Disposed

Anniemol Lawrence v. State of Kerala

Kerala HC23 Feb 2022WP(C)/9613/2021

Case brief

AI extract

What is this about?

The petitioner challenged a bridge construction work order alleging corruption and illegal sub-contracting. The Court noted the contractor had admitted the violation and sought relief. Ruling that the authority must decide based on its own affidavit, the petition was disposed of by directing the Executive Engineer to take a finalized decision within a month.

What did the court decide?

The 5th respondent directed to take a decision based on affidavit averments within one month after giving hearing to parties.

Anniemol Lawrence Vs State of Kerala — Corruption | 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 P.V.KUNHIKRISHNAN

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WEDNESDAY, THE 23RD DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943
WP(C) NO. 9613 OF 2021

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PETITIONER/S:

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ANNIEMOL LAWRENCE
AGED 46 YEARS
W/O.LAWRENCE, PUTHENPURACKAL HOUSE, SOUTH
CHELLANAM P.O., GUNDUPARAMBU, KOCHI, PIN - 682
008.
BY ADVS.
B.PRAMOD
SMT.NAMITHA JYOTHISH

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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2 THE DISTRICT COLLECTOR COLLECTORATE, KAKKANAD, ERNAKULAM, PIN - 682 030.

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3 PALLURUTHY BLOCK PANCHAYAT MARUNNUKADA, AROOR - THOPPUMPADY ROAD, PALLURUTHY, KOCHI, KERALA - 682 006, REPRESENTED BY ITS SECRETARY.

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4 CHELLANAM GRAMA PANCHAYATH ANDIKKADAVU P.O., ERNAKULAM - 682 008, REPRESENTED BY ITS SECRETARY.

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5 THE EXECUTIVE ENGINEER LSGD DIVISION, KAKKANAD, ERNAKULAM, PIN - 682 030.

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6 THE ASST. EXECUTIVE ENGINEER LSGD DIVISION, PALLURUTHY BLOCK PANCHAYAT, MARUNNUKADA, AROOR - THOPPUMPADY RD., MARUNNUKADA, PALLURUTHY, KOCHI, KERALA - 682 006.

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7 SHABU M.K. MEPPULLY BUILDERS, 1ST FLOOR, VENKITESWARA ARCADE, SOUTH CHALAKKUDY - 680 307.

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8 ROSILY OUSEPH DIRECTOR, SPRINGFILED VILLAS AND APARTMENTS PVT.LTD., XVI/2591, 3RD FLOOR, SPRINGFILED AVENUE, ELAVOOR KAVALA, KARUKUTTY P.O., ANGAMALY, ERNAKULAM.

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W.P.(C).No.9613/2021

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9 BIJU JOHN S/O.JOHN, KALIPPARAMBIL HOUSE, NORTH CHELLANAM P.O., KOCHI - 682 008.

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10 ADDL K.P.PRASANTH, AGED 45 YEARS, S/O. PRASANNAN, KALATHITHARA HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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11 ADDL. P.N. SELVAN, AGED 36 YEARS, S/O. NARAYANAN, PUTHENCHIRAYIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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12 ADDL. SHEEJA SUNIL, AGED 38 YEARS, W/O. CHINNAPPAN, PERINGODE HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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13 ADDL. K.A. SASI, AGED 62 YEARS, S/O. ATHUMANI, KULATHITHARA HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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14 ADDL. MADHAVI, AGED 69 YEARS, W/O. KUNJAN, PATHAMCHIRAYIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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15 ADDL. SHABI M.R., AGED 46 YEARS, S/O. RAJAN, MANIYANGANAD HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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16 ADDL. SHAJAN T.R., AGED 44 YEARS, S/O.RAJAN, THAZCHAVALAPPIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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17 ADDL. K.P. SADHANANDAN, AGED 68 YEARS, S/O. PALAN, KANDATHIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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18 ADDL. RAMANI, AGED 70 YEARS, W/O. KUNJAPPAN, THAREPARAMBU HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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19 ADDL. OMANA, AGED 56 YEARS, W/O. PRAKASAN, KALATHITHARA HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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20 ADDL. SEVI, AGED 50 YEARS, S/O. JOSEPH, THOPPIPARAMBIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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21 ADDL. DEVASIKUTTY, AGED 54 YEARS, S/O. JOSEPH, THOPPIPARAMBIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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22 ADDL. MARY, AGED 69 YEARS, W/O. DEVASSY, KATTIKADU HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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23 ADDL. V.J. PETER,

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W.P.(C).No.9613/2021

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AGED 60 YEARS, S/O. JOSEPH, VILANGANADU HOUSE,
SOUTH CHELLANAM, KOCHI-682008.

