Disposed

Shamsudheen A.I v. the Superintending Engineer

Kerala HC5 Jan 2022WP(C)/27308/2021

Case brief

AI extract

What is this about?

Petitioner sought mandamus for expedited completion of a bridge reconstruction project and provision of a temporary service road. The Court examined the delays caused by floods, lockdowns, and cyclones, noting partial progress and an interim footover bridge, ultimately disposing the petition.

What did the court decide?

Directed respondent No.5 (contractor) to complete the bridge work as agreed and make it motorable to the public.

Shamsudheen A.I Vs the Superintending Engineer — Kerala HC (2022) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 5^TH DAY OF JANUARY 2022 / 15TH POUSHA, 1943

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WP(C) NO. 27308 OF 2021

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PETITIONER:

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SHAMSUDHEEN A.I

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AGED 56 YEARS, S/O M.K. IBRAHIM, AMBALATH VEETIL, PALUVAI ROAD, PAVARATTY.P.O THRISSUR, KERALA-680 507. BY ADVS. JOSEPH V. GREGORY NAZRIN BANU

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RESPONDENTS:

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1 THE SUPERINTENDING ENGINEER, OFFICER OF SUPERINTENDING ENGINEER, PWD BRIDGES NORTH CIRCLE PWD COMPLEX, MANACHIRA, KOZHIKODE-673001.

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2 THE EXECUTIVE ENGINEER, PWD BRIDGES DIVISION, EDAPPALLY, ERNAKULAM-682 024

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3 THE ASSISTANT EXECUTIVE ENGINEER, PWD SUB DIVISION, THRISSUR-680 020

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4 THE ASSISTANT ENGINEER, PWD BRIDGES SECTION, CHAVAKKAD, THRISSUR 680 506

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5 SHRI. M.S.ABDUL HAKEEM, PWD CONTRACTOR, QUADRIYA MANZIL, MAVA.P.O.CHENGALA, KASARGOD-671 123

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SRI. K.P.HARISH, SR. GOVT.PLEADER FOR R1 TO R4

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C).27308/2021

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J U D G M E N T

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Dated this the 5^th day of January, 2022

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S. Manikumar, CJ.

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Petitioner has sought for a mandamus directing the Superintending Engineer, PWD Bridges North Circle, Kozhikode/1^st respondent, Executive engineer, PWD Bridges Division, Ernakulam/2^nd respondent, Assistant Executive Engineer, PWD Sub Division, Thrissur/3^rd respondent and Assistant Engineer PWD Bridges Section, Chavakkad/4^th respondent to ensure that work of destruction and reconstruction of the bridge is completed as expeditiously as possible through the 5^th respondent contractor.

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Petitioner has sought for a further mandamus directing respondents 1 to 5 to forthwith ensure and provide for a temporary service road for passage of vehicles and people over the stream as mandated under Sl. No.1.03 & 1.04 of the Agreement Schedule in Exhibit P4.

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Petitioner has sought for a direction to respondents 1 to 4 to ensure that a suitable alternative road or way is constructed to enable

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W.P(C).27308/2021

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movement of vehicles to have easy and quick access.

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Short facts leading to filing of writ petition are as under:

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The town of Peruvallor is situated within the local limits of Mullassery Grama Panchayat. The town is divided into two by a stream running in the North-South direction. For easy and quick access, a bridge had been constructed for residents on the West side to reach Thrissur town and other adjoining areas.

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Due to the dilapidated condition of the bridge, a notice inviting tender was raised by the Respondent No.1 on 25.06.2020 bearing Tender No. PWD/2020-2021/14281/BRCKKD. After scrutinizing various bids, bid of the Respondent No.5 was accepted on 17:08.2020. Thereafter the agreement was signed on 09.08.2020 and the site was handed over and work commenced on 17.09.2020. The tender work included demolition of the old bridge, providing temporary service road for passage of persons and vehicles, reconstruction of new bridge and maintenance of the bridge for a period stipulated under the contract.

