Disposed

P.v.Paulose, v. State of Kerala

Kerala HC24 Nov 2022WP(C)/10138/2022

Case brief

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What is this about?

In a writ petition by a government contractor seeking payment for extra works executed in difficult conditions, the High Court directed the Government to sanction a revised estimate within two months and the Superintending Engineer to decide on extra item claims.

What did the court decide?

Directing the Government to sanction the revised estimate within two months and the Superintending Engineer to decide on extra items within two months.

P.v.Paulose, Vs State of Kerala — Banking and Recovery | Kerala HC (2022)

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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 V.G.ARUN

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THURSDAY, THE 24^TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944

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WP(C) NO. 10138 OF 2022

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PETITIONER:

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P.V.PAULOSE, AGED 71 YEARS GOVERNMENT CONTRACTOR, PARASSERIL HOUSE, MEENPARA P.O, PUTHENCRUZ (VIA), ERNAKULAM-682 308

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BY ADV DEEPU LAL MOHAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, PROJECT II, THIRUVANANTHAPURAM-695 033.

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3 THE SUPERINTENDING ENGINEER, WATER RESOURCES DEPARTMENT, PROJECT CIRCLE, MUVATTUPUZHA-686 661.

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4 THE EXECUTIVE ENGINEER, MUVATTUPUZHA VALLEY IRRIGATION PROJECT, DIVISION NO. III, MUVATTUPUZHA-686 661.

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5 THE ASSISTANT EXECUTIVE ENGINEER, MUVATTUPUZHA VALLEY IRRIGATION PROJECT, HEADWORKS SUB DIVISION, MUTTOM, THODUPUZHA-685 587

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GP P.S.APPU

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

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24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).10138/2022

JUDGMENT

Dated this the 24^th day of November, 2022

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The petitioner was awarded the work “MVIP – Constructing RBMC from Ch.11000m to 12000m including CD works – Balance works” at 48% above the estimate rate of Rs.72,51,043/-. Accordingly, the petitioner entered into Ext.P1 agreement and the site was handed over on 22.10.1998. While executing the work, it came to light that the reach of the canal between Ch.11000 m. to 12000 m. is passing through a paddy field and the earth in the area is extremely loose and slushy and had intermittent rocks also. Moreover, a 66KV tower line of the KSEB was running parallel to the canal, making it highly dangerous for the workers at the site. As a result, blasting in the area could be done only after providing 100% protection. As no separate rate was sanctioned for excavation of canal in slushy conditions and blasting of rocks with 100% protection in wet conditions, the petitioner had to carry out the work by incurring expenses from his own pocket. As it became impossible and

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W.P.(C).10138/2022

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uneconomical for the petitioner to continue the work, the issue was brought to the notice of the Engineer concerned through Ext.P2 representation. The respondents assured the petitioner that he will be compensated for the additional work. Based on the assurance, he completed the work and the project was commissioned on 30.06.2006.

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Thereafter, the Executive Engineer forwarded Ext.P11 revised estimate to the 3^rd respondent proposing to include the excavation of canal in slushy soil and blasting with 100% protection in wet conditions as extra items. The recommendation was sent back on the ground that prior sanction was not obtained by the Executive Engineer before granting permission for the extra items of work. Aggrieved, the petitioner filed W.P.(C) No. 18191 of 2009 and obtained Ext.P17 judgment, directing the 1^st respondent to take a decision on Ext.P11. Thereafter, the 1^st respondent heard the petitioner and issued Ext.P20 Order holding that, execution of the extra items without getting the deviations approved and without signing the supplementary agreement was in violation of the Rules and Guidelines and hence, the petitioner's claims

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W.P.(C).10138/2022

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are on weak grounds. By the order, the Superintending Engineer was directed to examine petitioner's claims and take a decision after being convinced of the ground realities. In spite of the direction, the 3^rd respondent did not take a decision on petitioner's claim. Hence, this writ petition.

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Heard Adv. Deepu Lal Mohan for the petitioner and Government Pleader Adv P.S. Appu for the respondents.

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Learned Counsel for the petitioner drew attention to paragraph 6 of the statement filed by the 3^rd respondent, wherein it is admitted that the quantity executed above 125% would be compensated in the final bill only after receiving sanction of revised estimate of Rs.1,53,65,678/- submitted on 30.05.2022. It is contended that the Government should be directed to sanction the revised estimate without further delay.

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Learned Government Pleader submitted that all items executed by the petitioner were measured and paid except the final bill. The balance amount due to the petitioner will be paid as per mutually agreed rates in the original and supplementary agreements. The 10^th and the final bill exceeded the revised sanctioned estimate by Rs.96,62,116/-.

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W.P.(C).10138/2022

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Taking into account the above submissions and the statement of the 3^rd respondent, the writ petition is disposed of as under;

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i. The Government shall take a decision on the revised estimate of Rs.1,53,65,678/- submitted for sanction on 30.05.2022 within two months.

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ii. The 3^rd respondent shall consider the claim for extra items and take a decision, after adverting to the recommendation at Ext.P11 within two months. While taking the decision, the 3^rd respondent shall take into account the following observation at paragraph 4 of Ext. P17 judgment;

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“... The reasons for extra work has been enumerated in Ext.P11 itself. If the petitioner was compelled to do the work, the Department cannot shirk its responsibility for the extra work.”