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24 ADDL. JOSEPH, AGED 71 YEARS, S/O. ANTONY, PALLIPARAMBIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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25 ADDL. XAVIER, AGED 58 YEARS, S/O. NICHLAV, PALLIPARAMBIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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26 ADDL. JOSSEY, AGED 56 YEARS, S/O. JOSEPH, THOPPIPARAMBIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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27 ADDL. A.X. MATHEW, AGED 52 YEARS, S/O. ZAVIER, ARACKAL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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28 ADDL. V.R. PRADEEP, AGED 44 YEARS, S/O. RAMAN, VALIYAVEETTIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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29 ADDL. ANEESH, AGED 40 YEARS, S/O. ANURUDHAN, KALATHITHARA HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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30 V.P. PONNAPPAN, AGED 60 YEARS, S/O. PARAMU, VALIYAPRAMBIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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31 ADDL. HARIDAS, AGED 50 YEARS, S/O. PARAMU, VALIYAPARAMBIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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32 ADDL. ANTONY, AGED 59 YEARS, S/O. DEVASSEY, KATTEKKADU HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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33 ADDL. LAWRANCE, AGED 47 YEARS, S/O. KATHREENA, THAIKOOTTATHIL HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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34 ADDL. KARUMBI, AGED 64 YEARS, W/O. AYYAPPAN, KALATHITHARA HOUSE, SOUTH CHELLANAM, KOCHI-682008.

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35 ADDL. SANITHA V.P., AGED 36 YEARS, W/O. PONNAPPAN, VALIYAPARAMBIL HOUSE, SOUTH CHELLANAM, KOCHI-682008. (ADDITIONAL R10 TO R35 IMPLEADED AS PER ORDER DATED 15/07/2021 IN IA 3/2021 IN WPC NO.9613/2021) BY ADVS.

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W.P.(C).No.9613/2021

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K.L.JOSEPH
DINESH R.SHENOY
ADVOCATE GENERAL OFFICE KERALA
SRI.K.P.DANDAPANI (SR.)
SRI.T.O.XAVIER
M.T.SURESHKUMAR
SRI.MILLU DANDAPANI
SRI.PREMCHAND R.NAIR
EBIN MATHEW
P.ROHIT PREMANANDAN SHENOY
R.RENJITH

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OTHER PRESENT:

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SRI.K.V.MANOJ KUMAR, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.02.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P.(C).No.9613/2021

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.9613 of 2021

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Dated this the 23^rd day of February, 2022

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JUDGMENT

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This writ petition is filed with following prayers:

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i. Issue a writ of certiorari calling for the original of Ext P3 work order and quashing the same.

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ii. Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents 1 to 4 to cancel the project covered by Ext.P3 work order, Ext.P5 and Ext.P6 agreements of sub contract.

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iii. Issue a writ of mandamus or any other appropriate writ order or direction commanding respondents 1 to 2 to take necessary steps against respondent 5 to 9 for having engaged in corruption relating to the work covered by Ext P3 work order P5 and P6 agreements of sub contract.

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iv. Grant such other order as this Hon'ble court deems fit and necessary in the facts and circumstance of the case. (SIC)

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Petitioner is resident of ward No.XIV of the 4^th

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respondent Village Panchayat. Her residence is located on the

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W.P.(C).No.9613/2021

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eastern side of a canal by name “Vijayam Canal" and she gets access to the State Highway 66 (Coastal highway) which lies on the western side of the said canal, through a bridge constructed at a place by name Gunduparambu. According to the petitioner, the said bridge is an old and in a dilapidated condition. There arose a proposal for construction for bridge which is around 50 metres south of the said dilapidated bridge. The cost of the construction is met from the Legislative Assembly Constituency - Asset Development Scheme (LAC-ADS) as recommended by the MLA of Kochi Assembly Constituency. The administrative sanction for the said work was given by the 2^nd respondent, following which the 4^th respondent Panchayat passed Ext.P1 resolution to the effect that it does not have any objection to the construction of the bridge. Later vide Ext.P3, the contract for the work was awarded to the 7^th respondent for a sum of Rs 53,03,833/-, Probable Amount of Contract (PAC) being Rs 53,53,354/-, which was fixed by respondents 5 and 6 engineers after taking into account applicable parameters such as price of the materials and labour cost. According to the petitioner, the 9^th respondent, claiming to have been entrusted with the

