Joseph Jacob Vs the Chairman & Managing Director

The above writ petition is filed challenging Ext.P15 proceedings and seeking a consequential direction to the respondents to release a sum of Rs.45,93,750/- being the revision of rate with future interest @12% from the date of completion of the work till recovery.

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The brief facts necessary for the disposal of the writ petition are as follows:

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The petitioner is a contractor of the K.S.E.B, who has been issued with Ext.P1 work order for the construction and drawing of 220 KV D.C line from Sabarigiri to Edamon. The said work was originally awarded to another contractor, but due to the dispute between the contractor and K.S.E.B., the work was abandoned. The petitioner submits that the said line passes through the dense forest of Western Ghats and for drawing of the line, the workers had to work in extreme adverse conditions. Though clause 28 of

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Ext.P1 mandates that no revision of rates will be allowed on any account, the same was not accepted by the petitioner. Thereupon he addressed to the respondent that without the revision of rates he is not prepared to take up the work. In response to his letter, Ext.P2 communication was issued wherein the Board has agreed that rates will be firm during the contract period of 15 months from the date of execution of the agreement and if the work is not completed within this period solely due to the omissions /commissions on the part of the Board, the petitioner is free to open the issue after the contract period. After completion of the work with much difficulty, the petitioner submitted the final bill, which of course exceeded the original estimate. Therefore, some dispute arose with regard to the fixation of quantum of amount due to the petitioner. The respondents slept over his final bill for more than 8 years and aggrieved by the same the petitioner has approached this Court filing W.P.(C)No.12625/2004 and this Court directed the Board to consider the representation submitted by the petitioner and thereafter the said representation was disposed of as per Ext.P4 wherein it is decided as follows:

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“The entire matter was placed before the Full Board and as

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per the direction of the Full Board, negotiation was made with the contractor by the Chief Engineer (TransmissionSouth) and then by Member (Transmission). An amount of Rs.13.19 Lakhs which includes retention is pending payment to the contractor. Since the work is entrusted with rate contract basis, claim of the contractor for revision of rate is not agreeable. The contractor has refused to come down from his claims for rate revision and requested to release the payment for the earth filling at Location. No.5.

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Considering the matter in detail, the Board decided to accept the completion report amounting to Rs.1,83,51,602/(Rupees One Crore Eighty Three Lakhs Fifty One Thousand Six Hundred and Two only) in favour of Sri.Joseph Jacob towards the work of construction of 220 KV DC line from Sabarigiri – Edamon provided the overall claims are limited to the estimate as per completion report subject to verification of the measurement(and subject to the condition that no escalation of rates will be allowed over and above the agreed rate as per the contract.

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The Board further orders that final payment and retention along with the amount withheld to the contractor, Sri. Joseph Jacob towards the above work be released. The actual expenditure incurred by the contractor for filling the revetment at Location No.5 of the line will be worked out and released.”

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Being not satisfied with Ext.P4, Ext.P5 request was made by the petitioner, which was disposed of as per Ext.P6 and the relevant part of which reads as follows:

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“8. Earlier, Board had entrusted the then Member (Transmission) to conduct a personal hearing with Sri. Joseph Jacob for working out a package for settlement of the claims of the contractor. Accordingly, a meeting was conducted with the contractor on 17.07.2006. In the meeting, the contractor has raised a claim of Rs. 5 Lakh for the subject item among other things.

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9. Therefore in a way to settle the matter, further negotiation was conducted by the Board with the contractor on 16.02.2011 to explore the possibility of reducing his claim of Rs.5 Lakh for the item. Accordingly, the contractor vide his letter dated 18.02.2011 has expressed his willingness to reduce his claim for the items to Rs.4 Lakh.

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10. The negotiated amount of Rs.4 lakh is found to be the lowest when considering the various options. The estimate amount for the item as per Schedule of Rates 1992 comes to Rs.2,35,703/-.

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11. Therefore, in pursuance of the Board Order dated 13.07.2007, sanction is hereby accorded for effecting payment for the item of filling the revetment at Location No.5 of the 220 KV DC Sabarigiri-Edamon line as per the estimate rate of 1992 Schedule of Rates for the executed quantities in addition to Rs.1,64,297/- towards compensation for the undue delay in effecting the payment limiting the expenditure to Rs.4 Laks (Rupees Four Lakh only)

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The Chief Engineer (Transmission-South) shall take further necessary action.”

