Allowed

Vijay Construction, v. State of Kerala, Represented by Its Secretary

Kerala HC6 Mar 2024WP(C)/14195/2023

Case brief

AI extract

What is this about?

Petitioner challenged the termination of a construction contract by the Superintending Engineer. High Court held that disputable facts barred immediate judicial determination and remanded the matter to reconsider the extension claims.

What did the court decide?

Ext.P13 set aside; respondent to hear petitioner and decide extension claims within one month.

Vijay Construction, Vs State of Kerala… — Public Procurement and Tenders | Kerala HC (2024)

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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

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WEDNESDAY, THE 6^TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945

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WP(C) NO. 14195 OF 2023

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PETITIONER:

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VIJAY CONSTRUCTION, REPRESENTED BY ITS MANAGING PARTNER M.P ITTOOP, S/O. ITTAN VARGHESE, AGED 84 YEARS MYKULANGARA HOUSE KINGINIMATTOM P.O., KOLENCHERY - 682311 BY ADVS. BLAZE K.JOSE GOPIKA P. S.NIKHIL RAJEEV KAMALA.P.S.

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVNANTHAPURAM - 695001

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2 SUPERINTENDING ENGINEER, PWD ROADS CENTRAL CIRCLE, ALUVA, PIN - 683101

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3 EXECUTIVE ENGINEER, PWD ROADS DIVISION, MUVATTUPUZHA, PIN - 686673

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4 ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION, PERUMBAVOOR, PIN - 683542

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5 ASSISTANT ENGINEER, PWD ROADS SECTION, PERUMBAVOOR, PIN - 683542 BY ADV.

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SRI.P.S.APPU - GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR

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ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.14195 of 2023

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JUDGMENT

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The petitioner impugns Ext.P13 on various grounds, but

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primarily that its contents are incorrect and without any factual basis.

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Sri.Blaze K.Jose – learned counsel for the petitioner, pointed out that the contract awarded to his client has now been sought to be terminated at their risk and cost by the Superintending Engineer of the Public Works Department (PWD), on the ground that, even though it was extended until 25.01.2023, they did not begin the work and that they allegedly conceded before the said Authority that they could not do so. He vehemently submitted that the afore statements in Ext.P13 are belied by Exts.P9 and P10 communications issued by his client, wherein, they have expressed their unequivocal assent to begin the work forthwith and to complete it within certain time limits. He contented that, instead of considering Exts.P9 and P10 in its proper perspective, the Superintending Engineer appears to have created Ext.P11 minutes, which was followed by Ext.P13 order, stating in the afore manner. He, therefore,

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W.P.(C).No.14195 of 2023

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prayed that Ext.P13 be set aside; and his client's request, for extension of time to complete the work as recommended in Ext.P2 by the Assistant Executive Engineer, P.W.D (Roads) Sub Division, be directed to be considered and allowed within a time frame to be fixed by this Court.

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Sri.P.S.Appu – learned Government Pleader, in

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response, submitted that the afore assertions of the petitioner are self-serving, particularly when as stated in Ext.P13, they had been given time till 25.01.2023, to complete the work, which is evident from Ext.R2(a) minutes; and, therefore, that the petitioner could not have approached this Court through this writ petition, suppressing the afore fact. He thus prayed that this writ petition be dismissed.

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In reply, however, Sri.Blaze K.Jose – learned counsel

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for the petitioner, submitted that, Ext.R2(a) minutes has nothing to do with the work in question, or the extension that is alleged to have been granted to his client. He reaffirmed and restated that no such extension order was ever issued to the petitioner; and thus again prayed that the reliefs sought for in this writ petition be granted.

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W.P.(C).No.14195 of 2023

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When I consider and evaluate the afore rival submissions on the touchstone of Ext.P13, which is the order impugned, it is limpid that the Superintending Engineer has proceeded on the basis that the petitioner did not commence the work in spite of having been granted extension of time till 25.01.2023; and that they had conceded before the said Authority that they could not do so. This factum is severely contested by the petitioner, as has already been recorded above.

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Obviously, there are disputations of facts between the parties, which certainly also ought to be resolved to the extent possible. This cannot, however, be done by this Court, while acting under Article 226 of the Constitution of India, in the first instance; and am, therefore, of the view that the petitioner is entitled to some relief.

