Disposed

P.a.Mohammed Rafi v. State of Kerala

Kerala HC29 Nov 2022WP(C)/13370/2022

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a writ petition by a PWD contractor challenging delays due to respondent officers' failure to prepare level reports. Not deciding the allocation of responsibility in this forum, the court directed the respondents to consider the petitioner's objections to a termination order via detailed representation with a decision mechanism.

What did the court decide?

The writ petition was disposed of directing the petitioner to submit a detailed representation to the first respondent objecting to Ext.P16 within two weeks for decision within one month, coercive ste

P.a.Mohammed Rafi Vs State of Kerala — Contract and Commercial Disputes | 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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TUESDAY, THE 29^TH DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA,

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1944

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WP(C) NO. 13370 OF 2022

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PETITIONER/S:

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P.A.MOHAMMED RAFI AGED 47 YEARS S/O. ABDUL HUQ, PUNNILATH HOUSE, KOOLIMUTTAM P.O, THRISSUR DISTRICT, PIN - 680691. BY ADVS. V.M.KRISHNAKUMAR P.R.REENA RENJITH THAMPAN (SR.)

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF PUBLIC WORKS, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001. 2 SUPERINTENDING ENGINEER, OFFICE OF THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT - R & B CENTRAL CIRCLE, ALUVA, ERNAKULAM, PIN - 683101. 3 ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION OFFICE, KODUNGALLUR, THRISSUR DISTRICT, PIN - 680664. 4 ASSISTANT ENGINEER, OFFICE OF ASSISTANT ENGINEER, PWD ROADS SECTION, MALA, THRISSUR DISTRICT, PIN - 680732.

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OTHER PRESENT:

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gp P.S.APPU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

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17.11.2022, THE COURT ON 29.11.2022 DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated this the 29^th day of November, 2022

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The petitioner, a PWD contractor, was awarded

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the work of providing BC overlay to KodakaraKodungallur road from Km 12/540 to 23/700 in Kodungallur LAC as per Ext.P1 dated 13.08.2021. Accordingly, petitioner executed the agreement on 27.08.2021 and took over the site on 06.09.2021. The time for completion of the work was fixed as 9 months from the date of taking over. Thus, the work had to be completed by 5.06.2022.

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The petitioner alleges that, in spite of

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the petitioner taking over the site on 06.09.2021, respondents 3 and 4, the officers in charge of the work, failed to inspect the site and prepare level report, which is essential for the petitioner to commence the work. As the work had to be completed in 9 months, the petitioner

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claims to have made repeated requests to

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respondents 2 and 3 for preparing the level report. While so, on 03.02.2022, the petitioner submitted Ext.P3 request pointing out that the level report is not prepared and as the period of contract is due to expire, the contract period should be extended without fine and the rates for materials, enhanced. After a lot of

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correspondence, the petitioner was issued with Ext.P7 work intimation letter showing the proposed date of commencement of work as 18.04.2022 and the anticipated date of completion as 30.04.2022. This was followed with Ext.P8 letter intimating the petitioner that the initial level was reported to the Chief Technical Examiner on 06.04.2022. The writ petition was originally filed praying for a writ of mandamus directing the second respondent to relieve the petitioner from Ext.P1 work without risk and cost and to refund the amount of Rs.13,35,100/furnished towards security deposit. During

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pendency of the writ petition, a meeting was convened on 20.06.2022. After discussions, the

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second respondent concluded that the petitioner had deliberately delayed setting out and taking

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of levels at the site and the demand for executing the work on revised rates cannot be allowed. It was hence decided to relieve the petitioner from the work and to re-arrange the work at the earliest and to take a decision on the contractors' liability, on the final judgment in the instant writ petition. Accordingly, Ext.P16 order was issued. On being served with a copy of Ext.P16, the writ petition was amended by incorporating a challenge against that order.

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Heard Senior Advocate Ranjith Thampan for the petitioner and Government Pleader P.S.Appu for the respondents.

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Learned Senior Counsel contended that, all throughout, the petitioner was ready and

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willing to commence and complete the work within

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the agreement period. He was disabled from doing

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so due to the recalcitrant attitude of the officials concerned. Repeated requests made by the petitioner seeking preparation of level report yielded fell on deaf ears. Even the respondents admit that the initial levels were reported to the CTE only on 06.04.2022. Even now approval from the CTE is not made available to the petitioner. Respondents 2 to 4 are now attempting to wriggle out of their responsibility by putting the blame on the petitioner. In their haste to do so, the said respondents have committed mistakes with respect to even the quantity of Bitumen to be used. As per Clause 2102.3 of the PWD manual before starting any work, the work shall be set out on the ground as

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per the approved plan. The setting out is to be checked and approved by the Departmental officers. In the instant case, no effort was

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taken by the departmental officers for setting

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out and approving the work. Due to the inordinate delay, now it is impossible for the petitioner to

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execute the work agreed at the rate. The

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petitioner is hence liable to be relieved of the contract, without risk and cost. Referring to Circular No.G2/428/2019/PWD dated 02.09.2022, it

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is submitted that if the petitioner commences the work without the levels being taken and the quantity of materials being fixed correctly, he will be held responsible for the defects, if any,

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in the work and subjected to criminal prosecution.

