Allowed

George Mathew v. State of Kerala

Kerala HC8 Dec 2023WP(C)/16989/2023

Case brief

AI extract

What is this about?

This judgment disposed of five connected writ petitions filed by contractors against the Kerala Water Authority. The Court set aside a Circular dated 16.11.2022 which imposed a 10% retention requirement on pending works, holding that such additional conditions cannot be unilaterally imposed after contracts have been executed.

What did the court decide?

The impugned Circular dated 16.11.2022 is set aside against the petitioners and the specific works. Liberty granted to the Kerala Water Authority to negotiate or invoke other legal remedies.

George Mathew Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

FRIDAY, THE 8^TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945

¶5

WP(C) NO. 40821 OF 2023

¶6

PETITIONER:

¶7

TOMCO ENGINEERING PVT. LTD PALANNATTIL, KUNNACKAL POST, MUVATTUPUZHA, ERNAKULAM DISTRICT, REP. BY ITS MANAGING DIRECTOR, PAUL P. THOMAS, AGED 52 YEARS, S/O. LATE P.P. THOMAS, PALANNATTIL HOUSE, KUNNACKAL POST, MUVATTUPUZHA, ERNAKULAM, PIN - 682316 BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S.

¶8

RESPONDENTS:

¶9

1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 3 THE CHIEF ENGINEER (PROJECTS & OPERATIONS), KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 4 THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, P.H. CIRCLE, KERALA WATER AUTHORITY, THRISSUR DISTRICT, PIN - 680001 5 THE EXECUTIVE ENGINEER OFFICE OF THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PROJECT DIVISION, NATTIKA, THRISSUR, PIN - 680566

¶10

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶11

: 2 :

¶12

6 THE FINANCE MANAGER & CHIEF ACCOUNTS OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 BY ADV. SRI.GEORGIE JOHNY - SC

¶13

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2023, ALONG WITH WP(C).16989/2023, 21045/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶15

: 3 :

¶16

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶17

PRESENT

¶18

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶19

FRIDAY, THE 8^TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945

¶20

WP(C) NO. 16989 OF 2023

¶21

PETITIONER:

¶22

GEORGE MATHEW AGED 58 YEARS, S/O. MATHEW, EDAPAZHATHIL HOUSE, MANJALLOOR, VAZHAKULAM P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686670 BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S.

¶23

RESPONDENTS:

¶24

1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 3 THE CHIEF ENGINEER (PROJECTS & OPERATIONS), KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 4 THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, P.H. CIRCLE, KERALA WATER AUTHORITY, THRISSUR DISTRICT, PIN - 680001 5 THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY, P.H. DIVISION, IRINJALAKUDA, THRISSUR, PIN – 680121

¶25

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶26

: 4 :

¶27

BY ADV. SRI.GEORGIE JOHNY – SC.

¶28

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2023, ALONG WITH WP(C).40821/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶29

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶30

: 5 :

¶31

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶32

PRESENT

¶33

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶34

FRIDAY, THE 8^TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945

¶35

WP(C) NO. 21045 OF 2023

¶36

PETITIONER:

¶37

M/S. MAJESTIC CONSTRUCTIONS REP. BY ITS MANAGING PARTNER, DOMINIC ZACHARIAS, S/O. P.O. ZACHARIAS, AGED 56 YEARS, PANAMKATTU HOUSE, KARIMKUNNAM P.O., THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685586 BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S.

¶38

RESPONDENTS:

¶39

1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 3 THE CHIEF ENGINEER (PROJECTS & OPERATIONS), KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 4 THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, P.H. CIRCLE, KERALA WATER AUTHORITY, MUVATTUPUZHA, PIN - 686670 5 THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY, PROJECT DIVISION, KATTAPPANA, IDUKKI DISTRICT, PIN - 685515

¶40

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶41

: 6 :

¶42

BY ADV. SRI.GEORGIE JOHNY – SC.

