Dismissed

Fayis M.D. v. Secretary to Government

Kerala HC2 Feb 2022WP(C)/396/2022

Case brief

AI extract

What is this about?

The Court dismissed a writ petition seeking to quash a termination order and retender notification for public works. The petitioner, a contractor, alleged arbitrary termination due to delays caused by civil disturbances and lack of revised estimates, which the Court rejected.

What did the court decide?

The writ petition seeking to quash the termination order and direct the return of the security deposit was dismissed.

Fayis M.D. Vs Secretary to Government — Specific Performance | 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 N.NAGARESH

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WEDNESDAY, THE 2^ND DAY OF FEBRUARY 2022/13TH MAGHA, 1943

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WP(C) NO. 396 OF 2022

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PETITIONER:

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FAYIS M.D. AGED 39 YEARS S/O.M.D.ABDULLA, P.W.D.CONTRACTOR, BERKKA HOUSE, CHENGALA P.O., KASARGOD - 686 605.

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BY ADV K.A.MANZOOR ALI

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RESPONDENTS:

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1 SECRETARY TO GOVERNMENT

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PUBLIC WORKS (PS) DEPARTMENT, THIRUVANANTHAPURAM - 695 121.

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2 THE CHIEF ENGINEER (ROAD) PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM - 695 001.

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3 THE SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT, KOZHIKODE - 673 647.

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4 EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, NIRATH SECTION, PERAMBRA, PIN - 673 525.

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5 ASSISTANT ENGINEER PUBLIC WORKS DEPARTMENT, NIRATH SECTION, PERAMBRA, PIN - 673 525.

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SRI.K.V.MANOJKUMAR, SR.GOVT. PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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N. NAGARESH, J.

W.P.(C) No.396 of 2022

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Dated this the 2^nd day of February, 2022

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The petitioner, who is a PWD Contractor, has approached this Court seeking to quash Exts.P14 order and Ext.P16 tender and to direct the 3^rd respondent to return the Security Deposit made by the petitioner before the 3^rd respondent without delay and without deducting any amount including the risk and cost, in the interest of justice. The petitioner has also sought for certain other incidental reliefs. 2. The petitioner states that he was awarded with the improvement work of Vadakkumpad-VanchipparaGopurathilidam Road between 0/000 and 3/300 under the control of the 3^rd respondent-Superintending Engineer, PWD. The Work Agreement was executed on 10.12.2019.

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The worksite was handed over on 19.12.2019. The work had to be completed on or before 18.08.2020. The petitioner states that the original estimate was for constructing the road of a width of 3.8 metres. When the work was about to start, the local residents and beneficiaries demanded the authorities to have 5.5 metres tarring width, with 8 metres ROW. As there was no official communication in this regard, the work could not be started.

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The petitioner on 16.07.2020, requested the 5^th respondent to take action for removal of electric poles. The issues were not resolved. Later, the period of work was extended up to 30.04.2021. As there was no revised proposal, the petitioner could not start the work. In the meanwhile, General Elections were declared and the District Collector required to stop all works. Ext.P1 letter was issued on 15.03.2021. The Assistant Executive Engineer, however, issued Ext.P2 letter dated 24.03.2021 to the petitioner threatening that he would recommend legal action for failure to complete the work.

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The petitioner states that later, the Changaroth Grama Panchayat decided to enhance the tarring width of the road to 5.5 metres. The said decision was taken at the intervention of the road beneficiaries and the local MLA. Yet, the issue was not finalised. On 23.07.2021, by Ext.P3, the petitioner informed the 5^th respondent that he is willing to construct the road with 3.5 metres width but the local residents are not permitting to do the work. The petitioner expressed his inability to do the work in Ext.P3. The respondents but pressurised the petitioner to complete the work. The petitioner submitted Ext.P4 letter dated 06.08.2021 to the 4^th respondent requesting to extend the work till 20.04.2021 with fine. The petitioner could not start the work as the revised estimate was not sanctioned.

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The petitioner again submitted Ext.P9 letter dated 27.10.2021 requesting to extend the time to complete the work till 31.03.2022. To Ext.P9, the 3^rd respondent issued Ext.P10 letter dated 12.11.2021 stating that the work would be retendered at the risk and cost of the petitioner. The 4^th

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respondent as per Ext.P11, informed the 2^nd respondent that the work is in progress and revised estimate may be approved. The 3^rd respondent, however, unilaterally terminated the contract at the risk and cost of the petitioner as per Ext.P14 communication dated 04.12.2021. The petitioner submitted Ext.P15 appeal dated 06.12.2021 to the 2^nd respondent. Without considering Ext.P15 appeal, Ext.P16 re-tender notification was published on 05.01.2022.

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The learned counsel for the petitioner argued that initially the work could not be commenced due to the obstructions made by beneficiaries of the road. Covid-19 lockdown was also imposed during this time. The work was resumed in July, 2021. But, by then, the Grama Panchayat passed a resolution recommending to widen the road to 5.5 metres. Apart from these uncertainties, utilities were not removed from the worksite. In the meanwhile, the work could not be proceeded with from 12.03.2021 to 07.04.2021 due to general elections.

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W.P.(C) No.396/2022

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The learned counsel for the petitioner pointed out

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that even the communications between the respondents would establish that there was a proposal for widening the road. The issue was not finalised and revised estimate was not approved. The petitioner had mobilised all requisite men and material to carry out the work. The work could not be proceeded with for the aforesaid reasons. The petitioner had brought to the notice of the respondents the afore facts. The respondents did not take any decision. The contract with the petitioner was arbitrarily terminated at the risk and cost of the petitioner. The termination of the contract at the risk and cost of the petitioner and the re-tendering of the work are highly illegal, arbitrary and unsustainable.