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Finally, after 6 months after the commencement on 10.03.2021, a temporary service road was provided for passage of light motor vehicles and people over the stream and on 12.03.2021 the

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W.P(C).27308/2021

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demolition of the old bridge commenced. But unfortunately, with the spike in covid cases, the panchayat went into triple lockdown in April and complete lockdown in May. With the impending monsoon and due to the aftermath of cyclone Tauktae which created heavy flooding in and around the area, the service road was removed on orders of the District Collector on 08.06.2021. Considering the above circumstances, an extension of the work upto 31.03.2022 was granted to Respondent No.5. Thereafter the re-commencement of the work started only in the first week of July.

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Though the contract included construction of a temporary service road for movement of people and vehicles, no such work was forthcoming from the side of Respondent No.5. Finally with the intervention of the local MLA, a footover bridge was constructed on 10.09.2021 using girders and steel rails for passage of over the river. To the utter surprise, with less than 5 months for completion of the work, the respondent No.5 has failed to upkeep the essence of the contract failing to comply with the requirements mandated under it. Adding to the miseries of the residents in the area, with unlock mechanisms and restarting of all activities in the State, the slow or next to nil rate of the

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W.P(C).27308/2021

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construction work is adversely affecting the life of the residents and the petitioner in commuting for their daily needs and other purposes.

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Pursuant to the directions, Executive Engineer, PWD Bridges Division, Ernakulam/2^nd respondent has filed a statement stating that the completion of bridge work woud be made by the end of March 2022 and that the same would be opened to traffic. As regards temporary service roads, it is further stated that steps has been taken to construct service raod. Material collection is in progress at the site.

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Details of the statement filed by Executive Engineer, PWD Bridges Division, Ernakulam/2^nd respondent are as hereunder:

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"3. It is submitted that the proposal is to reconstruct the aged and damaged existing bridge situated across Parapuzha Canal in the Aamala Nagar Pavaraty road at chainage 8/400 in Manalur LAC based on the high flood in the year 2018. Bridge proposed with 3 spans each having 12m center to center distance with total length 36m, width of bridge is 11.5m with 7.5m carriage way and 1.5m width footpath on both side including kerb stones, handrails etc. Administrative sanction for the said work got vide order number GO (Rt) No. 1146/2019/PWD dated 25/09/2019 for an amount Rs.529 Lakhs. Consequently Technical sanction accorded vides order number BRDnEklm/2020-2021/BR/2019/4401 dated 12/06/2020 for an amount Rs.387 Lakhs. After e-tender was invited and

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W.P(C).27308/2021

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Sri.M.S.Abdhul Hakkem, Quadriya Manzil, Mara P.O., Chengal, Kasargod had been approved as the contractor with agreed PAC amount Rs.301,89,624.84/- (Three crores one lakh Eighty nine Thousand Six Hundred and Twentyfour Rupees and Eightyfour Paise). The agreement executed vide No. SE(BK) 11/2020-21 dated 09/09/2020. Site for the said work has been handed over to the contractor on 18/09/2020 with 12 months completion period. Upon that a temporary earthen road constructed and opened for light vehicles and pedestrians on 10/03/2021. After the existing bridge dismantling started on 12/09/2021 and finished within a week. Piling foundation works started on 26/03/2021 and was progressing well

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However due to the impact of Tauktne Cyclon during May 2021 high intensity rain obtained all over the district/state. This leads to heavy runoff water through the collective Canal Parapuzha. Hence the water level at the upstream side unexpectedly increased to an extreme situation. So that upstream terrain of canal, mostly the lower portion in Elavally Gramapanchayath became flooded. On the request of Elavally Gramapanchayath president, initially small portion of earthen service road opened to wash out the unexpectedly stored runoff water. Due to the continuously happening rain and runoff water, the water level at the upstream side of canal not reduced effectively. In this situation, on forceful request of Elavally Gramapanchayath President, as part of Disaster Management Thrissur District collector directed to dismantle the entire earthen road. And it was executed on 08/06/2021 on the presence and knowledge of Chavakkad Thahsildar. Hence the

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W.P(C).27308/2021

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movement across the canal interrupted. At this situation the traffic were diverted through panchayath road Anaakara - Kokkur in Elavally Gramapanchayath and Mullassery Gramapanchayath.