¶43

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2023, ALONG WITH WP(C).40821/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶44

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶45

: 7 :

¶46

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶47

PRESENT

¶48

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶49

FRIDAY, THE 8^TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945

¶50

WP(C) NO. 27480 OF 2023

¶51

PETITIONER:

¶52

GEORGE MATHEW AGED 59 YEARS, S/O. MATHEW, EDAPAZHATHIL HOUSE, MANJALLOOR, VAZHAKULAM P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686670 BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S.

¶53

RESPONDENTS:

¶54

1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 3 THE CHIEF ENGINEER (PROJECTS & OPERATIONS), KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 4 THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, P.H. CIRCLE, KERALA WATER AUTHORITY, THRISSUR DISTRICT, PIN - 680001 5 [THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY, P.H. DIVISION, IRINJALAKUDA, THRISSUR - 680121 ]* CORRECTED.

¶55

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶56

: 8 :

¶57

THE EXECUTIVE ENGINEER, KERLA WATER AUTHORITY, PROJECTION DIVISION, NATTIKA, THRISSUR - 680 566. (THE ADDRESS OF R5 IS CORRECTED AS PER ORDER DATED 23/08/2023 IN IA 1/23 OF WP(C)). BY ADV. SRI.V.V.JOSHY – SC.

¶58

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2023, ALONG WITH WP(C).40821/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶59

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶60

: 9 :

¶61

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶62

PRESENT

¶63

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶64

FRIDAY, THE 8^TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945 WP(C) NO. 40826 OF 2023

¶65

PETITIONER:

¶66

TOMCO ENGINEERING PVT. LTD PALANNATTIL, KUNNACKAL POST, MUVATTUPUZHA, ERNAKULAM - 682 316 REP. BY ITS MANAGING DIRECTOR, PAUL P. THOMAS, AGED 52 YEARS, S/O. LATE P.P. THOMAS, PALANNATTIL HOUSE, KUNNACKAL POST, MUVATTUPUZHA, ERNAKULAM, PIN - 682316 BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S.

¶67

RESPONDENTS:

¶68

¶69

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶70

: 10 :

¶71

5 THE EXECUTIVE ENGINEER OFFICE OF THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PROJECT DIVISION, NATTIKA, THRISSUR, PIN - 680566

¶72

6 THE FINANCE MANAGER & CHIEF ACCOUNTS OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 BY ADV. SRI.GEORGIE JOHNY - SC

¶73

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2023, ALONG WITH WP(C).40821/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶74

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶75

: 11 :

¶76

JUDGMENT

¶77

I am disposing of all these writ petitions together through this judgment, since they present analogous and factual circumstances; while, the reliefs sought for in them are interrelated.

¶78

The petitioners in these cases are contractors, who have entered into various works with the Kerala Water Authority (KWA). They allege that even though they were continuing with their works strictly in terms of, and scrupulously complying with the tender notifications and the imperatives under it, they have been abruptly imposed with the impugned orders – produced as Ext.P2 in W.P.(C).No.27480/2023, Ext.P7 in W.P.(C).No.21045/2023 and Ext.P3 in all other cases – whereby, an amount of 10% has been ordered to be retained against them, to ensure that the works are satisfactorily completed. They say that this is illegal and unlawful because, it goes against the tender notifications; and hence, that the respondents are now acting in breach of their contractual obligations. They, therefore, pray that the impugned orders be set aside.

¶79

Sri.V.V.Joshy – learned Standing Counsel appearing for the “KWA” in W.P.(C).No.27480/2023 and Sri.Georgie Johny – learned Standing Counsel appearing for the “KWA” in all other matters,

¶80

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023 : 12 :

¶81

pointed out that the impugned proceedings is only a Circular dated 16.11.2022, wherein, the Committee headed by the Hon'ble Minister, noted the slow progress of the works, particularly qua issues related to the processing of tenders. They pointed out that the decisions therein are only intended to protect the “KWA” against any default that may be committed by the petitioners in these cases; and, therefore, that it is in the public interest. They, however, conceded, to a pointed question from this Court, that the conditions imposed by the Circular are in addition to the contractual terms between the parties; but argued that their client is entitled to impose such in public interest, to ensure that the works are completed without defect or fault later.

