Remanded

Saji Mathew v. State of Kerala

Kerala HC21 Sept 2023WP(C)/3272/2023

Case brief

AI extract

What is this about?

The High Court set aside an order rejecting the petitioner's claim for differential bitumen costs, holding it violated previous directions to reconsider the matter. The matter was remitted to the respondent for a fresh decision within two months after hearing both parties. No specific statute was applied.

What did the court decide?

The challenged order (Ext.P17) is set aside and remitted to the 5th respondent to reconsider the claim in compliance with Ext.P14 judgment within two months after hearing the petitioner.

Saji Mathew Vs State of Kerala — 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

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THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945

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WP(C) NO. 3272 OF 2023

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PETITIONER:

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SAJI MATHEW, S/O MATHAI T.M,
AGED 49 YEARS, PWD CONTRACTOR,
THENGUMTHOTTATHIL, KARAKKAMALA P.O.,
MANANTHAVADY, WAYANAD DISTRICT - 670645

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BY ADVS.
ABRAHAM MATHEW (VETTOOR)
ANIL ABEY JOSE
VISHNUJA P.M.

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RESPONDENTS:

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1 STATE OF KERALA

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REP. BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695001

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2 THE PUBLIC WORKS DEPARTMENT,

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GOVERNMENT OF KERALA,
REP. BY ITS SECRETARY,
GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM - 695001

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3 THE CHIEF ENGINEER OFFICE OF THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES), THUCADU, THIRUVANANTHAPURAM - 695014

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4 THE SUPERINTENDING ENGINEER

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PUBLIC WORKS DEPARTMENT,
ROADS NORTH CIRCLE, MANACHIRA,
KOZHIKODE - 673001

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5 THE EXECUTIVE ENGINEER

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OFFICE OF THE EXECUTIVE ENGINEER,

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WP(C) No.3272 of 2023

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PUBLIC WORKS DEPARTMENT, ROADS DIVISION,
WAYANAD, KALPETTA - 673121

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6 THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT ROADS SUB DIVISION, MANANTHAVADY, WAYANAD - 670645

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BY GOVERNMENT PLEADER SRI.RENJITH GEORGE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No.3272 of 2023

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VIJU ABRAHAM, J.

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W.P.(C) No.3272 of 2023

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Dated this the 21^st day of September, 2023

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JUDGMENT

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The above writ petition is filed challenging Ext.P17 order passed

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by the 5^th respondent. It is seen that Ext.P17 order was issued pursuant

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to the direction issued by this Court in Ext.P14 judgment.

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The petitioner is a PWD contractor who had entered into Ext.P1 agreement dated 09.09.2020 with the 4^th respondent in respect of work for providing BM and BC to Thalassery-Baveli Road from KM 86/00 to 93/00 in Wayanad District. Petitioner fully completed the work by 13.10.2021 on the strength of the extension granted up to 15.10.2021 without imposing any fine. The petitioner is entitled to get amounts on account of price variation in bitumen during the agreement period. As per Ext P2 calculation statement of the 6^th respondent, the amount due is Rs.46,64,182/-. The request made by the petitioner was rejected by Ext.P5 holding that the total amount including the differential cost of bitumen is beyond the PAC. Petitioner submits that on the basis of

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WP(C) No.3272 of 2023 4

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Exts.P6, P7, P8 and P9 Government orders, the claim of the petitioner is only to be allowed. Petitioner submits that in Ext.P9 Government order it is made clear that the said order is applicable for all ongoing works for which agreements are executed after 01.11.2008 and therefore, the petitioner is entitled to the benefit of the said order. The petitioner submits that the claim raised by the petitioner is concluded by Exts.P10 and P11 judgments. On the basis of the same, it is the contention of the petitioner that the issuance of Ext.P5, refusing to pay the amount legally due to him is absolutely illegal. Though, the Government came with a subsequent order, which is produced as Ext.P12 wherein the Government discontinued the provision for allowing the price difference of bitumen, but ordered that it would be applicable prospectively only, for all future tenders. Thereupon, the petitioner approached this Court filing W.P(C) No.28772 of 2022 challenging Ext.P5 and the said writ petition was disposed of as per Ext.P14 judgment.

