Allowed

C.M.Abdul Khader v. Kerala Water Authority

Kerala HC14 Sept 2023WP(C)/12050/2021

Case brief

AI extract

What is this about?

The petitioner, a government contractor, filed a writ petition seeking release of the final bill and balance dues for a water weir construction project. The Court, relying on the Assistant Engineer's certification of satisfactory work execution and the department's inaction to cancel the tender, ordered the respondents to disburse the legally due amount within three months.

What did the court decide?

Ordering the respondents to disburse the amount legally due to the petitioner, as evident from Ext P3, within three months from the date of receipt of a copy of this judgment.

C.M.Abdul Khader Vs Kerala Water Authority — Contract and Commercial Disputes | Kerala HC (2023)

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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 VIJU ABRAHAM
THURSDAY, THE 14TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945
WP(C) NO. 12050 OF 2021

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PETITIONER:

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C.M.ABDUL KHADER
AGED 63 YEARS
S/O. MOIDEEN KUNJU, RESIDING AT C.M. HOUSE, CHERKALA
POST, CHENGALA, KASARAGOD-671541.
BY ADVS.
Jacob Sebastian
K.V.WINSTON(K/147/2010)
ANU JACOB(K/1072/2013)
DIVYA R. NAIR(K/1317/2021)

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RESPONDENTS:

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1KERALA WATER AUTHORITY
REPRESENTED BY THE MANAGING DIRECTOR, JALABHAVAN,
VELLAYAMBALAM, THIRUVANANTHAPURAM P.O.,PIN-695033.
2THE SUPERINTENDING ENGINEER,
KERALA WATER AUTHORITY, P.H. CIRCLE, KANNUR-670012.
3THE EXECUTIVE ENGINEER
KERALA WATER AUTHORITY, P.H. DIVISION, KASARAGOD-
671123.
BY ADVS.
S.C., GEORGIE JOHNY
MARY BENJEMIN
SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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WP(C) No. 12050 of 2021 : 2:

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VIJU ABRAHAM , J.

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=========================== WP(C) No. 12050 of 2021

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============================ Dated this the 14^th day of September, 2023

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J U D G M E N T

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The above writ petition is filed seeking a direction to the Kerala Water Authority the 2^nd respondent herein to release the 4^th and the final bill amount and all the balance amount due to the petitioner including security deposit along with interest.

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As per the averments in the writ petition, the petitioner is an ‘A’ class Government Contractor who has been undertaking work for the Government mainly for the Kerala Water Authority. The tender submitted by the petitioner for the work was accepted by the respondent Kerala Water Authority and Ext P1 agreement was entered into by the petitioner with the 2^nd respondent whereby he undertook the work “ Kasaragod Development Package – RWSS to Enmakaje and adjoining villages in Kasargod Taluk of Kasargod District – Design construction, commissioning and maintenance of 4.00 meter Heigh RCC Weir across Shiriya river at Adkasthala ”. The date of completion of the said work was fixed as 22.09.2018 and the petitioner completed the said work to the satisfaction of the Water Authority on 22.09.2018.

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In spite of satisfactory completion of the said work, the

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WP(C) No. 12050 of 2021 : 3:

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CC 4^th and final bill, security deposit, retention amount, trial running balance and maintenance with regard to 1^st , 2^nd and 3^rd part and other amounts due to the petitioner have not been paid till date. Petitioner thereupon submitted Ext P2 representation in this regard. Placing reliance on Ext P3, which is the relevant portion of the running account bill wherein it is certified by the Assistant Engineer, Water and Supply Project Section, Kerala Water Authority, Bovikkanam P.O., Muliyar that the measurements were made by him on 14.12.2018 and are recorded on page No.80, 81 of measurement book No.CE/NR/2021/2013-14 and that the work has been executed satisfactorily and that the bill as claimed above represents a correct account of the contractor’s claims and liabilities. Based on Ext P3 it is the contention of the petitioner that the work was verified and measured by the officers of the Water Authority themselves and execution of the work and endorsed in Ext P3 that the work has been completed satisfactorily and therefore they cannot now deny the payment of the amounts legally due to the petitioner.

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A statement has been filed on behalf of respondent Water Authority wherein it is stated that the work is not completed yet, the guarantee/maintenance period has not started and therefore security maintenance and other amounts cannot be released at present. They rely on Exts R3(Ai) to R3(Aiii) letters

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WP(C) No. 12050 of 2021 : 4:

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issued by the petitioner requesting for an extension of time to complete the work and therefore the contention of the petitioner that he completed the work on 22.09.2018 is not correct. It is the further contention of the respondent Water Authority that in spite of several communications being issued to the petitioner to rectify the leakages through the shutters, the same has not been done by the petitioner. To substantiate the said contention Annexures R3(Bi) to R3(Bx) documents were produced along with the statement. On the basis of the same, the contention of the respondent Water Authority is that since the work has not been completed yet, the final bill and other amounts cannot be released to the contractor.

