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Kurien.E.Kalathil v. State of Kerala

Kerala HC14 Dec 2023WP(C)/17971/2019

Case brief

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What is this about?

The Court resolved a contractor's writ petition regarding payment bills. It set aside the writ jurisdiction to adjudicate the representation's disputed component, directing the authority to summon the petitioner for rate assessment of undisputed work and to enter a supplementary agreement.

What did the court decide?

Directing the KSEB competent authority to summon petitioner for rate assessment of bills (Ext.P12) and enter supplementary agreement within one month; Ext.P14 issues left open.

Kurien.E.Kalathil Vs State of Kerala — Service and Employment | 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 DEVAN RAMACHANDRAN
THURSDAY, THE 14TH DAY OF DECEMBER 2023 / 23RD

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AGRAHAYANA, 1945

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WP(C) NO. 17971 OF 2019

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PETITIONER:

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KURIEN.E.KALATHIL
AGED 70 YEARS
CONTRACTOR, T.C. NO. 14/1004, VAZHUTHACAUD,
THIRUVANANTHAPURAM

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BY ADVS.
M.RAMESH CHANDER (SR.)
SMT.K.A.SANJEETHA
SRI.BALU TOM
SRI.BONNY BENNY
SHRI. BEJOY JOSEPH P.J.

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 001.

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2 KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 001, REPRESENTED BY ITS SECRETARY.

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3 CHIEF ENGINEER (CONSTRUCTION CIVIL), NORTH KERALA STATE ELECTRICITY BOARD, GANDHI ROAD, KOZHIKODE.

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4 SECRETARY, POWER DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 004.

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ADDL.R5. WAPCOS LTD(WATER AND POWER CONSULTANCY SERVICES(INDIA) LTD COCHIN SPECIAL ECONOMIC ZONE, CSEZ ADMINISTRATIVE BUILDING, KAKKANAD, COCHIN-682 037.REPRESENTED BY ITS PROJECT MANAGER.

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WP(C)No.17971/2019

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[ADDL.R5 IMPLEADED AS PER ORDER DATED 18.07.2019
IN IA.NO.1/19 IN W.P.(C) 17971/19]
BY ADVS.
SRI.S.RAMESH BABU (SR.)
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.N.KRISHNA PRASAD
SRI.IMAM GRIGORIOS KARAT
MANU S., ASG OF INDIA
SRI RAMESH BABU.SR; SRI N KRISHNA PRASAD-SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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WP(C)No.17971/2019

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JUDGMENT

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It is not required for this Court to write a long judgment in this matter any further because, the learned Senior counsel appearing for the parties are virtually in agreement with respect to the manner in which the controversy can be resolved.

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Sri.M.Ramesh Chander - learned Senior Counsel, instructed by Sri.Bonny Benny - appearing for the petitioner, submitted that the disputations in this case revolve around Ext.P12 bill and Ext.P14 representation; and conceded that, as regards the latter, there is only one component which is in contest. He argued that his client is entitled to the bills as claimed by him; and therefore, that the respondent - Kerala State Electricity Board (KSEB), is bound to honour the same.

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Sri.S.Ramesh Babu - learned Senior Counsel, instructed by Sri.N.Krishna Prasad - learned Standing Counsel for the KSEB, on the other hand, submitted that, though the quantum in Ext.P12 remains without dispute, it can be honoured only if the petitioner agrees to execute Ext.P12 supplementary agreement. He submitted that this is necessary because, otherwise, there would be no certainty as

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WP(C)No.17971/2019

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to the manner in which the payments are made and the works completed. As regards Ext.P14, he submitted that the disputed component mentioned in the said representation can be computed only on the basis of germane evidence and facts, which this Court may not be able to do while acting under Article 226 of the Constitution of India; and prayed that this writ petition, to the extent of the relief sought against it, be dismissed.

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In reply, Sri.Ramesh Chander - learned Senior Counsel, submitted that his client is willing to sign the supplementary agreement - a copy of which has been produced as part of Ext.P12; but added that, except the original terms qua the work and its completion, his client may not be burdened with any other, though the rates will be as agreed between the parties. He submitted that, in fact, even though Ext.P12 was prepared by the respondents, his client has not accepted the same because, the additional amounts due to him have not been included therein. He concluded, saying that, as regards Ext.P14, if this Court is not inclined to enter into the merits of the same, then his client may be given liberty to initiate and pursue alternative remedies.

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WP(C)No.17971/2019

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..5..

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As I have already said above, the parties are virtually in consonance with respect to the amounts that may be due to the petitioner qua the work now reflected in Ext.P12. This is because, it is without dispute that the work has been completed by the petitioner and that all which now requires is the assessment of the rates applicable.

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That said, however, quad hoc Ext.P14 representation and the disputed component therein, I find the submissions of Sri.Ramesh Babu - learned Senior Counsel, to be on terra firma because, it will not be possible for this Court, while acting under Article 226 of the Constitution of India, to adjudicate or resolve the disputations, particularly, because it hinges on facts and documents, which cannot be evaluated by this Court while exercising writ jurisdiction.

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In the afore circumstances, this writ petition is ordered in the following manner:

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a. The competent Authority of the respondent - KSEB is immediately directed to advert to Ext.P12 and hear the petitioner; thus culminating in assessment of the rates eligible to them, subsequent to which, the petitioner will sign Ext.P12 supplementary agreement, however, including the rates to be

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arrived at as afore. This shall be done within a period of one month from the date of receipt of a copy of this judgment.

