 in 6 is regular along with supporting codal provisions. Direction has also been given to the Chief Engineer, KSRRDA to clearly specify whether the circular of National Rural Road Development Agency (NRRDA vide DDOP17035/1/2007-Tech dated 30/09/2010 of JS(RC) & DG, NRRDA) needs to strictly adhered to or it need not be followed.
9. The file with the clarification furnished by the Chief Engineer, KSRRDA is being examined in consultation with Finance Department. Decision in this regard will be taken by Govt. on receipt of the final remarks of Finance Department in the matter.”
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third respondent/Executive Engineer had served Annexure R3(d) to R3 (g) notices to the 4th respondent directing him to complete the work by extending his time of completion but he has not turned up. Therefore, there is no laches on the part of the respondents 1 to 3 and on sanctioning the flood estimate the entire additional works could be tendered afresh except the works falling under the original and supplemental agreements. Relevant portion of the said statement read as under:
6. Various steps are involved in the DPR (detailed project report)
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preparation of the selected rural road. DPR is prepared by the outsourcing Agency selected by KSRRDA through open tender system. This DPR is verified at PIU level and submitted to KSRRDA for scrutiny. After Scrutinizing at KSRRDA it is submitted to State Technical Agency (STA) for vetting, STA, State Technical Agency is the technical wing for vetting DPR on behalf of Government of India, Ministry of Rural Development. For south zone districts the State technical agency is professors of College of Engineering, Trivandram. Thus sanctioning of DPR involves experts opinion. A true copy of the Proforma C of the work is produced herewith and marked as Annexure R3(a).
As per the agreement schedule he has to carryout earth work, GSB, G2, G3 metaling layers, tarring works, retaining walls, CD works, drains and road signages (sign boards and mile stones). A true copy of the relevant pages of Standard Bidding Document (For construction and Maintenance) is produced herewith and marked as Annexure R3(b).
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regards to the report of Gadgial/Kasthoorirangan. At the same time the possibility of obtaining crushed granite stones from approved quarries is more when compared to the availability of rubble as per prevailing mining laws in Kerala.
12. But in between this, unfortunate flood happened in Kerala in
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August 2018. Thereafter, flood damaged locations were further damaged in 2019 flood.
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be tendered and the damages occurred to the said road can be rectified. The notices were issued to the contractor to rectify the patch occurred in the Bituminous layer after construction and to carry out balance works i.e. wearing coat of retaining walls, guard stone, road signages (sign boards and mile stones) etc.
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Rs.6,37,16,206/-was submitted to the Chief Engineer KSRRDA on 07.07.2018 incorporating all the additional work required for the satisfactory completion of the road. Due to delay in sanctioning of revised estimate No. (1), a revised estimate (2) incorporating urgent works is passed by the 2nd respondent below 10% excess and 4th respondent executed the supplementary agreement and carried out the work except rise of culvert wing wall at Ch 1920, parapets wearing out of retaining walls, guard stones, road signages etc. A true copy of the Supplementary Agreement No. 3 dated 11.07.2019 to the Original Agreement No. 30/CE KSRRDA/2017-18 dated 25.07.2017 is produced herewith and marked as Annexure R3(h). The Photograph shown as Ext P17 is the portion of road between chainage 2940 to 2955 m. At this portion the road is damaged due to overflow from the existing slab culvert that was blocked by a log piece at the time of flood. Also flood affected between chainage 315 to 330m right side is where earth slip occurred. The Chief Engineer, KSRRDA has inspected the site on 01.06.2021 and consequently a flood estimate incorporating the portions affected by flood. A flood estimate of Rs.40,99,398/- was submitted to KSRRDA. The Flood estimate amount for rectifying the damages is Rs.40.99 lakhs. The flood estimate is submitted to Chief Engineer, LSGD for including it in the Rebuild Kerala initiative. The fund sanction is in the active consideration of the Government. Once the estimate is sanctioned, the damages occurred to the said road can be rectified, the flood estimate will be tendered through separate tender. The 4th respondent contractor is liable to complete the work as per original agreement and also the additional works extended by Annexure R3(h) supplemental agreement. As regards to the flood estimate this respondent will initiate work immediately on sanctioning flood estimate by the government with new tender, before the same the 4th respondent is liable to complete the remaining work mentioned in the original estimate as approved initially and the supplemental agreement. It is respectfully submitted that Kambilane Unnikuzhi Kallar road is constructed strictly in accordance with expert opinion with adequate safety facility for irish drain and retaining wall except certain works which were not completed by the 4th respondent. This respondent had served Annexure R3(d) to R3 (g) notices to the 4th respondent directing him to complete the work by extending his
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time of completion but he has not turned up. Therefore there is no latches on the part of the respondents 1 to 3 and on sanctioning the flood estimate the entire additional works could be tendered afresh except the works falling under the original and supplemental agreements.