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W.P.(C).No.9613/2021

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execution of the work, took steps for construction of the bridge. Since the local people objected, the 9^th respondent filed a writ petition seeking police protection for execution of the work. As the locus standi of the of the 9^th respondent to seek police protection was disputed by the private respondents in the said writ petition, this court directed the 9^th respondent to produce the documents, if any, showing his entitlement to execute the work. Accordingly the 9^th respondent filed Ext.P4 interim application for producing Ext.P5 and Ext.P6 agreements of sub contract dated 17.07.2020 and 01.03.2020. According to the 9^th respondent, the work in question had been originally awarded to 7^th respondent, vide Ext.P4 for a sum of Rs 53,03,833/- and as evident from Ext.P5 agreement, he has given the sub contract of the work for a sum of 51,00,000/- to one Rosily Ouseph. Ext.P6 agreement would further show that the said Rosily Ouseph has in turn given the sub contract to one Xavier Biju for a sum of Rs 35,50,865/-. So according to the petitioner, it is evident that the work in question which was awarded for more than 53 lakhs would be completed for 35.5 lakhs, i.e., Rs.18 lakhs lesser than the estimated amount. According to

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W.P.(C).No.9613/2021

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the petitioner, the original contract will not allow the the contractor to give sub contract. In such circumstances, this writ petition is filed.

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Heard the learned counsel for the petitioner and the learned Government Pleader for the official respondents. I also heard the learned counsel appearing for the 4^th respondent, learned counsel for respondents 7 to 9 and the learned counsel for additional respondents 10 to 35.

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When this writ petition came up for consideration on 04.01.2022, this Court passed the following order:

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“The 5^th respondent will file an affidavit before this Court, after conducting an enquiry about the alleged sub-contract given by the 7^th respondent to the 8^th respondent and thereafter to the 9^th respondent. The 5^th respondent will also state in the affidavit about the action if any taken against the 7^th respondent for giving sub-contract in violation of the agreement, if the allegations are correct. Before taking any action, the 5^th respondent will give an opportunity of hearing to the 7^th respondent.

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The affidavit of the 5^th respondent shall be placed on record within three weeks.

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I make it clear that the 5^th respondent can take appropriate steps to complete the work. ”

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Based on the directions issued by this Court, the 5^th

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W.P.(C).No.9613/2021

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respondent filed an affidavit and it will be better to extract the relevant portion of the affidavit dated 16.02.2022 :

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“5. In the hearing the 7^th respondent Sri. M.K.Shabu submitted that subcontract documents submitted by the writ petitioner is not legally valid and such documents are cancelled even before the institution of the above writ petition. The 7^th respondent further stated that subcontract documents between the 8^th respondent and the 9^th respondent produced by the petitioner is only a temporary working arrangement and not a subcontract of the subject work. A statement in this regard was also submitted by the 7^th respondent. True copy of the same is produced as Annexure 1.

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On verification of the records including the main agreement of the work, sub contract documents, etc., it is revealed that even though cancellation of the sub contract agreement was done even before writ petition was filed, sub contract was entered into in this matter. Hence it is violation of the agreement condition i.e., Clause 19 of the contract. In the light of the above fact, the agreement is liable to the cancelled and the work is to be retendered at the risk and cost of the contractor. But the concern of the department is that the work involved is of very urgent nature and normally competitive responses are not seen received in the tenders in this area, when works are retendered on the risk and cost of the contractor.”

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W.P.(C).No.9613/2021

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From the above affidavit, it is clear that on verification of the records including the main agreement of the work, sub contract documents etc. the authority understood that even though cancellation of the sub contract agreement was done even before the writ petition was filed, the sub contract was entered into in this matter and hence there is violation of the agreement condition, i.e., Clause 19 of the contract. It is also stated by the officer that in the light of the above fact, the agreement is liable to be cancelled and the work is to be retendered at the risk and cost of the contractor. It is also stated in the affidavit that but the concern of the department is that the work involved is of very urgent nature and normally competitive response are not seen received in the tenders in this area when works are retendered on the risk and cost of the contractor.

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In the light of the above affidavit, this writ petition can be closed directing the 5^th respondent to take a decision in the light of the averments in paragraphs 5 and 6 of the affidavit. The 5^th respondent is free to take appropriate decision in accordance with law, within a time frame.

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Therefore, this writ petition is disposed of in the

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W.P.(C).No.9613/2021

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following manner:

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The 5^th respondent or the competent authority among the respondents will take a decision based on the averments in paragraphs 5 and 6 in the affidavit dated 16.02.2022, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.

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Before passing final orders, the authority concerned will give an opportunity of hearing to the petitioner and other parties to this writ petition.

