Dismissed

Mohammed Nihas C.C v. State of Kerala

Kerala HC22 Jun 2022WP(C)/5948/2021

Case brief

AI extract

What is this about?

This order resolves a writ petition concerning the measurement of works executed by a contractor under a PWD contract. The court directed the second respondent to depute a different Assistant Engineer to conduct a fresh measurement in the petitioner's presence, with cross-checking by the Assistant Executive Engineer within three months.

What did the court decide?

Directed the second respondent to depute an Assistant Engineer of his choice to conduct a fresh measurement in the petitioner's presence, to be cross-checked by the Assistant Executive Engineer, with

Mohammed Nihas C.C Vs State of Kerala — Property and Title | 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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WEDNESDAY, THE 22ND DAY OF JUNE 2022 / 1ST ASHADHA, 1944

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WP(C) NO. 5964 OF 2021

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PETITIONER/S

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MOHAMMED NIHAS C.C.
AGED 28 YEARS
S/O.JAMAL, P.W.D.CONTRACTOR, AL-HAYIR, 6TH MILE,
KADIRUR P.O., ERUVATH, KANNUR DISTRICT.
BY ADVS.
C.M.MOHAMMED IQUABAL
SRI.P.ABDUL NISHAD

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RESPONDENT/S:

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1 STATE OF KERALA

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REPRESENTED BY THE SECRETARY TO THE PUBLIC WORKS
DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN
- 695001.

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2 THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695 001.

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3 THE EXECUTIVE ENGINEER

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PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT, PIN
- 670 101.

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4 THE ASSISTANT EXECUTIVE ENGINEER

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PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT, PIN
- 670 101.

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5 THE ASSISTANT ENGINEER PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT, PIN - 670 101.

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BY ADV GOVERNMENT PLEADER

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OTHER PRESENT:

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GP P.S.APPU

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.06.2022, ALONG WITH WP(C).5956/2021, 5948/2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:

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[WP(C) Nos.5964/2021, 5956/2021, 5948/2021]

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2

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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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WEDNESDAY, THE 22ND DAY OF JUNE 2022 / 1ST ASHADHA, 1944
WP(C) NO. 5956 OF 2021

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PETITIONER/S:

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MOHAMMED NIHAS C.C., AGED 28 YEARS
S/O JAMAL, P.W.D. CONTRACTOR, AI-HAYIR,
6TH MILE, KADIRUR P.O., ERUVATH, KANNUR DISTRICT.
BY ADVS.
C.M.MOHAMMED IQUABAL
SMT.RAIHANATH T.H.

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE PUBLIC WORKS DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

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2 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN695001.

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3 THE EXECUTIVE ENGINEER PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT, PIN-670101.

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4 THE ASSISTANT EXECUTIVE ENGINEER, PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT, PIN-670101.

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5 THE ASSISTANT ENGINEER PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT. PIN-370101.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.06.2022, ALONG WITH WP(C).5964/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶36

[WP(C) Nos.5964/2021, 5956/2021, 5948/2021]

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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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WEDNESDAY, THE 22ND DAY OF JUNE 2022 / 1ST ASHADHA, 1944
WP(C) NO. 5948 OF 2021

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PETITIONER/S:

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MOHAMMED NIHAS C.C

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AGED 28 YEARS
S/O.JAMAL, P.W.D CONTRACTOR, AL-HAYIR, 6TH MILE,
KADIRUR P.O., ERUVATH, KANNUR DISTRICT.
BY ADV C.M.MOHAMMED IQUABAL

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RESPONDENT/S:

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1 STATE OF KERALA REP.BY THE SECRETARY TO THE PUBLIC WORKS DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001.

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2 THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM PIN 695 001

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3 THE EXECUTIVE ENGINEER PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT, PIN 670 101

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4 THE ASSISTANT EXECUTIVE ENGINEER PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT, PIN 670 101

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5 THE ASSISTANT ENGINEER PWD BUILDING DIVISION, THALASSERY, KANNUR DISTRICT, PIN 670 101

¶51

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.06.2022, ALONG WITH WP(C).5964/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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[WP(C) Nos.5964/2021, 5956/2021, 5948/2021]
4

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JUDGMENT Dated this the 22^nd day of June, 2022 [WP(C) Nos.5964/2021, 5956/2021, 5948/2021]

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The controversy in these writ petitions centres around

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the measurement of the works executed by the petitioner pursuant to the award of contract by the Public Works Department. The petitioner alleges that failure in taking the measurement property, has resulted in the bill amount due to him being reduced substantially. It is alleged that the Assistant Engineer is responsible for the improper measurement and the Assistant Executive Engineer, did not consider the defects in the measurement.