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But on the continuous request of surrounded people Manalur MLA had been conducted a meeting at the Mullassery Block Panchayath for discussing about the reinstallation of service road. Since the heavy flow of water occurring, effort of reconstruction of earthen service road became very difficult and technically not practical. In this situation Manalur MLA again conducted a meeting at the Mullassery Block Panchayath and decision was taken to implement a steel foot over bridge for the ease movement of pedestrian across the Canal. So the implementation of the same were done and opened to the public on 10/09/2021.

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Even though, the possibility for reconstructing the temporary earthen road was under consideration. So that the Executive Engineer, Assistant Executive Engineer were visited the site on 24/11/2021 upon the direction of Manalur MLA and give direction to the contractor to reconstruct the earthen service road on getting approval from higher authority for the same. The report for the same was submitted to the higher authority for getting approval and awaiting sanction.

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Now the bridge work is progressing in swiftly manner. Total 12 numbers of Pile work is in the estimate, in which all the pile casting work completely executed. Among 4 numbers of pie cap and pier wall, 3 Numbers are completed and the last one is

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W.P(C).27308/2021

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ready to execute and finish at the end of December 2021. Continuously, solid slab for the bridge and approach road can be completed without delay. Hence the proper completion of bridge work can be finished at the end of March 2022 and can be opened to traffic.

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Besides, it is submitted that the Agreement Schedule of the above work has a provision for the construction of one temporary service road/ ring bund for providing traffic and public till the completion of the bridge work. As per agreement condition, payment for one ring bund can only admissible by the agreement authority for additional construction prior sanction of Chief Technical Examiner, Finance inspection wing is essential. Hence Request send to CTE for sanction vide this office letter No: A3-1725/2019 dated 03/12/2021. If the concurrence or sanction obtains from CTE, new service road/ ring bund can form and provide smooth traffic for public.

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Subsequently as per the discussion between MLA, Manalur and Chief Engineer, during the meeting dated 10.12.2021, it has been decided to construct a temporary service road expeditiously. Therefore steps has been taken to construct the service road. Material collection is progressing at site.

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There is no intention from the department side to hurt any person personally or any partiality or leniency to any particular person for their benefit is shown, but the intention is to execute the project with maximum safety and security for the people of the locality and all public utilizing the bridge."

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Going through the material on record, it could be seen that

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W.P(C).27308/2021

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steps are being taken for completion of the work and also to provide a

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service road.

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Placing on record the above, writ petition is disposed of directing respondent No.5 to complete the work, as averred and make it motorable to the public.

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Sd/S. Manikumar, Chief Justice

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Sd/Shaji P. Chaly, Judge

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sou.

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W.P(C).27308/2021

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APPENDIX OF WP(C) 27308/2021

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PETITIONER EXHIBITS

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EXHIBIT P1 THE TRUE COPY OF THE TERRAIN VIEW OF THE LOCATION AS SEEN THROUGH GOOGLE MAPS. EXHIBIT P2 THE TRUE COPY OF THE NOTICE INVITING TENDER DATED 25.06.2020 BY THE RESPONDENT NO.1. EXHIBIT P3 THE TRUE COPY OF THE ACCEPTANCE LETTER ISSUED TO THE 5TH RESPONDENT DATED 17.08.2020. EXHIBIT P4 THE TRUE COPY OF THE RELEVANT EXTRACTS OF AGREEMENT SCHEDULE AND CLAUSES UNDER GCC. EXHIBIT P5 THE TRUE COPY OF THE REPLY TO THE RTI FILED BY THE PETITIONER HIGHLIGHTING THE ACCEPTANCE DATE COMMENCEMENT DATE AND SCHEDULED COMPLETION DATE (ALONG WITH TRANSLATION) EXHIBIT P6 THE TRUE COPIES OF THE PHOTOGRAPHS DEPICTING THE FOOTBRIDGE CONSTRUCTED AND THE PRESENT STATUS OF THE CONSTRUCTION AS ON OCTOBER 2021.

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RESPONENT'S EXHIBITS

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ANNEXURE R3(a) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PROGRESS OF THE WORK.

Shamsudheen A.I v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

Shamsudheen A.I v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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