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petition. However, if the contractor has not discharged his duties as per the agreement/subsequent agreement and that certain works have not been executed, it is for the Government to take appropriate action against the contractor if warranted, or in the alternative to take steps for fresh tenders for the execution of the remaining works.
Writ petition is disposed of accordingly.
sd/-
S.MANIKUMAR CHIEF JUSTICE
sd/SHAJI P. CHALY JUDGE
jes
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APPENDIX
PETITIONERS' EXHIBITS:
| EXHIBIT P1 | A TRUE PHOTOCOPY OF THE LETTER NO.P-17024/13/2016-RC DATED 08.11.2016 FROM THE DIRECTOR(PMGSY), MINISTRY OF RURAL DEVELOPMENT TO THE PRINCIPAL SECRETARY, LSGD. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE PHOTOGRAPHS OF THE DILAPIDATED CONDITION KAMBILINE UNNIKUZHI KALLAR ROAD AT THE BEGINNING OF THE MONSOON SHOWERS LAST YEAR. |
| EXHIBIT P3 | A TRUE PHOTOCOPY OF THE RESOLUTION PASSED BY THE PALLIVASAL GRAMA PANCHAYAT ON 28.05.2018 ALONG WITH ITS ENGLISH TRANSLATION. |
| EXHIBIT P4 | A TRUE COPY OF THE LETTER DATED 22.06.2018 ISSUED BY THE PRESIDENT OF THE PALLIVASAL GRAMA PANCHAYAT TO THE 2ND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION. |
| EXHIBIT P5 | A TRUE PHOTOCOPY OF THE LETTER DATED 23.06.2018 ISSUED FROM THE OFFICE OF THE MLA, DEVIKULAM TO THE RURAL DEVELOPMENT DEPARTMENT ALONG WITH ITS ENGLISH TRANSLATION. |
| EXHIBIT P6 | A TRUE PHOTOCOPY OF THE LETTER DATED 26.06.2018 ISSUED BY THE MEMBER OF PARLIAMENT, IDUKKI TO THE 2ND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION. |
| EXHIBIT P7 | TRUE COPY OF THE PHOTOGRAPHS OF THE CONDITION OF THE KAMBILINE UNNIKUZHI KALLAR ROAD AFTER THE AUGUST, 2018 AFTER THE FLASH FLOODS THAT HIT STATE OF KERALA. |
| EXHIBIT P8 | A TRUE PHOTOCOPY OF THE LETTER NO.A/86/2017/PIU/IDK DATED 25.05.2018 ISSUED FROM THE EXECUTIVE ENGINEER, PROGRAMME IMPLEMENTATION UNIT, IDUKKI TO THE SUPERINTENDING ENGINEER, KSRRDA ALONG WITH A REPORT. |
| EXHIBIT P9 | A TRUE PHOTOCOPY OF THE AGREEMENT EXECUTED BETWEEN THE CHIEF ENGINEER, KSRRDA AND M/S MAJESTIC CONSTRUCTIONS. |
| EXHIBIT P10 | A TRUE PHOTOPY OF THE NOTICE TO PROCEED WITH WORK DATED 25.07.2017 ISSUED BY THE CHIEF ENGINEER, KSRRRDA TO M/S MAJESTIC CONSTRUCTIONS. |
| EXHIBIT P11 | A TRUE PHOTOCOPY OF THE INSPECTION REPORT FILED BY THE NQM FOR THE PMGSY WORK. |
| EXHIBIT P12 | A TRUE PHOTOCOPY OF THE LETTER NO.5175/B/2017/KSRRDA DATED 07.07.2018 |
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| ISSUED BY THE CHIEF ENGINEER, KSRRDA TO THE PRINCIPAL SECRETARY, LSGD. |
|---|
| EXHIBIT P13 | A TRUE PHOTOCOPY OF THE LETTER NO.DD1/3017/2018/LSGD DATED 04.11.2018. |
|---|---|
| EXHIBIT P14 | A TRUE PHOTOCOPY OF THE LETTER N.5175/B/2017/KSRRDA DATED 30.11.2018 FROM THE 2ND RESPONDENT TO THE PRINCIPAL SECRETARY,LSGD. |
| EXHIBIT P15 | A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 02.02.2019 PREFERRED BY THE PETITIONER BEFORE THE PRINCIPAL SECRETARY, LSGD. |
| EXHIBIT P16 | TRUE PHOTOGRAPHS OF THE ROAD ACCIDENT THAT OCCURRED IN THE KAMBILINE UNNIKUZHI KALLAR ROAD |
| Exhibit P17 | A TRUE COPY OF THE PHOTOGRAPH DEPICTING THE PRESENT STATE OF THE KAMBILINE UNNIKUZHI KALLAR ROAD. |
RESPONDENTS' EXHIBITS:
| EXHIBITR4 (a) | THE PHOTOCOPY OF THE G.O.(RT)NO.1451/2019/LSGD DATED 11-07-2019 ISSUED BY THE 1ST RESPONDENT. |
|---|---|
| EXHIBIT R4(b) | THE PHOTOCOPY OF THE PRICE SCHEDULE FORMING PART OF EXT. P9 CONTRACT. |