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Learned Counsel for the petitioner submitted that in Ext.P12, the Chief Engineer has directed the Assistant Engineer, who originally recorded the measurements, to conduct a fresh inspection and has permitted the petitioner to point out the objectionable items. According to the learned Counsel, if the very same Assistant Engineer conducts the measurement, he will not

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[WP(C) Nos.5964/2021, 5956/2021, 5948/2021] 5

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deviate from his original measurements and so the direction for fresh measurement will serve no purpose. It is suggested that an officer from a different wing of the Public Works Department, or atleast an officer superior to the Assistant Engineer, should be directed to conduct the enquiry.

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Learned Government Pleader submitted that the measurements were taken pursuant to the direction in Ext.P11 judgment. The measurements were taken following the prescribed method and the petitioner was not able to point out any of the objectionable items. If another officer is deputed for measurement, that may effect the morale of the officer took the original measurement.

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Having heard the learned Counsel on either side, I am of the opinion that the controversy can be resolved by directing another Assistant Engineer chosen by the Chief Engineer to conduct the measurement. I make it clear that the above direction is issued to resolve the controversy and not became the measurements taken by the Assistant

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[WP(C) Nos.5964/2021, 5956/2021, 5948/2021] 6

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Engineer is found to be wrong.

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The Writ Petition is hence disposed of, directing the second respondent to depute an Assistant Engineer of his choice to conduct the measurement in the petitioner’s presence. The petitioner will be at liberty to point out the objectionable items, which the officer conducting the measurement shall record. The measurements thus prepared shall be crosschecked by the Assistant Executive Engineer. Thereupon the bill shall be forwarded to the appropriate authority. The whole process shall be completed and eligible amount sanctioned within three months of receipt of a copy of this judgment.

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This Writ Petition is ordered accordingly.

Sd/-

V.G.ARUN JUDGE

RK

[WP(C) Nos.5964/2021, 5956/2021, 5948/2021] 7

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APPENDIX OF WP(C) 5956/2021

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`PETITIONER EXHI` `EXHIBIT P1`	`BITS` `THE TRUE COPY OF THE CONTRACTOR'S` `LICENSE ISSUED BY THE PUBLIC WORKS` `DEPARTMENT DATED 5/2019.`
`EXHIBIT P2`	`THE TRUE COPY OF THE COMMUNICATION` `ISSUED BY THE 3RD RESPONDENT DATED` `19/2/2019.`
`EXHIBIT P3`	`THE TRUE COPY OF THE COMMUNICATION` `ISSUED BY THE 3RD RESPONDENT DATED` `08/03/2019.`
`EXHIBIT P4`	`THE TRUE COPY OF THE SCHEDULE OF THE` `AGREEMENT ATTACHED WITH EXT.P3` `COMMUNICATION DATED 8/3/2019.`
`EXHIBIT P5`	`THE TRUE COPY OF THE SITE HAND OVER` `MEMO DATED 8/3/2019.`
`EXHIBIT P6`	`THE TRUE COPY OF THE COMPLETION` `CERTIFICATE ISSUED BY THE 5TH` `RESPONDENT DATED NIL.`
`EXHIBIT P7`	`THE TRUE COPY OF THE PROFORMA FOR` `COMPLETION CERTIFICATE OF WORK ISSUED` `BY THE 5TH RESPONDENT DATED 30.12.2019.`
`EXHIBIT P8`	`THE TRUE COPY OF THE COMMUNICATION` `ISSUED BY THE 5TH RESPONDENT DATED` `22.06.2020.`
`EXHIBIT P9`	`THE TRUE COPY OF THE FINAL BILL` `SUBMITTED BY THE PETITIONER DATED NIL.`
`EXHIBIT P10`	`THE TRUE COPY OF THE REPRESENTATION` `SUBMITTED BY THE PETITIONER BEFORE THE` `2ND RESPONDENT DATED 15/08/2020.`
`EXHIBIT P11`	`THE TRUE COPY OF THE JUDGMENT IN WPC` `NO. 15584/2020 OF THIS HON'BLE COURT` `DATED 20.08.2020.`
`EXHIBIT P12`	`THE TRUE COPY OF THE ORDER ISSUED BY` `THE 2ND RESPONDENT DATED 15.12.2020.`

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[WP(C) Nos.5964/2021, 5956/2021, 5948/2021] 8