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In Ext.P14 judgment, the court entered a finding that the claim of the petitioner was rejected by Ext.P5 without considering the relevant Government orders and the judgments rendered by the court and therefore issued an order to reconsider the same. On receipt of Ext.P15 notice of hearing, Ext P16 representation was submitted by the petitioner. Without taking into consideration any of the contentions raised

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WP(C) No.3272 of 2023 5

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by the petitioner and without considering the impact of the relevant Government orders and the interpretation of the same given by this Court in the judgments stated supra, the claim of the petitioner was rejected by Ext.P17 order which is challenged in this writ petition. Petitioner contended that by issuance of Ext.P17 order, the 5^th respondent has reintroduced Ext.P5 which has already been set aside by this Court as per Ext.P14 judgment and a perusal of Ext.P17 itself will reveal that the same has been issued in defiance of the directions contained in Ext.P14 judgment.

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A statement has been filed on behalf of the 5^th respondent, wherein the said respondent has explained the circumstances which led to the issuance of Ext.P17 order.

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I have heard the learned counsel for the petitioner as well as the learned Government Pleader.

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The claim of the petitioner was rejected as per Ext.P5 which was challenged in W.P (C) No.28772 of 2022 and this Court as per Ext.P14 judgment, set aside Ext.P5 and directed reconsideration of the request made by the petitioner. Paragraph 4 of the said judgment reads as follows:

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“4. Having heard the learned Counsel on either side and having scrutinized Ext. P5, I find merit in the submission of the learned

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WP(C) No.3272 of 2023

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Counsel for the petitioner that the petitioner's claim for differential cost of bitumen was rejected without considering the Government Orders and the judgments rendered by this Court in the proper manner. There is also merit in the submission that Ext.P12 cannot have any impact on the petitioner's claim since that Government order is dated 26.08.2022. Moreover, it is specifically stated in Ext.P12 that the Government Order is only prospective in effect. In the light of the declaration in Ext. P10 judgment that the benefit will be available to works which were not ongoing as on 01.11.2018 and undertaken prior to 30.04.2021, the 5th respondent is bound to consider whether the petitioner's claim falls within the scope of such declaration. Needless to say that the contention of the Government Pleader that the subject work having been completed after 30.04.2021, the declaration will not benefit the petitioner should also be considered. The fifth respondent having failed to undertake any such exercise, Ext. P5 is set aside and the 5th respondent is directed to take a fresh decision in terms of the Government order and the judgment of this Court.”

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In Ext.P14 judgment, this Court has entered a specific finding that Ext.P5 was issued without considering the relevant Government orders and the judgments rendered by this Court in a proper manner. The Court also entered a finding that Ext.P12 order can have no application as the same is only prospective. The Court also found that in the light of the declaration in Ext.P10 judgment, that the benefit will be available to works which were not ongoing as on 01.01.2018 and undertaken prior to 30.04.2021, the 5^th respondent is bound to consider whether the

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WP(C) No.3272 of 2023 7

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petitioner’s claim falls within the scope of such declaration. A perusal of Ext.P17 would reveal that none of the directions contained in Ext.P14 judgment has been considered while issuing the same. It is settled law that reasons cannot be supplemented by way of a counter affidavit in supporting a Government order. Ext.P17 has been issued in defiance of the directions contained in Ext.P14 in as much as no reasons have been stated as to why the Government orders as well as the judgments cited above are not applicable to the facts and circumstances of the petitioner’s claim.

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In view of the same, I am inclined to interfere with Ext.P17 order and consequently, Ext.P17 is set aside. The matter is remitted back to the 5^th respondent for a reconsideration, strictly in compliance with the directions contained in Ext.P14 judgment in W.P.(C) No.28772 of 2022 and after considering the contentions raised by the petitioner in Ext.P16 representation dated 28.12.2022 and take a final decision in the matter within an outer limit of two months from the date of receipt of copy of the judgment, after affording an opportunity of being heard to the petitioner. It is made clear that if the 5^th respondent requires any clarification in the matter, he shall seek the views of the 3^rd respondent in this regard and if any such request is made by the 5^th respondent, the same shall be promptly addressed by the 3^rd respondent and the 5^th respondent shall

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WP(C) No.3272 of 2023

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take a final decision in the matter after obtaining the views of the 3rd respondent so that a just and proper decision is made on the claim raised

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by the petitioner.

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The writ petition is disposed of as above.