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Learned Government Pleader contended

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that as per Clause 72 of Part II of the General Conditions of Contract, it is the duty of the contractor to establish, maintain and assume responsibility for benchmarks, grid lines, other levels and grades that are necessary for execution of the work. As such, the petitioner

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cannot evade from the responsibility of preparing the level report. As evidenced by Ext.R2(b) and Ext.R2(c), the petitioner was repeatedly directed to provide technical staff to assist the field officers in taking the levels. The petitioner arranged the technical persons only on 25.01.2022. The pre-level measurements were taken and road marking done on 25.01.2022 and reported in the review meeting held on 05.02.2022. The petitioner had deliberately delayed commencement of the work since his Bitumen plant at Irinjalakkuda was shut down by the Pollution Control Board and it was not possible for the petitioner to source the Bitumen required for the work. As per Clause 2102.3 of the PWD Manual, it is the responsibility of the contractor to set out the work. The petitioner failed to discharge this responsibility in spite of repeated requests from respondents 3 and 4. The KodakaraKodungallur Road is one of the major state

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highways in Thrissur District and is having heavy traffic density. At present, the portion of the road to be maintained by the petitioner is in a totally dilapidated condition and requires urgent repairs to avoid accident and to ensure smooth flow of traffic.

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In the nature of the contentions, the dates and events assume importance. The subject work was awarded to the petitioner as per Ext.P1 dated 13.08.2022 and the agreement was executed on 27.08.2021. The site was taken over by the petitioner on 06.09.2021. The period fixed for completion of the work is 9 months from the date of taking over. As such, the work ought to have been completed by 05.06.2022. According to the respondents, the pre-level measurements were taken by the field staff on 25.01.2022. Again,

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the pre-level measurement was taken by the Assistant Engineer on 01.04.2022 and reported to the Assistant Executive Engineer on 06.04.2022.

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Going by the dates, there is substantial delay between taking over the site and taking of level measurements. Here, the petitioner's contention is that the responsibility of taking level measurements and sanctioning the same is that of

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the respondents. On the other hand, the respondents would contend that the responsibility of setting out the site and taking measurement is that of the petitioner. In this context, it is essential to read Clause 2012.3 of the PWD Manual extracted hereunder;

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“ 2102.3. Setting out of works

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Before starting any work, the work shall be set out on the ground as per approved plans. The responsibility for setting out a work is that of the contractor as per terms of contract. It is however necessary that the setting out is checked and approved by the departmental Officers. This shall be done by the Assistant Engineer for works within his T.S. Powers and the Assistant Executive Engineer in other cases. If in the course of checking, the Assistant Engineer or

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the Assistant Executive Engineer feels that the advice of any higher authority is necessary he shall refer the matter to such higher authority and abide by his instructions. The Agreement Authority may in the case of major works, direct that the setting out shall be got checked and approved by an officer of rank higher than that of an Assistant Executive Engineer. All benchmarks and setting out marks to be adopted for a work shall be of a permanent nature, It is desirable to have more than one benchmark and these shall be properly interconnected to enable checking on a future date. The position of these benchmarks and setting out marks shall be shown in a sketch drawn in the field book and the work spot order book. 2102.4. Approval of Foundations.”

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Going by the provision, the responsibility of setting out the work is that of the contractor as per terms of contract. At the same time, the setting out is to be checked and approved by the departmental officials.

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As pointed out by the learned Government Pleader, as per Clause 72.1 of Part II of the

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General Conditions of Contract, the contractor

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has to establish, maintain and assume responsibility for all benchmarks, grid lines, other levels, lines, dimensions and grades that are necessary for execution of the work, in conformity with the contract document. The contractor should also verify and co-relate all the survey data available at the site before commencing the work and report errors and inconsistencies to the Field Engineer. The above responsibilities of the contractor can be fulfilled by him only if the site is set out and the levels taken in accordance with the procedure prescribed in Clause 1203.2. Unless both parties fulfill their responsibilities and obligations, execution of the work will be adversely effected. The materials on record indicates that other than calling upon the other party to fulfill the responsibility, neither petitioner nor the departmental officials had taken earnest efforts

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to take level measurements and proceed with the

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work. The end result is that the repair and maintenance of a major road got stranded, causing substantial difficulty to the public. It has come to my notice that, at least in some cases, other than spending time by raising allegations against one another, no work is done by the contractor or the departmental officials. This ultimately results in the State incurring huge loss. It is high time for the Government to evolve a mechanism to ensure that the parties to the contract acts in terms of the contract from the agreement stage itself.

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While the dispute as to which party is

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responsible for the delay cannot be decided in a writ petition under Article 226, it is to be ensured that the petitioner's contentions are considered dispassionately.