¶82

I am afraid that I cannot find favour with the afore submissions of the learned Standing Counsel for the “KWA” because, when a tender is floated and agreements are entered pursuant thereto, the parties are to abide by its terms and by the covenants of the contracts entered into subsequent to it.

¶83

In the cases at hand, it is expressly admitted by the “KWA” that the conditions sought to be imposed in the impugned Circular are not ones that were part of the contracts entered into; but that they are intended to be additional ones, to protect them from delay or deficiency involved. Obviously, such conditions cannot be

¶84

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023 : 13 :

¶85

imposed against the contractors once the contracts has been entered into; and if the “KWA” required any further relief, they ought to have invoked the provisions of law, as available to them, either for the purpose of modifying the contracts, or for adding additional covenants to it. However, this can be done only as per law and through due procedure. Such a measure could not have been done unilaterally, through proceedings like the impugned Circular; and am certain that this Court cannot find favour with them.

¶86

In the afore circumstances, I allow these writ petitions and set aside the impugned Circular, as against the petitioners and the works in question; however, leaving liberty to the “KWA” to either negotiate with them or invoke such other remedies as may be available to them; for which purpose, all rival contentions are left open.

¶87

Sd/DEVAN RAMACHANDRAN JUDGE

¶88

anm

¶89

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶90

: 14 :

¶91

APPENDIX OF WP(C) 16989/2023

¶92

PETITIONER EXHIBITS

¶93

Exhibit P1	TRUE COPY OF RELEVANT PAGES OF NIT NO.15/SE/PHC/TSR/2022-23 ISSUED BY 4TH RESPONDENT WITH LAST DATE OF SUBMISSION 03.08.2022
Exhibit P2	TRUE COPY OF WORK ORDER NO. KWA/PHC/TSR/B5/ 2875/2022 DTD. 27.09.2022
Exhibit P3	TRUE COPY OF CIRCULAR NO.34148/AEE 6/2022/KWA DTD. 16.11.2022 ISSUED BY 3RD RESPONDENT
Exhibit P4	TRUE COPY OF REPRESENTATION DTD. 03.05.2023 SUBMITTED BY PETITIONER TO 5TH RESPONDENT
Exhibit P5	TRUE COPY OF RELEVANT PAGES OF OPERATIONAL GUIDELINES OF JJM ISSUED BY MINISTRY OF JAL SHAKTHI, DEPARTMENT OF DRINKING WATER & SANITATION IN GOVERNMENT OF INDIA

¶94

RESPONDENTS' EXHIBITS : NIL.

¶95

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶96

: 15 :

¶97

APPENDIX OF WP(C) 21045/2023

¶98

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER NO. KWA/SE/PHC/MVPA/D3/JJM/T-48/2021 DTD. 15.02.2021 ISSUED BY 4TH RESPONDENT Exhibit P2 TRUE COPY OF RELEVANT PAGES OF AGREEMENT NO.32/2020-21/SE/PHC/MVPA Exhibit P3 TRUE COPY OF BILL DTD. 10.03.2023 Exhibit P4 TRUE COPY OF BILL DTD. 22.03.2023 Exhibit P5 TRUE COPY OF CERTIFICATE DTD.05.05.2023 Exhibit P6 TRUE COPY OF LETTER DTD.15.05.2023 Exhibit P7 TRUE COPY OF CIRCULAR NO.34148/AEE 6/2022/KWA DTD. 16.11.2022 ISSUED BY 3RDRESPONDENT Exhibit P8 TRUE COPY OF REPRESENTATION DTD. 22.05.2023 SUBMITTED BY PETITIONER TO 4TH RESPONDENT Exhibit P9 TRUE COPY OF REPRESENTATION DTD. 14.06.2023 SUBMITTED BY PETITIONER TO 4TH RESPONDENT Exhibit P10 TRUE COPY OF RELEVANT PAGES OF OPERATIONAL GUIDELINES OF JJM ISSUED BY MINISTRY OF JAL SHAKTHI, DEPARTMENT OF DRINKING WATER & SANITATION IN GOVERNMENT.