Sd/-

V.G.ARUN

JUDGE

W.P.(C).10138/2022

APPENDIX OF WP(C) 10138/2022

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PETITIONER EXHIBITS

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Exhibit P1	THE PHOTOCOPY OF AGREEMENT NO. 7/SEPCM/98- 99/FOR WORKS DATED 22.09.1998 ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT.
Exhibit P2	THE PHOTOCOPY OF THE LETTER DATED 01.02.1999 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.
Exhibit P3	THE PHOTOCOPY OF THE LETTER NO. A1-322/95 DATED 18.02.1999 ADDRESSED BY THE ASSSTANT EXECUTIVE ENGINEER TO THE EXECUTIVE ENGINEER.
Exhibit P4	THE PHOTOCOPY OF THE SOIL INVESTIGATION REPORT DATED 22.07.1999 SUBMITTED BY THE PROFESSOR IN CHARGE OF THE RESEARCH AND CONSULTANCY CENTRE, KOTHAMANGALAM.
Exhibit P5	TRUE COPY OF THE LETTER NO. D2-8118/95 DATED 15.09.1999 ADDRESSED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.
Exhibit P6	THE PHOTOCOPY OF THE LETTER DATED 18.09.1999 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
Exhibit P7	THE PHOTOCOPY OF THE ORDER NO. WP2- 4480/93/D5(1) DATED 27.09.1999 ISSUED BY TEH 2ND RESPONDENT.
Exhibit P8	THE PHOTOCOPY OF THE SUPPLEMENTAL AGREEMENT NO. I DATED 28.03.2000 EXECUTED BY THE PETITIONER WITH THE EXECUTIVE ENGINEER IN FULL ADDITIONAL CHARGE OF THE SUPERINTENDING ENGINEER, FOR AND ON BEHALF OF THE GOVERNOR OF KERALA.
Exhibit P9	THE PHOTOCOPY OF THE SUPPLEMENTARY AGREEMENT NO. III DATED 22.09.2001 ENTERED INTO BY THE PETITIONER WITH THE 3RD RESPONDENT, FOR AND ON BEHALF OF THE GOVERNNOR OF KERALA.

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W.P.(C).10138/2022

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Exhibit P10	THE PHOTOCOPY OF LETTER NO. DB-86/09 DATED 02.02.2009 ISSUED TO THE PETITIONER BY THE EXECUTIVE ENGINEER.
Exhibit P11	THE TRUE COPY OF LETTER NO. A2-1435/97 DATED 14.11.2007 ISSUED BY THE EXECUTIVE ENGINEER TO THE 3RD RESPONDENT.
Exhibit P12	THE TRUE COPY OF LETTER NO. D2-8118/95 DATED 30.05.2008 ISSUED BY THE 3RD RESPONDENT TO THE EXECUTIVE ENGINEER.
Exhibit P13	THE PHOTOCOPY OF LETTER DATED 17.01.2009 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
Exhibit P14	THE PHOTOCOPY OF THE ACKNOWLEDGEMENT CARD EVIDENCING THE RECEIPT OF EXT. P13 BY THE 3RD RESPONDENT.
Exhibit P15	THE PHOTOCOPY OF COUNTER AFFIDAVIT DATED 05.02.2010 FILED ON BEHALF OF RESPONDENTS 1 TO 4 BEFORE THIS HON'BLE COURT IN W.P.C NO. 18191/2009
Exhibit P16	THE PHOTOCOPY OF REPLY AFFIDAVIT DATED 02.08.2011 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT IN REPLY TO EXT. P15 COUNTER AFFIDAVIT IN W.P.C NO. 18191/2009
Exhibit P17	THE PHOTOCOPY OF JUDGMENT DATED 14.03.2016 OF THIS HON'BLE COURT IN W.P.C NO. 18191/2009
Exhibit P18	THE PHOTOCOPY OF LETTER DATED 20.04.2016 FORWARDED BY THE PETITIONER TO THE PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
Exhibit P19	THE PHOTOCOPY OF LETTER DATED 20.04.2016 FORWARDED BY THE PETITIONER TO THE 3RD RESPONDENT.
Exhibit P20	THE TRUE COPY OF G.O(RT) NO. 814/2016 /WRD

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W.P.(C).10138/2022

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	DATED 19.10.2016.
Exhibit P21	THE PHOTOCOPY OF REPRESENTATION DATED 17.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
Exhibit P22	THE PHOTOCOPY OF LETTER NO. D2-8118/1995 DATED 13.08.2019 FORWARDED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.
Exhibit P23	THE PHOTOCOPY OF LETTER NO. W.P2/5351/2009/D5(1) DATED 15.10.2019 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.
Exhibit P24	THE PHOTOCOPY OF LETTER NO. D2-8118/1995 DATED 04.11.2019 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.
Exhibit P25	THE PHOTOCOPY OF REPRESENTATION DATED 01.10.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

P.v.Paulose, v. State of Kerala

Case brief

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P.v.Paulose, v. State of Kerala

Case brief

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