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APPENDIX OF WP(C) 5948/2021

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PETITIONER EXHIBITS

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`EXHIBIT P1`	`THE TRUE` `LICENSE I` `DEPARTMEN`	`COPY` `SSUE` `T DA`	`OF` `D BY` `TED`	`THE CONTRACTOR'S` `PUBLIC WORKS` `5/2019`
`EXHIBIT P2`	`THE TRUE` `ISSUED BY` `21.2.2018`	`COPY` `THE`	`OF` `3RD`	`THE COMMUNICATION` `RESPONDENT DATED`
`EXHIBIT P3`	`THE TRUE` `ISSUED BY` `6.3.2018`	`COPY` `THE`	`OF` `3RD`	`THE COMMUNICATION` `RESPONDENT DATED`
`EXHIBIT P4`	`TRUE COPY` `AGREEMENT` `COMMUNICA`	`OF` `ATT` `TION`	`THE` `ACHE` `DAT`	`SCHEDULE OF THE` `D WITH EXT.P3` `ED 6.3.2018`
`EXHIBIT P5`	`THE TRUE` `CERTIFICA` `RESPONDEN`	`COPY` `TE I` `T DA`	`OF` `SSUE` `TED`	`THE COMPLETION` `D BY THE 5TH` `NIL.`
`EXHIBIT P6`	`THE TRUE` `COMPLETIO` `BY THE 5T`	`COPY` `N CE` `H RE`	`OF` `RTIF` `SPON`	`THE PROFORMA FOR` `ICATE OF WORK ISSUED` `DENT DATED 4.12.2018`
`EXHIBIT P7`	`THE TRUE` `ISSUED BY` `25.1.2020`	`COPY` `THE`	`OF` `5TH`	`THE COMMUNICATION` `RESPONDENT DATED`
`EXHIBIT P8`	`THE TRUE` `SUBMITTED`	`COPY` `BY`	`OF` `THE`	`THE FINAL BILL` `PETITIONER DATED NIL.`
`EXHIBIT P9`	`THE TRUE` `TO THE FI`	`COPY` `NAL`	`OF` `BILL`	`THE PROFORMA ATTACHED` `DATED NIL`
`EXHIBIT P10`	`THE TRUE` `SUBMITTED` `2ND RESPO`	`COPY` `BY` `NDEN`	`OF` `THE` `T DA`	`THE REPRESENTATION` `PETITIONER BEFORE THE` `TED 15.8.2020`
`EXHIBIT P11`	`THE TRUE` `(C) NO.15` `DATED 20.`	`COPY` `949/` `8.20`	`OF` `2020` `20`	`THE JUDGMENT IN W.P.` `OF THIS HON'BLE COURT`
`EXHIBIT P12`	`THE TRUE` `THE 2ND R`	`COPY` `ESPO`	`OF` `NDEN`	`THE ORDER ISSUED BY` `T DATED 15.12.2020`

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[WP(C) Nos.5964/2021, 5956/2021, 5948/2021] 9

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APPENDIX OF WP(C) 5964/2021

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PETITIONER EXHIBITS

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`EXHIBIT P1`	`THE TRUE COPY OF` `LICENSE ISSUED BY` `DEPARTMENT DATED`	`THE CONTRACTOR'S` `PUBLIC WORKS` `5/2019.`
`EXHIBIT P2`	`THE TRUE COPY OF`	`THE COMMUNICATION`
	`ISSUED BY THE 3RD` `7/3/2018.`	`RESPONDENT DATED`
`EXHIBIT P3`	`THE TRUE COPY OF` `ISSUED BY THE 3RD` `27/3/2018.`	`THE COMMUNICATION` `RESPONDENT DATED`
`EXHIBIT P4`	`THE TRUE COPY OF` `AGREEMENT ATTACHE` `COMMUNICATION DAT`	`THE SCHEDULE OF` `D WITH EXT.P3` `ED 27/3/2018.`
`EXHIBIT P5`	`THE TRUE COPY OF` `CERTIFICATE ISSUE` `RESPONDENT DATED`	`THE COMPLETION` `D BY THE 5TH` `NIL.`
`EXHIBIT P6`	`THE TRUE COPY OF` `COMPLETION CERTIF` `BY THE 5TH RESPON`	`THE PROFORMA FOR` `ICATE OF WORK ISSUED` `DENT DATED 20/5/2019.`
`EXHIBIT P7`	`THE TRUE COPY OF` `ISSUED BY THE 5TH` `31/1/2020.`	`THE COMMUNICATION` `RESPONDENT DATED`
`EXHIBIT P8`	`THE TRUE COPY OF` `SUBMITTED BY THE`	`THE FINAL BILL` `PETITIONER DATED NIL.`
`EXHIBIT P9`	`THE TRUE COPY OF` `TO THE FINAL BILL`	`THE PROFORMA ATTACHED` `DATED NIL.`
`EXHIBIT P10`	`THE TRUE COPY OF` `SUBMITTED BY THE` `2ND RESPONDENT DA`	`THE REPRESENTATION` `PETITIONER BEFORE THE` `TED 15/8/2020.`
`EXHIBIT P11`	`THE TRUE COPY OF` `NO.15580/2020 OF` `DATED 20/8/2020.`	`THE JUDGMENT IN WP(C)` `THIS HON'BLE COURT`
`EXHIBIT P12`	`THE TRUE COPY OF` `THE 2ND RESPONDEN`	`THE ORDER ISSUED BY` `T DATED 15/12/2020.`

Mohammed Nihas C.C v. State of Kerala

Case brief

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What did the court decide?

Mohammed Nihas C.C v. State of Kerala

Case brief

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