¶99

RESPONDENTS' EXHIBITS : NIL.

¶100

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶101

: 16 :

¶102

APPENDIX OF WP(C) 27480/2023

¶103

PETITIONER EXHIBITS

¶104

Exhibit P1 TRUE COPY OF WORK ORDER NO. KWA/PHC/TSR/ D1/3957/2022 DTD. 22.11.2022 ISSUED BY 4TH RESPONDENT Exhibit P2 TRUE COPY OF CIRCULAR NO.34148/AEE 6/2022/KWA DTD. 16.11.2022 ISSUED BY 3RDRESPONDENT Exhibit P3 TRUE COPY OF ORDER DTD. 11.07.2023 IN W.P. (C). NO. 16989 OF 2023 Exhibit 4 TRUE COPY OF RELEVANT PAGES OF OPERATIONAL GUIDELINES OF JJM ISSUED BY MINISTRY OF JAL SHAKTHI, DEPARTMENT OF DRINKING WATER & SANITATION IN GOVERNMENT OF INDIA

¶105

RESPONDENTS' EXHIBITS : NIL.

¶106

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶107

: 17 :

¶108

APPENDIX OF WP(C) 40821/2023

¶109

PETITION	ER EXHI	BITS
Exhibit	P1	TRUE COPY OF RELEVANT PAGES OF TENDER NOTICE NO. 87/SE/PHC/TSR/2022-23 WITH LAST DATE OF SUBMISSION ON 14.11.2022
Exhibit	P2	TRUE COPY OF WORK ORDER NO. KWA/PHC/TSR/D5/4975/2022 DTD. 05.01.2023 ISSUED BY 4TH RESPONDENT
Exhibit	P3	TRUE COPY OF CIRCULAR NO.34148/AEE 6/2022/KWA DTD. 16.11.2022 ISSUED BY 3RD RESPONDENT
Exhibit	P4	TRUE COPY OF REPRESENTATION DTD. 10.11.2023 SUBMITTED BY PETITIONER TO 5TH RESPONDENT
Exhibit	P5	TRUE COPY OF RELEVANT PAGES OF OPERATIONAL GUIDELINES OF JJM ISSUED BY MINISTRY OF JAL SHAKTHI, DEPARTMENT OF DRINKING WATER & SANITATION IN GOVERNMENT OF INDIA
Exhibit	P6	TRUE COPY OF ORDER DTD. 11.07.2023 IN W.P. (C). NO. 16989 OF 2023

¶110

RESPONDENTS' EXHIBITS : NIL.

¶111

WP(C) Nos.40821/2023, 16989/2023, 21045/2023, 27480/2023 & 40826/2023

¶112

: 18 :

¶113

APPENDIX OF WP(C) 40826/2023

¶114

PETITIONER EXHIBITS

¶115

Exhibit	P1 TRUE COPY OF TENDER NOTICE NO. 124/SE/PHC/ TSR/2022-23 (VOL. I AND II) WITH LAST DATE OF SUBMISSION ON 18.01.2023
Exhibit	P2 TRUE COPY OF WORK ORDER NO. KWA/PHC/TSR/D5/ 6242/2022 DTD. 16.03.2023 ISSUED BY 4TH RESPONDENT
Exhibit	P3 TRUE COPY OF CIRCULAR NO.34148/AEE 6/2022/KWA DTD. 16.11.2022 ISSUED BY 3RD RESPONDENT
Exhibit	P4 TRUE COPY OF REPRESENTATION DTD. 02.11.2023 SUBMITTED BY PETITIONER TO 5TH RESPONDENT
Exhibit	P5 TRUE COPY OF RELEVANT PAGES OF OPERATIONAL GUIDELINES OF JJM ISSUED BY MINISTRY OF JAL SHAKTHI, DEPARTMENT OF DRINKING WATER & SANITATION IN GOVERNMENT OF INDIA
Exhibit	P6 TRUE COPY OF ORDER DTD. 11.07.2023 IN W.P. (C). NO. 16989 OF 2023

¶116

RESPONDENTS' EXHIBITS : NIL.

George Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

George Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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