| EXHIBIT R4(c) | THE PHOTOCOPY OF THE REPRESENTATION DATED 25-07-2019 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE RESPONDENTS 1 AND 2. |
| EXHIBIT R4(d) | THE PHOTOCOPY OF THE ANNEXURE I TO THE 'FORMAT FOR INFORMATION TO SQM FOR INSPECTION OF PMGSY WORK' DATED 19-03-2019. |
| EXHIBIT R4(e) | THE PHOTOGRAPHS SHOWING THE PRESENT CONDITION OF THE SUBJECT ROAD TAKEN ON 08-08-2019. |
| Exhibit R4(f) | THE PHOTOCOPY OF THE INTERIM ORDER DATED 16/08/2019 PASSED BY THIS HON'BLE COURT IN WPC.NO.4530/2019. |
| Exhibit R4(g) | THE PHOTOCOPY OF ORDER NO.5175/B/2017/KSRRDA DATED 27/04/2019 ISSUED BY THE SUPERINTENDING ENGINEER, KSRRDA, THIRUVANANTHAPURAM. |
| Exhibit R4(h) | THE PHOTOCOPY OF ARGUMENT NOTE DATED 02/09/2019 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT. |
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| Exhibit R4(i) | THE PHOTOCOPY OF LETTER NO.5175/B/2017/KSRRDA DATED 18/07/2019 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT. |
|---|---|
| Exhibit R4(j) | THE PHOTOCOPY OF LETTER NO.DD/307/2018/LSGD DATED 18/09/2019 ISSUED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT TO THE 2ND RESPONDENT. |
| Exhibit R4(k) | THE PHOTOCOPY OF LETTER NO.5175/B/2017/KSRRDA DATED 26/09/2019 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT. |
| Exhibit R4(l) | THE PHOTOCOPY OF G.O.(RT) NO.2666/2019/LSGD DATED 26/11/2019. |
| Exhibit R4(m) | THE PHOTOCOPY OF LETTER DATED 02/01/2020 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT. |
| Exhibit R4(n) | THE PHOTOCOPY OF LETTER NO.136/2017/PIU/IDK DATED 14/11/2019 OF THE ASSISTANT ENGINEER, PROJECT IMPLEMENTATION UNIT, IDUKKI DISTRICT. |
| Exhibit R4(o) | THE PHOTOCOPY OF LETTER DATED 03/02/2020 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT. |
| Exhibit R4(p) | THE PHOTOCOPY OF REPRESENTATION DATED 06/02/2020 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT. |
| Exhibit R4(q) | THE TRUE PRINTOUT OF DETAILS AVAILABLE IN THE OFFICIAL WEBSITE OF THE DEPARTMENT OF POST REGARDING TRACK CONSIGNMENT OF CONSIGNMENT NO. EL390732367IN. |
| Exhibit R4(r) | THE PHOTOCOPY OF REPRESENTATION DATED 27/02/2020 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT. |
| AnnexureR3(a) | A TRUE COPY OF THE PROFORMA C OF THE WORK |
| Annexure R3(b) | A TRUE COPY OF THE RELEVANT PAGES OF STANDARD BIDDING DOCUMENT (FOR CONSTRUCTION AND MAINTENANCE) |
| Annexure R3(c) | A TRUE COPY OF THE PHOTOGRAPHS OF THE PRESENT CONDITION OF ROAD |
| Annexure R3 (d) | A TRUE COPY OF THE NOTICE DATED 24.1.2020 ISSUED BY THIS RESPONDENT TO THE 4TH RESPONDENT. |
Annexure R3(e) A TRUE COPY OF THE NOTICE DATED 13.2.2020 ISSUED BY THE 2ND RESPONDENT TO
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THE 4TH RESPONDENT AND TRANSLATED COPY.
Annexure R3(h) A TRUE COPY OF THE SUPPLEMENTARY AGREEMENT NO.3 DATED 11.7.2019 TO THE ORIGINAL AGREEMENT NO.30/CE-KSRRDA/2017-18 DATED 25.7.2017.
// TRUE COPY //
P.S. TO JUDGE
1 issue framed by the court
Were directions required to secure road safety works and consideration of the residents' representation despite the steps already taken by the Government?
Colour shows how this judgement treated each authority
State of H.P. and Another vs. Umed Ram Sharma and othersReferred¶29
1986 (2) SCC 68 · Who else cites this
THULASI BHAI KRISHNAN
PRASANNA ANAND
STATE OF KERALA
CHIEF ENGINEER, KERALA STATE RURAL ROADS DEVELOPMENT AGENCY
EXECUTIVE ENGINEER, PMGSY PROGRAM IMPLEMENTATION UNIT, IDUKKI DISTRICT
DOMINIC ZACHARIAS
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
