Writ petition filed by a timber contractor seeking extension of contract period suspended due to dispute with an Adivasi Union. Court directed forest authorities to consider the delay excuse and decide on extension without terminal risk.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 27TH DAY OF JUNE 2022 / 6TH ASHADHA, 1944
WP(C) NO. 4797 OF 2022
PETITIONER/S:
SURESH MATHEW,
AGED 60 YEARS
S/O. MATHEW, NEDUMCHIRAYIL HOUSE, S.H. MOUNT P.O.,
KOTTAYAM 686 006.
BY ADV M.C.JOHN
RESPONDENT/S:
1 THE CHIEF CONSERVATOR OF FOREST, OFFICE OF THE CHIEF CONSERVATOR, NORTHERN CIRCLE, KANNUR 670 0 01.2 THE DIVISIONAL FOREST OFFICER, OFFICE OF THE DIVISIONAL FOREST OFFICER, SOUTH WAYANAD DIVISION, KALPETTA, WAYANAD 673 121.3 THE RANGER FOREST OFFICER, FOREST RANGE OFFICE, CHETHLATH RANGE, PULPALLI, WAYANAD 673 579.4 THE ASSISTANT LABOR OFFICER, SULTHAN BATHERRY, WAYANAD 673 121.5 ADIVASI SAMYUKTHA THOZHILALI UNION, PULALPALLI, SULTHAN BATHERRY, WAYANAD, REPRESENTED BY ITS SECRETARY 673 579.6 SAMYUKTHA TIMBER LOADING AND UNLOADING UION, (BMS), PULPALLI, SULTHAN BATHERRY, WAYANAD, REPRESENTED BY SECRETARY 673 579. BY ADVS.ADVOCATE GENERAL OFFICE KERALA
SHRI.T.P.SAJAN, SPL. G.P. (FOREST)()
OTHER PRESENT:
GP RAJEEV JYOTHISH GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4797 OF 2022
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JUDGMENT
Dated this the 27th day of June, 2022
The petitioner was awarded the contract for extraction of timber from the dead and wind fallen trees by the side of Palakkolli – Udayakkara road within Pathiri Reserve forest in Chethalath Range. Ext.R2(a) agreement was executed on 6.7.2021 and the work has to be completed within nine months. The petitioner was not able to complete the work within the contract period. The explanation offered is that the area of operation, predominantly occupied by Adivasis and Tribes and the Adivasi Samyuktha Thozhilali Union, which is registered under the Head Load Workers Scheme, had raised unconscionable demand for loading and unloading of the dead and wind fallen timber. The petitioner was not permitted to do the loading and unloading work with his own workers. The issue was finally resolved through the intervention of the District Labour Officer. The petitioner is ready and willing to continue the work period of contract, which has expired, is extended by the respondents.
2.Adv. M.C John, learned counsel for the petitioner, drew attention to the interim order of this Court dated 24.3.2022,
WP(C) NO. 4797 OF 2022
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granting liberty to the petitioner to file an extension petition in accordance with Clause 26 of the Notice Inviting Tender with a direction to the Divisional Officer not to impose any penalty while entertaining the extension petition. Learned counsel pointed out that, in spite of the interim order, the request for extension was not considered.
3.Adv. T.P Sajan, learned Special Government Pleader submitted that the forest authorities are not aware of any dispute between the petitioner and Adhivasi Thozhilali Union. The forest officials were never made party to the conciliation proceedings also. According to the reports received from the site, after executing the agreement, no serious effort was taken by the petitioner to execute the work. The period of contract itself having expired, in the meanwhile, the question of extension does not arise.
4.Having heard the learned counsel on either side and having perused the documents, I find substance in the contention of the learned counsel for the petitioner that the delay in carrying out the work was due to reasons beyond the petitioner’s control. Ext.P12 evidences existence of a dispute between the petitioner and the Thozhilali Union and resolution of that dispute through conciliation. The above is a crucial aspect which has to be taken
WP(C) NO. 4797 OF 2022
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into account by the respondents while considering the petitioner’s request for extension in terms of the interim order dated 24.3.2022. Learned Special Government Pleader submits that the representation was not considered since the direction for the Divisional Forest Officer, who is not the appropriate authority, was directed to take a decision on the request for extension.
The 1st respondent shall consider Ext.P9 and to take an appropriate decision thereon, taking into account the petitioners explanation that delay in executing the work was due to the dispute and obstruction raised by the Adhivasi Union. The decision as to whether penalty is to be imposed while extending the period of contract is left to the discretion of the 1st respondent. It is made clear that, consideration of representation shall confined to the request for extension and shall not result in an order terminating the contract at the petitioner’s risk and cost.
Sd/V.G ARUN JUDGE
SJ
WP(C) NO. 4797 OF 2022
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APPENDIX OF WP(C) 4797/2022
PETITIONER EXHIBITSExhibit P1 |
TRUE COPY OF THE COMMUNICATION NO. BI-6114/18DATED 06.07.2021 FROM 2ND RESPONDENT. |
|---|---|
Exhibit P2 |
TRUE COPY OF THE IDENTITY CARD DATED27.10.2021 ISSUED TO ABHILASH. |
Exhibit P3 |
TRUE COPY OF THE AGREEMENT DATED 11.12.2021WITH UNION. |
Exhibit P4 |
TRUE COPY OF THE CONCILIATION NOTICE DATED20.12.2021 ISSUED BY THE 4TH RESPONDENT. |
Exhibit P5 |
TRUE COPY OF THE REPRESENTATION DATED15.01.2022 SUBMITTED BY 5TH RESPONDENT TO 4THRESPONDENT. |
Exhibit P6 |
TRUE COPY OF THE NOTICE NO, CI-613/17 DATED27.12.2021 ISSUED BY 3RD RESPONDENT TOPETITIONER. |
Exhibit P7 |
TRUE COPY OF THE REPLY DATED 04.01.2022ISSUED TO 3RD RESPONDENT |
EXHIBIT P8 |
TRUE COPY OF THE LETTER NO.A3-457/2022 DATED05.02.22 ISSUED BY THE FIRST RESPONDENTTRUE COPY OF THE REPRESENTATION DATED |
EXHIBIT P9 |
17/3/2022 SUBMITTED BY THE PETITIONER TO THE1ST RESPONDENT |
Exhibit P10 |
A TRUE COPY OF THE JUDGMENT DATED 05.04.2022IN W.P.C. NO.10257/2022 OF THIS HON'BLE COURT |
Exhibit P11 |
A TRUE COPY OF THE ORDER NO.P6-1385/22 DATED29.04.2022 |
A TRUE COPY OF THE NOTICE DATED 19.04.2022 |
|
Exhibit P12 |
ISSUED TO THE PARTIES CONCERNED BY THEDISTRICT LABOUR OFFICER, WAYANAD |
RESPONDENT EXHIBITS |
|
Annexure R2(A) |
TRUE COPY OF THE AGREEMENT NO.02/21-22 DATEDON 06.7.2021 |
1 issue framed by the court
Whether the petitioner's delay in executing the contract was due to reasons beyond control.
Suresh Mathew
Chief Conservator of Forest, Northern Circle, Kannur
Divisional Forest Officer, South Wayanad Division, Kalpetta
Ranger Forest Officer, Chethalath Range, Pulpalli
Assistant Labor Officer, Sulthan Batherry, Wayanad
Adivasi Samyuktha Thozhilali Union, Pulpalli, Sulthan Batherry, Wayanad
V.G. Arun
As recorded by the court registry
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