Sd/-

VIJU ABRAHAM

JUDGE

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WP(C) No.3272 of 2023

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APPENDIX OF WP(C) 3272/2023

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`PETITION`	`ER EXHIB`	`ITS`
`Exhibit`	`P1`	`A TRUE COPY OF THE AGREEMENT` `NO.E(K)59/2020-21 EXECUTED BETWEEN THE` `PETITIONER AND THE 4TH RESPONDENT DATED 09-` `09-2020`
`Exhibit`	`P2`	`A TRUE COPY OF THE CALCULATION STATEMENT` `OBTAINED BY THE PETITIONER FROM THE OFFICE` `OF THE 6TH RESPONDENT`
`Exhibit`	`P3`	`A TRUE COPY OF THE LETTER SO SUBMITTED BY` `THE 6TH RESPONDENT TO THE 5TH RESPONDENT` `DATED 29-07-2021`
`Exhibit`	`P4`	`A TRUE COPY OF THE REPRESENTATION SO MADE` `BY THE PETITIONER TO THE 5TH RESPONDENT` `DATED 11-07-2022`
`Exhibit`	`P5`	`A TRUE COPY OF THE REPLY NUMBER` `A2/3677/2020 ISSUED BY THE 5TH RESPONDENT` `TO THE PETITIONER DATED 15-07-2022`
`Exhibit`	`P6`	`A TRUE COPY OF THE GOVERNMENT ORDER SO` `ISSUED BY THE FINANCE (INDUSTRIES AND` `PUBLIC WORKS -B) DEPARTMENT AS GO(RT) NO` `9386/2018/FIN DATED 13-11-2018`
`Exhibit`	`P7`	`A TRUE COPY OF THE GOVERNMENT ORDER ISSUED` `BY THE FINANCE (INDUSTRIES AND PUBLIC WORKS` `-B) DEPARTMENT AS GO(RT) N02816/2020/FIN` `DATED 17-04-2020`
`Exhibit`	`P8`	`A TRUE COPY OF THE GOVERNMENT ORDER ISSUED` `BY THE FINANCE DEPARTMENT (INDUSTRIES AND` `PUBLIC WORKS -B) AS G.O(RT)NO.5502/2020/FN` `DATED 25-09-2020`
`Exhibit`	`P9`	`A TRUE COPY OF THE GOVERNMENT ORDER ISSUED` `BY THE FINANCE (INDUSTRIES AND PUBLIC WORKS` `-B) DEPARTMENT AS GO(RT) NO.3815/2021 DATED` `30-04-2021`
`Exhibit`	`P10`	`A TRUE COPY OF THE JUDGMENT BEFORE THIS` `HON'BLE COURT IN WP(C) NO .23576/2021 DATED`

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WP(C) No.3272 of 2023

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	`11-11-2021`
`Exhibit P11`	`A TRUE COPY OF` `COURT IN WP(C)` `11-2021`	`THE JUDGMENT BY THIS HON'BLE` `NOS. 15722 /2021 DATED 30-`
`Exhibit P12`	`A TRUE COPY OF` `BY THE FINANCE` `-B) DEPARTMENT` `DATED 26-08-20`	`THE GOVERNMENT ORDER ISSUED` `(INDUSTRIES AND PUBLIC WORK` `AS G.O(P) NO. 96/2022/FIN` `22`
`Exhibit P13`	`A TRUE COPY OF` `BY THE 6TH RES`	`THE COUNTER AFFIDAVIT FILED` `PONDENT IN WP (C) 28772/2022`
`Exhibit P14`	`A TRUE COPY OF` `2022 PASSED BY` `28772/2022`	`THE JUDGMENT DATED 21-11-` `THIS HON'BLE COURT IN WP (C)`
`Exhibit P15`	`A TRUE COPY OF` `RESPONDENT TO` `2022`	`THE NOTICE ISSUED BY THE 5TH` `THE PETITIONER DATED 23-12-`
`Exhibit P16`	`A TRUE COPY OF` `REPRESENTATION` `BEFORE THE 5TH`	`THE DETAILED WRITTEN` `MADE BY THE PETITIONER` `RESPONDENT DATED 28-12-2022`
`Exhibit P17`	`A TRUE COPY OF` `PASSED BY THE` `2023`	`THE ORDER NO.A2/3677/2020` `5TH RESPONDENT DATED 09-01-`

Saji Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

Saji Mathew v. State of Kerala

Case brief

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What did the court decide?

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