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The writ petition is hence disposed of, directing the petitioner to submit a detailed

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representation before the first respondent containing all his contentions and objection against the findings in Ext.P16. If such representation is filed within two weeks of receipt of a copy of this judgment, the same shall be considered by the competent officer in the first respondent and appropriate decision taken within one month, after affording an opportunity of hearing to the petitioner. Till such time, the coercive steps, if any proposed, shall be kept on hold. It is made clear that, the third respondent is at liberty to re-arrange the

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work awarded to the petitioner.

Sd/-

V.G.ARUN JUDGE

Scl/

W.P.(C) No.13370 of 2022

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APPENDIX OF WP(C) 13370/2022

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PETITIONER EXHIBI Exhibit P9	TS TRUE COPY OF THE LETTER DATED 11/05/2022 ISSUED BY THE SUPERINTENDING ENGINEER, PWD ROADS DIVISION, ALUVA.
Exhibit P10	TRUE COPY OF THE LETTER DATED 10/05/2022 PREFERRED BY THE PETITIONER.
Exhibit P1	TRUE COPY OF THE LETTER DATED 13.08.2021 ISSUED BY THE 2ND RESPONDENT TOT HE PETITIONER ALONG WITH THE ITEM RATE BOQ.
Exhibit P2	TRUE COPY OF ACKNOWLEDGEMENT FORM OF HANDING OVER OF SITE TOT HE CONTRACTOR DATED 06.09.2021.
Exhibit P3	TRUE COPY OF THE LETTER DATED 3.2.2022 SUBMITTED BY T HE PETITIONER TO THE 2ND RESPONDENT SUPERINTENDING ENGINEER.
Exhibit P4	TRUE COPY OF THE LETTER DATED 7.2.2022 OF THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit P5	TRUE COPY OF THE LETTER DATED 29.03.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
RESPONDENT ANNEXU	RES
Annexure R2(c)-	A copy of the letter No.M2/1488/2020 dated 23.12.2021
Annexure R2(a)-	Extract of the Clause 72 of Part II
Annexure R2(h)-	Letter from the Assistant Engineer dated 19-04-2022 bearing no.M2/1488/2020
Annexure R2(a)-	Extract of the Clause 72 of Part II
Annexure R2(h)-	Letter from the Assistant Engineer dated 19-04-2022 bearing no.M2/1488/2020
Annexure R2(c)-A	copy of the letter No.M2/1488/2020 dated 23.12.2021
Annexure R2(c)-	A copy of the letter No.M2/1488/2020 dated 23.12.2021

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Annexure R2(h)-	Letter from the Assistant Engineer dated 19-04-2022 bearing no.M2/1488/2020
Annexure R2(a)-	Extract of the Clause 72 of Part II
Annexure R2(c)-	A copy of the letter No.M2/1488/2020 dated 23.12.2021
Annexure R2(a)-	Extract of the Clause 72 of Part II
Annexure R2(h)-	Letter from the Assistant Engineer dated 19-04-2022 bearing no.M2/1488/2020
PETITIONER EXHIBI	TS
Exhibit P9	TRUE COPY OF THE RELEVANT PAGE OF KERALA PUBLIC WORKS DEPARTMENT MANUAL
Exhibit P10	TRUE COPY OF THE ORDER ISSUED BY THE SUPERINTENDING ENGINEER DATED 26/04/2021, APPROVING THE INITIAL LEVEL PROPOSALS FOR THEUMBOOR THOMMANA PUTHENCHIRA ROAD
Exhibit P11	TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER PWD ROAD DIVISION THRISSUR DATED 30/05/2022
Exhibit P12	TRUE COPY OF THE PERFORMA FOR ISSUING COMPLETION CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER, PWD ROAD DIVISION THRISSUR
Exhibit P13	TRUE COPY OF THE PRESCRIPTION ISSUED TO THE PETITIONER DATED 09.06.2022.
Exhibit P14	TRUE COPY OF THE RECEIPT OF MEDICINES PURCHASED BY THE PETITIONER DATED 09.06.2022.
Exhibit P15	TRUE COPY OF THE MINUTES OF GOOGLE MEETING DATED 20.06.2022 OF THE SUPERINTENDING ENGINEER.
Exhibit P16	TRUE COPY OF THE ORDER DATED 21.06.2022 OF THE SUPERINTENDING ENGINEER.
Exhibit P18	TRUE COPY OF THE LETTER DATED 09.06.2022 ISSUED BY THE PUBLIC INFORMATION OFFICER, OFFICE OF THE SUPERINTENDING ENGINEER.
Exhibit P19	TRUE COPY OF THE LETTER DATED

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14/07/2022 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE ASSISTANT EXECUTIVE ENGINEER, PWD

P.a.Mohammed Rafi v. State of Kerala

Case brief

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P.a.Mohammed Rafi v. State of Kerala

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