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In answer to the said contention the petitioner has filed a reply affidavit, wherein it is stated that as on 22.09.2018, the works were completed and only work with regard to the shutter was not completed due to heavy floods of 2018 and as the water level in the river was very high and therefore the shutter could not be fixed as the lorries and cranes could not enter the premises due to heavy rise in water level in the river. Therefore, Exts R3(Ai) letter was submitted seeking an extension till 31.12.2019 without fine. Later, reminders were also sent as per Annexures R3(Aii) and R3(Aiii). As is evident from Annexure R3(Biv) dated 23.12.2019, the shutter works were completed and it is stated in the said

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WP(C) No. 12050 of 2021 : 5:

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communication that there are some leaks found and the petitioner was asked to repair the leak within three days and therefore, in response to Annexure R3(vii) communication dated 30.01.2020 petitioner along with the labourers went to the site and removed the entire leak to the satisfaction of the respondent. It is after a long duration of one year i.e., on 04.12.2020 Annexure R3(Bviii) communication was sent by the respondent to take steps for collection of water in the dam. The work was completed on 14.12.2018 and the guarantee period was for 18 months and within that time the petitioner repaired the entire leak to the satisfaction of the respondent. The communication sent to the petitioner after one year i.e., on 04.12.2020, 08.12.2020 and 18.12.2020 is of no relevance and the withholding of the amount due is unjust and done only to harass the petitioner.

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When the matter was taken up for consideration, the learned Standing Counsel for the respondent would submit that the Water Authority has in fact abandoned the project for the time being, though the same is not stated in the statement filed on behalf of the Water Authority.

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I have considered the rival contentions of parties.

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A perusal of Ext P3 would reveal that it is certified by

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none other than the Assistant Engineer of the Kerala Water Authority that measurement have been taken and work has been

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WP(C) No. 12050 of 2021 : 6:

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executed satisfactorily and the bill as claimed above represent a correct account of the contractor’s claims and liabilities. It is the contention of the petitioner that the shutters could not be fixed due to the heavy floods of 2018 and therefore he has sought for extension of time to complete the said work and that the said work was also completed as is evident from Ext R3(B4) communication. The only objection in the said communication is that there are some leaks found and the petitioner was asked to repair the leak. It is the contention of the petitioner in the reply affidavit that the petitioner along with his labourers has removed the entire leak to the satisfaction of the respondent. A memo has been filed producing the notice inviting tender in respect of the said work as Ext R1(A) which contains the details regarding the execution of the work etc. Clause 8.23 deals with the guarantee period for the work and the said period is now over. Clause 8.24 deals with the maintenance period and training of the operations. Clause 9.13 deals with the procedure to rectify defective work whenever any request is made by the authorities during the work or prior to the expiry of the guarantee period and it is the duty of the petitioner to rectify the same to the satisfaction of the department.

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The specific case of the petitioner is that, whatever defects that were notified by the Department have been cured by

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WP(C) No. 12050 of 2021 : 7:

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him and that he is not responsible for any request for curing any defect after the liability period. It is also to be seen that even though the Water Authority has a specific case that work has not been completed yet even after a lapse of almost five years after the tendering of the work, no notice or action has been taken against the petitioner and the work has not been re-tendered or the tender has been cancelled at the risk and cost of the petitioner. The inaction on the part of the Department in taking any action against the petitioner for any alleged defects in the work undertaken by the petitioner or for any default on the part of the petitioner in completing the work fully as per the terms of the agreement has to be looked into on the basis of the submission made by the Standing Counsel for the Kerala Water Authority that they have abandoned the said project. Only for the reason that the Water Authority has abandoned the project, cannot be a reason for withholding the amount legally due to the petitioner. The specific case of the petitioner is that he has completed the work as directed by the authorities. Other than making a bald averment in the statement filed by the Department that the work has not been completed, the Standing Counsel could not bring to my notice any action taken to cancel the tender at the risk and cost of the petitioner or any steps taken to re-tender the work. Therefore the stand of the Kerala Water Authority cannot be

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WP(C) No. 12050 of 2021 : 8:

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accepted especially in the light of Ext P3 endorsement/ certification issued by the officers of the Kerala Water Authority that the work has been executed satisfactorily. I am of the opinion that there cannot be any delay in payment of the amounts legally due to the petitioner in view of the endorsement/certification in Ext P3. Therefore it is ordered that the amount legally due to the petitioner as evident from Ext P3 shall be disbursed by the respondents to the petitioner within a period of three months from the date of receipt of a copy of this judgment. The right if any available under law, to the respondents to proceed against the petitioner for any alleged lapse is left open.