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b. On the afore being done, all eligible amounts will be paid to the petitioner within a period of one month.

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c. As regards the disputations relating to Ext.P14, I leave open all of them and reserve liberty to the petitioner to invoke every other alternative remedy, as may be available to them; for which purpose, all contentions are left open in that regard.

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Sd/-

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DEVAN RAMACHANDRAN, JUDGE

ACR

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APPENDIX OF WP(C) 17971/2019

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`PETITIONER EXHI` `EXHIBIT P1`	`BITS` `PHOTOSTAT COPY OF THE JUDGMENT OF THIS` `HONBLE COURT REPORTED IN AIR 2000 SC` `2573 = (2000) 6 SCC 293 IN THE CASE OF` `KSEB VS. KURIEN E. KALATHIL`
`EXHIBIT P2`	`PHOTOSTAT COPY OF THE ORDER IN REVIEW` `PETITION 1095/2000 DATED 7.12.2000`
`EXHIBIT P3`	`PHOTOSTAT COPY OF THE APPLICATION FOR` `CLARIFICATION OF THE JUDGMENT DATED` `19.7.2000`
`EXHIBIT P4`	`PHOTOSTAT COPY OF THE ORDER IN` `INTERLOCUTORY APPLICATION NO. 4 & 5 IN` `CA 4092/2000 BY THE APEX COURT DATED` `19.2.2001`
`EXHIBIT P5`	`PHOTOSTAT COPY OF THE ORDER IN IA` `6/2006 IN C.A. NO. 4092/2000 DATED` `24.9.2007`
`EXHIBIT P6`	`PHOTOSTAT COPY OF THE REPRESENTATION` `DATED 6.10.2003`
`EXHIBIT P7`	`PHOTOSTAT COPY OF THE REPRESENTATION` `GIVEN BY THE PETITIONER TO THE BOARD` `DATED 13.10.2003`
`EXHIBIT P8`	`PHOTOSTAT COPY OF THE NOTE SUBMITTED` `BY THE CHIEF ENGINEER (CIVIL` `CONSTRUCTION), TO THE MEMBERS OF THE` `KSE BOARD.`
`EXHIBIT P9`	`PHOTOSTAT COPY OF THE ORDER OF THE KSE` `BOARD DATED 17.1.2003`
`EXHIBIT P10`	`PHOTOSTAT COPY OF THE COMMUNICATION TO` `THE DEPUTY CHIEF ENGINEER DATED` `5.2.2003 BY THE PETITIONER`
`EXHIBIT P11`	`PHOTOSTAT COPY OF THE COMMUNICATION TO` `THE CHIEF ENGINEER (CIVIL` `CONSTRUCTION) DATED 30.4.2003`
`EXHIBIT P12`	`PHOTOSTAT COPY OF THE FINAL BILL` `REGARDING THE SUPPLEMENTARY WORK` `UNDERTAKEN BY THE PETITIONER`
`EXHIBIT P13`	`PHOTOSTAT COPY OF THE ORDER G.O. (RT)` `NO. 19/2004/PD DATED 7.2.2004`
`EXHIBIT P14`	`PHOTOSTAT COPY OF THE`

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	`REPRESENTATION /ARGUMENT NOTE` `SUBMITTED BEFORE THE HIGH LEVEL` `COMMITTEE`
`EXHIBIT P15`	`PHOTOSTAT COPY OF THE ORDER B.O. (FM)` `NO. 2999/2015 (GPC-2)/CCW/2/98. DATED` `21.10.2005 OF THE KSE BOARD.`
`EXHIBIT P16`	`PHOTOSTAT COPY OF THE REPRESENTATION` `SENT BY PETITIONER TO THE RESPONDENTS.`
`EXHIBIT P17`	`THE PHOTOSTAT COPY OF THE BILL` `NO.CC.XVIII(B) & FINAL ISSUED BY THE` `2ND RESPONDENT UNDER CIVIL CIRCLE,` `KOZHIKODE`
`EXHIBIT P18`	`Photostat copy of a comprehensive` `report of the Chief Engineer Civil` `construction of the Respondent Board` `dated 02.11.2002`
`RESPONDENT EXHIB`	`ITS`
`Exhibit-R2(a)`	`True copy of the Supplementary` `Agreement No.I to Agreement` `No.18/CEC/81-82 dated 9.1.1986`
`Exhibit-R2(b)`	`True copy of the judgment of the` `Hononourable Supreme Court dated` `9.3.2018 in Civil Appeal (Kerala State` `Electricity Board and anr.` `Kurien.E.Kalathil and anr. Nos.3164-` `3165 of 2017`
`Exhibit-R2(c)`	`True copy of the minutes of the` `meeting dated 30.7.2001`
`Exhibit-R2(d)`	`True copy of the letter No.CECN-KAS-` `92/98/583(A) dated 31.5.2002`
`Exhibit-R2(e)`	`True copy of B.O(FB)No.1794/2003` `(TC4/KAS/1/2001) dated 13.11.2003`

Kurien.E.Kalathil v. State of Kerala

Case brief

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Kurien.E.Kalathil v. State of Kerala

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