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That said, when I examine Ext.P13, it records that the petitioner was granted the afore extension, but that they had submitted that they could not complete the work, even if granted more extensions. However, Exts.P9 and P10 letters issued by them speak to the contrary, though there is a

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W.P.(C).No.14195 of 2023

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question as to whether Ext.P11 minutes – which is seen recorded on 28.02.2023 – state the correct facts.

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Indubitably, therefore, the entire matter will require to be reconsidered by the Superintending Engineer, after hearing the petitioner, particularly assessing their afore assertions and adverting to Exts.P9 and P10.

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Of course, this is not to mean that this Court has found in favour of the petitioner, but solely that they require an opportunity to be granted, for substantiating their version before the Superintending Engineer, especially when they assert that they have not received a copy of the extension order and that they never refused to complete the work, if granted more time.

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In the afore circumstances, I allow this writ petition and set aside Ext.P13; with a consequential direction to the 2^nd respondent – Superintending Engineer, to hear the petitioner and take a decision on all their claims, including that they are willing to complete the work, if granted the opportunity, within a period of one month and that they have already expressed their willingness to do so, through Exts.P9 and

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P10. Of course, if the Superintending Engineer is willing to accede to this, he can pass an order on appropriate terms; or if, on the contrary, he finds reasons not to do so, then he must issue an apposite order detailing his opinion.

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The afore shall be done as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.

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Sd/DEVAN RAMACHANDRAN JUDGE

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anm

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W.P.(C).No.14195 of 2023

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APPENDIX OF WP(C) 14195/2023

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PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE APPLICATION FOR THE EXTENSION OF TIME DATED 25-10-2022 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT Exhibit P2 A TRUE COPY OF THE LETTER NO P.2095/20 DATED 5.11.2022 FROM THE 5TH RESPONDENT TO THE 4TH RESPONDENT Exhibit P3 A TRUE COPY OF THE LETTER NO 913/2021 DATED 5-11-2022 BY THE 4TH RESPONDENT TO 3RD RESPONDENT Exhibit P4 A TRUE COPY OF THE PRESS RELEASE ISSUED BY THE 5TH RESPONDENT Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED 23-12-2022 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit P6 A.TRUE COPY OF THE REPRESENTATION DATED 18-01-2023 FROM THE PETITIONER Exhibit P7 A TRUE COPY OF THE LETTER DATED 15-022023 ISSUED TO THE PETITIONER [email protected] Exhibit P8 A TRUE COPY OF THE EMAIL DATED 25-022023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER ON HIS EMAIL [email protected] Exhibit P9 A TRUE COPY OF THE REPRESENTATION DATED 28/2/2023 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit P10 A TRUE COPY OF THE E-MAIL SUBMITTED ON 28/2/2023 TO THE 2ND RESPONDENT Exhibit P11 A. TRUE COPY OF THE MINUTES OF THE MEETING DATED 28/02/2023 OF THE SECOND RESPONDENT Exhibit P12 A TRUE COPY OF THE JUDGMENT IN WP(C) 7679 OF THE 2023 DATED 07-03-2023 Exhibit P13 A TRUE COPY OF THE ORDER NO DMPRD/2020/2095 DATED 07-03-2023 ISSUED BY THE 2ND RESPONDENT Exhibit P14 A TRUE COPY OF THE JUDGEMENT IN WP(C) 16137 OF 2020 DATED 1-02-2021

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W.P.(C).No.14195 of 2023

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RESPONDENTS' EXHIBITS

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Exhibit R2(a)	TRUE COPY OF	THE MINUTES
Exhibit R2(b)	TRUE COPY RD/2020/2095 THE 2ND RESPO	OF THE LETTER NO.DMP- DATED 18.02.2023 ISSUED BY NDENT
Exhibit R2(c)	TRUE COPY 25.02.2023 IS	OF THE LETTER DATED SUED BY THE 2ND RESPONDENT
Exhibit R2(d)	TRUE COPY 15.02.2023	OF THE LETTER DATED
Exhibit R2(e)	TRUE COPY OF THE AGREEMENT	THE RELEVANT EXTRACTS OF .

Vijay Construction, v. State of Kerala, Represented by Its Secretary

Case brief

What is this about?

What did the court decide?

Vijay Construction, v. State of Kerala, Represented by Its Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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