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With the above-said direction, the writ petition is disposed

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of.

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Sd/-

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VIJU ABRAHAM JUDGE

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sbk/-

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WP(C) No. 12050 of 2021 : 9:

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APPENDIX OF WP(C) 12050/2021

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PETITIONER EXHIBITS

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`Exhibit P1`	`TYPED COPY OF THE AGREEMENT NO. 5/2017-` `18/SE/PHC/KNR DATED 05/04/2017 EXECUTED` `BETWEEN PETITIONER AND THE 2ND` `RESPONDENT.`
`Exhibit P2`	`TRUE COPY OF THE REPRESENTATION DATED` `01/12/2020 SENT BY THE PETITIONER TO THE` `3RD RESPONDENT.`
`Exhibit P3`	`TRUE COPY OF RELEVANT PORTION OF THE` `RUNNING ACCOUNT BILL DTD. NIL SHOWING` `THE REMARKS BY CHECK MEASURING OFFICER.`
`Exhibit-P3 IN I.A.` `NO.1 OF 2023`	`A TRUE COPY OF THE RUNNING ACCOUNT BILL` `RELATING TO THE WORK KASARAGOD` `DEVELOPMENT PACKAGE - RWSS ENMAKAJE AND` `ADJOINING VILLAGES IN KASARAGOD TALUK OF` `KASARAGOD DISTRICT - DESIGN,` `CONSTRUCTION, COMMISSIONING AND` `MAINTENANCE OF 4.00 M HEIGH RCC WEIR` `ACROSS SHIRIYA RIVER AT ADKASTHALA` `CERTIFIED BY THE ASSISTANT EXECUTIVE` `ENGINEER, KERALA WATER AUTHORITY.`
`RESPONDENT EXHIBITS`
`R1(a)`	`The True Copy of the Notice Inviting` `Tender issued by the Kerala Water` `Authority for "KASARAGOD DEVELOPMENT` `PACKAGE - RWSS TO ENMAKAJE AND ADJOINING` `VILLAGES IN KASARAGOD TALUK OF KASARAGOD` `DISTRICT - DESIGN, CONSTRUCTION,` `COMMISSIONING AND MAINTENANCE OF 4.00M` `HEIGH RCC WEIR ACROSS SHIRIYA RIVER AT` `ADKASTHALA`
`ANNEXURE R3(Ai)`	`TRUE COPY OF THE LETTER DATED 19.09.2018` `GIVEN BY THE PETITIONER`
`ANNEXURE R3(Aii)`	`TRUE COPY OF THE LETTER DATED 17.10.2018` `GIVEN BY THE PETITIONER`
`ANNEXURE R3(Aiii)`	`TRUE COPY OF THE LETTER DATED 02.11.2018` `GIVEN BY THE PETITIONER`
`ANNEXURE R3(Bi)`	`TRUE COPY OF THE LETTER DATED 09.10.2018` `SENT TO THE PETITIONER`
`ANNEXURE R3(Bii)`	`TRUE COPY OF THE LETTER DATED 14.11.2018` `SENT TO THE PETITIONER`
`ANNEXURE R3(Biii)`	`TRUE COPY OF THE LETTER DATED 29.05.2019` `SENT TO THE PETITIONER`
`ANNEXURE R3(Biv)`	`TRUE COPY OF THE LETTER DATED 23.12.2019` `SENT TO THE PETITIONER`

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WP(C) No. 12050 of 2021 : 10:

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ANNEXURE R3(Bv)TRUE COPY OF THE LETTER DATED 21.01.2020
SENT TO THE PETITIONER
ANNEXURE R3(Bvi)TRUE COPY OF THE LETTER DATED 25.01.2020
SENT TO THE PETITIONER
ANNEXURE R3(Bvii)TRUE COPY OF THE LETTER DATED 30.01.2020
SENT TO THE PETITIONER
ANNEXURE R3(Bviii)TRUE COPY OF THE LETTER DATED 04.12.2020
SENT TO THE PETITIONER
ANNEXURE R3(Bix)TRUE COPY OF THE LETTER DATED 08.12.2020
SENT TO THE PETITIONER
ANNEXURE R3(Bx)TRUE COPY OF THE LETTER DATED 18.12.2020
SENT TO THE PETITIONER

C.M.Abdul Khader v. Kerala Water Authority

Case brief

What is this about?

What did the court decide?

C.M.Abdul Khader v. Kerala Water Authority

Case brief

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