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All the contentions of the petitioner and the contesting respondents in this writ petition are left open.

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Sd/- P.V.KUNHIKRISHNAN JUDGE

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W.P.(C).No.9613/2021

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APPENDIX OF WP(C) 9613/2021

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PETITIONER EXHIBITS

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`EXHIBIT P1`	`TRUE COPY OF THE RESOLUTION DATED` `24/01/2020 OF THE 4TH RESPONDENT` `PANCHAYATH.`
`EXHIBIT P2`	`TRUE COPY OF THE PLAN OF THE BRIDGE` `PROPOSED TO BE APPROVED BY 6TH` `RESPONDENT CONSTRUCTION.`
`EXHIBIT P3`	`TRUE COPY OF THE WORK ORDER DATED` `08/07/2020 ISSUED BY THE 5TH` `RESPONDENT.`
`EXHIBIT P4`	`TRUE COPY OF THE INTERIM APPLICATION` `FILED BY THE 9TH RESPONDENT IN W.P.(C)` `NO.6468 OF 2021 BEFORE THIS HON'BLE` `COURT, WITHOUT EXHIBITS.`
`EXHIBIT P5`	`TRUE COPY OF THE AGREEMENT DATED` `17/07/2020 EXECUTED BETWEEN THE 7TH` `AND 8TH RESPONDENT.`
`EXHIBIT P6`	`TRUE COPY OF THE AGREEMENT DATED` `01/03/2021 EXECUTED BETWEEN 8TH AND` `9TH RESPONDENT.`
`EXHIBIT P7`	`TRUE COPY OF THE CIRCULAR DATED` `05/08/2013 ISSUED BY THE 1ST` `RESPONDENT.`
`EXHIBIT P8`	`TRUE COPY OF THE RELEVANT PAGES OF THE` `STANDARD BID DOCUMENT PUBLISHED BY THE` `KERALA PUBLIC WORKS DEPARTMENT.`
`EXHIBIT P9`	`TRUE COPY OF THE PRINT OUT OF THE` `COMPANY MASTER DATA OF THE COMPANY` `PRIDE OF CHELLANAM BANK WATER RESORTS` `PRIVATE LIMITED.`
`EXHIBIT P10`	`TRUE COPY OF THE COMPANY MASTER DATA` `PERTAINING TO SPRINGFIELD VILLAS &` `APARTMENTS PRIVATE LIMITED.`
`EXHIBIT P11`	`A TRUE COPY OF THE JUDGMENT DATED` `16/04/2021 IN WPC.NO.6468/2021.`
`EXHIBIT P12`	`A TRUE COPY OF THE INTERIM ORDER DATED` `16/04/2021 IN WPC.NO.9889/2021.`
`RESPONDENT EXHIB`	`ITS`
`Exhibit R3(a)`	`A TRUE COPY OF THE ORDER DATED` `05/04/2021 IN IA.NO.2/2021 IN`

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W.P.(C).No.9613/2021

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	`O.S.83/2021 OF ADDITIONAL MUNSIFF` `COURT KOCHI.`
`Exhibit`	`R4(a)` `TRUE PHOTOCOPY OF LETTER NO.A5-` `6878/2021 DATED 16/9/2021 ISSUED BY` `THE SECRETARY, CHELLANAM GRAMA` `PANCHAYATH.`
`Exhibit`	`R7(a)` `COPY OF THE PHOTOGRAPH SHOWING HTE OLD` `BRIDGE PROPOSED TO THE` `RENOVATED/RECONSTRUCTED`
`Exhibit`	`R7(b)` `COPY OF THE TERMS AND CONDITIONS VIDE` `NO.31/EE/LSGD/20-21 DATED 08.07.2020` `SIGNED BY THE ME AND THE 5TH` `RESPONDENT.`
`Exhibit`	`R7(c)` `COPY OF THE COMMUNICATION ISSUED BY` `ASSISTANT EXECUTIVE ENGINEER,` `IRRIGATION SUB-DIVISION ERNAKULAM TO` `THE 5TH RESPONDENT DATED 09.09.2020`
`Exhibit`	`R7(d)` `COPY OF THE ACKNOWLEDGMENT FORM TO` `HANDING OVER SITE TO THE CONTRACTOR` `COUNTER SIGNED BY THE 6TH RESPONDNET` `ON 18.02.2021`
`Exhibit`	`R7(e)` `COPY OF THE DATED 06.04.2021` `INTIMATING HTE TERMINATION OF THE` `CONTRACT`

Anniemol Lawrence v. State of Kerala

Case brief

What is this about?

What did the court decide?

Anniemol Lawrence v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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