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Respondents 3 and 5 filed a counter affidavit contesting the contentions of the petitioner. They submitted that Ext.P14 communication would show the circumstances under which the agreement had to be cancelled. The petitioner was lethargic from the very beginning. The petitioner even delayed execution of agreement. The time

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granted for completion of the work was extended imposing fine, which obviously would show that the petitioner was at fault.

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It was the duty of the petitioner to take initial levels. The petitioner did not take any steps to take initial levels even after six months. The petitioner cannot be heard to complain that utilities were not shifted. As per the agreement and the PWD Manual, shifting of utilities is a paid item and it is the duty of the contractor to take initiatives for the same. The agreement was executed on 10.12.2019. The work had to be completed within eight months. The execution of the work ought to have been completed by 18.08.2020. The petitioner was granted extension more than once. The contract was terminated only on 04.12.2021. In the facts and circumstances of the case, termination of the agreement at the risk and cost of the petitioner is amply justified, contended the Senior Government Pleader.

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Heard the learned counsel for the petitioner and the learned Senior Government Pleader representing the

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respondents.

The issue arising in the writ petition is as to who is responsible for the delay in executing the work. Admittedly, the worksite was handed over to the petitioner on 19.12.2019. It is the allegation of the petitioner that beneficiaries of the road and local residents obstructed the work. The petitioner would also take umbrage under the Covid-19 lockdown for non-execution of the work. The petitioner would, however, submit that the work was resumed in July, 2021. Thereafter, the work had to be stopped in view of the resolution of the Grama Panchayat recommending widening of the road.

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The said contention of the petitioner cannot be accepted. The petitioner had executed agreement with the respondents. The respondents have been time and again requiring the petitioner to proceed with the work. Any decision taken by the beneficiaries of the road or the local MLA or any demand made by them for widening the road, cannot be an excuse for the petitioner not to proceed with the

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work. As long as the respondents have not required the petitioner to stop the work, the petitioner ought to have proceeded with the work. The petitioner also cannot rely on any resolution passed by the Panchayat for widening the road or on any interdepartmental communications between the respondents on the proposed revision of estimates, for not carrying out the work.

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It is true that elections were declared in the

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meanwhile and the petitioner could not have proceeded with the work from 12.03.2021 to 07.04.2021. The said period is less than three months. The petitioner has delayed work by more than 15 months. The petitioner was granted extension of time for completion of the works. Yet, the petitioner did not complete the work. A perusal of the pleadings in the writ petition and the documents made available, would amply show that the petitioner was not at all vigilant in executing the work within the time stipulated in the contract or even within the extended time.

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In the facts and circumstances of the case, this

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Court finds no reason to interfere with Ext.P14 or Ext.P16.

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The writ petition is devoid of any merit and it is hence

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dismissed.

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Sd/-

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N. NAGARESH, JUDGE

aks/31.01.2022

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APPENDIX OF WP(C) 396/2022

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PETITIONER'S EXHIBITS

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Exhibit P1	TRUE COPY OF THE ISSUED BY THE 5TH	LETTER DATED 15/3/21 RESPONDENT.
Exhibit P2	TRUE COPY OF THE ISSUED BY THE ENGINEER, KOZHIKO	LETTER DATED 24/3/21 ASSISTANT EXECUTIVE DE TO THE PETITIONER.
Exhibit P3	TRUE COPY OF 23/7/2021 ISSUED THE 3RD RESPONDEN	THE LETTER DATED BY THE PETITIONER TO T.
Exhibit P4	TRUE COPY OF THE SUBMITTED BY THE RESPONDENT.	LETTER DATED 6/8/2021 PETITIONER TO THE 4TH
Exhibit P5	TRUE COPY OF 12/8/2021 SEND B THE 3RD RESPONDEN	THE LETTER DATED Y THE PETITIONER TO T.
Exhibit P6	TRUE COPY OF THE ISSUED TO THE PE RESPONDENT.	LETTER DATED 2/9/2021 TITIONER BY THE 5TH
Exhibit P7	TRUE COPY OF 13/10/2021 SEND B	THE LETTER DATED Y THE 5TH RESPONDENT.
Exhibit P8	TRUE COPY OF 20/10/2021 ISSU RESPONDENT TO THE	THE LETTER DATED ED BY THE 1ST 2ND RESPONDENT.
Exhibit P9	TRUE COPY OF 27/10/2021 SEND T BY THE PETITIONER	THE REQUEST DATED O THE 3RD RESPONDENT .
Exhibit P10	TRUE COPY OF 12/11/2021 ISSU RESPONDENT TO THE	THE LETTER DATED ED BY THE 3RD PETITIONER.
Exhibit P11	TRUE COPY OF 20/11/2021 SEND T BY THE 4TH RESPON	THE LETTER DATED O THE 2ND RESPONDENT DENT.
Exhibit P12	TRUE COPY OF 20/11/2021 ISSUED THE 3RD RESPONDEN	THE LETTER DATED BY THE PETITIONER TO T.
Exhibit P13	TRUE COPY OF	THE LETTER DATED
	27/11/2021 ISSUED THE 3RD RESPONDEN	BY THE PETITIONER TO T.

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Exhibit P14 TRUE COPY OF THE PROCEEDINGS DATED 4/12/2021 OF THE 3RD RESPONDENT. Exhibit P15 TRUE COPY OF THE REVIEW PETITION DATED 6/12/2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P16 TRUE COPY OF THE TENDER DATED 05/01/2022. P17 COPY OF JUDGMENT IN WPC.5972/2016 DT 20.1.2021

Fayis M.D. v. Secretary to Government

Case brief

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What did the court decide?

Fayis M.D. v. Secretary to Government

Case brief

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