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Since the petitioner has raised a grievance that the Board has not

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addressed his genuine demand for revision of rates, the petitioner negotiated with the Board regarding the payment of the amount, and accepted that the matter could be settled for an amount of Rs.45,93,750/-. The petitioner would submit that by Ext.P7 order, the Board has recommended the rate revision of 35%. The petitioner would also submit that as per Ext.P8 and P9 the respondents have admitted the delay on their part in the completion of the work. As the claim was not settled by the Board, the petitioner again approached this Court filing W.P. (C)No.20998/2011, which was disposed of as per Ext.P10 and the Board without affording an opportunity of hearing and without considering the crucial question of revision of rates, rejected the claim of the petitioner by Ext.P11 order. Ext.P11 order was again challenged before this Court and as per Ext.P12 this Court has set aside the order under challenge and directed the respondents to consider the request of the petitioner and pass orders thereon. Later by Ext.P13 the claim of the petitioner was rejected and challenging the same the petitioner has filed W.P. (C)No.29950/2016 and this Court by Ext.P14 judgment again quashed Ext.P13 and directed reconsideration. Thereupon the

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petitioner was called for a meeting and he submitted all the evidences in support of the rate revision. Later the claim was rejected by Ext.P15. It is aggrieved by the same that the present writ petition has been filed.

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A detailed counter affidavit has been filed by the respondents wherein they have challenged the maintainability of the writ petition contending that it is a purely a civil dispute arising out of a contractual relationship between the petitioner and the respondents covered by Ext.P1 award of work and in matters involving adjudication of disputed facts, same cannot be adjudicated in a writ petition and that the petitioner has to avail other alternate remedies to adjudicate the disputes. In the counter affidavit it is admitted that though the date fixed for completion of work as per agreement was March, 1991, due to various reasons it was commissioned only during May, 1994. Extensions for the work was granted to the petitioner up to June 1994 on condition that 'no revision of rates will be allowed over and above the agreed rates specified in the contract'. Various reasons have been stated in the counter affidavit for the delay in completing the work. It is further submitted that on actual execution of the work, the amount of work

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done by the petitioner came to Rs. 1,83,51,602/-, which is 313.6% over and above the quoted PAC. The completion report for the said amount was accepted by the Board and the amount was paid to the petitioner. While deciding to accept the completion report for Rs.1,83,51,602/-, it was specifically stipulated by the Board that 'no revision of rates will be allowed over and above the agreed rates specified in the contract. With respect to the additional work carried out by the petitioner, an amount of Rs. 2,35,703/- was paid as per the estimate rate of 1992 SOR, in addition to Rs.1,64,207/towards compensation for the undue delay in effecting the payment, thereby limiting the total expenditure in this regard to Rs.4 lakhs. The same was also accepted by the petitioner. It is thereafter that the petitioner has raised a claim for revision of rates and claimed an amount to the tune of Rs.75 lakhs. It is further submitted that after Ext.P14 judgment, the matter was considered in detail by the Board and on perusal of the relevant documents it is revealed that more than 94% of the departmentally issued materials were transported to the site much ahead of 9/1992, ie., the date of the schedule of rates was revised and only less than 6% materials is seen transported after 9/1992. The

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transportation of 6% of materials after 9/1992 was not due to any fault on the part of the Board, but due to the delay on the part of the contractor in transporting material and due to non-utilization of the available materials in time by the petitioner. It is also contended that all clearances for the construction of line were obtained and communicated well in advance and therefore, there is absolutely no delay on the part of the Board. The Board has also taken note of the fact that some additional items of work as well as some excess quantities were necessitated for the successful completion of work. The rates for the extra items of work were not decided in the tender but were mutually agreed through negotiation at the time of execution during the period from 1992 to 1994. As a result, the contract amount was increased to Rs.1,83,51,602/- against the original contract amount of Rs.44,41,720/-. Supplementary agreements were executed for the additional works at mutually agreed rates and the entire amount due as per the agreed rates has also been paid to the petitioner. Additionally, an amount of Rs.1,64,297/- was also paid to the petitioner towards compensation for belated payment. In the light of the above it is contended that whatever amount due to the

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petitioner has been paid by the Board and taking into consideration all the above said aspects, the claim of the petitioner was rejected as per Ext.P15.

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The petitioner has not filed any reply affidavit refuting any of the contentions taken in the counter affidavit.

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I have heard the rival contentions on both sides.

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It is true that this Court has interfered with the decision made by the Board on various occasions. Ultimately by Ext.P14 judgment this Court set aside the order holding that the Board has not taken into consideration the issue as to whether there was delay on the part of the Board in completing the work awarded to the petitioner. Having not done so, this Court by Ext.P14 order, set aside the order impugned therein and directed reconsideration. Thereafter the matter considered in detail by the Board and on the basis of the relevant records, by Ext.P15 order the Board entered into a finding that 94% of the departmentally issued materials were transported to the site much ahead of 9/92, the date of implementation of the revised rate and only less than 6% material is seen transported after 9/92 and it was further found that there was delay on the part of the contractor in executing the work and

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the fact that items such as earth work, masonry etc. which require no departmental materials for its completion were not completed during the scheduled completion period, which underlines the delay on the part of the contractor and it is on said basis that the Board has entered into a finding in Ext.P15 that there in no delay on their part. A perusal of the counter affidavit would reveal that though the original award was for an amount of Rs.44,41,720/ , based on a completion report submitted by the petitioner the amount was Rs.1,83,51,602/-, an increase of 313.6% over an above the quoted PAC was approved by the Board with a specific condition that no revision of rates will be allowed over and above the agreed rates specified in the contract and the amount was also received by the petitioner. It is also revealed from Ext.P13 that an additional amount of Rs.4 Lakhs was sanctioned towards additional work and that an amount of Rs.1,64,297/- was additionally paid by the Board towards compensation for belated payments.

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In Ext.P15 there is a specific finding on the basis of materials on record that the delay cannot be attributed on the part of the Board and that there was delay on the part of the contractor in completing the work within the time stipulated. On the other hand

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the case of the petitioner is that the delay is only attributable on the part of the Board and therefore, he is entitled for the revised rates. Such disputed questions of facts cannot be adjudicated in a writ petition and therefore, I am not inclined to interfere with the order impugned herein. It is for the petitioner to raise his claim in appropriate proceedings in accordance with law. Leaving open such right of the petitioner, the writ petition is dismissed.

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Sd/- VIJU ABRAHAM JUDGE

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sm/

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APPENDIX OF WP(C) 7933/2022

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PETITIONER EXHIBITS

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Exhibit P1	A TRUE COPY OF THE WORK ORDER 12.10.1989 ISSUED TO THE PETI	DATED TIONER.
Exhibit P2	TRUE COPY OF THE ORDER DATED ISSUED BY THE RESPONDENTS.	15.11.1989
Exhibit P3	TRUE COPY OF THE CLAIM DATED SUBMITTED BY THE PETITIONER.	17.07.2006
Exhibit P4	TRUE COPY OF THE ORDER DATED ISSUED BY THE RESPONDENT.	13.07.2007
Exhibit P5	TRUE COPY OF THE LETTER DATED ISSUED BY THE RESPONDENT.	18.02.2011
Exhibit P6	TRUE COPY OF THE ORDER DATED ISSUED BY THE RESPONDENT.	16.04.2011
Exhibit P7	TRUE COPY OF THE COMMUNICATIO ENGINEER (ELECTRICITY TRANSMI NO.T2(B)637/79/C TO THE K.S.E	N CHIEF SSION) .BOARD.
Exhibit P8	TRUE COPY OF THE COMMUNICATIO EXECUTIVE ENGINEER DATED 23.0	N FROM THE 4.1993.
Exhibit P9	TRUE COPY OF THE COMMUNICATIO EXECUTIVE ENGINEER DATED 30.0	N FROM THE 6.1994.
Exhibit P10	TRUE COPY OF THE JUDGMENT DAT IN WP(C) NO.20998/2011.	ED 2.8.2011
Exhibit P11	TRUE COPY OF THE ORDER DATED ISSUED BY RESPONDENT.	21.10.2011