IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 36900 of 2008(P) -------------------------- PETITIONER(S): --------------- K.K.SUNIL KUMAR, GOVERNMENT CONTRACTOR, 'UDHYANAM', CHANGANKULANGARA, OACHIRA P.O., KOLLAM. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.K.HARILAL SRI.BINDU SREEKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 4. THE SUPERINTENDING ENGINEER, OFFICE OF THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 5. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, PWD BUILDINGS DIVISION, KOLLAM. MR.DILIP MOHAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.36900/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE SELECTION NOTICE NO.BSC/2537/07/D1 DATED 13/02/2008. P2 : COPY OF AGREEMENT DATED 15/02/2008 EXECUTED BY THE PETITIONER. P3 : COPY OF THE WORK ORDER NO.D5.2926/08 DATED 03/05/2008. P4 : COPY OF THE G.O.NO.84/97/PW&T DATED 19/08/1997 ISSUED BY PWD DEPARTMENT. P5 : COPY OF THE LETTER NO.D5-2926/2005 DATED 20/06/2008 SENT BY R5 TO R3. P6 : COPY OF THE ACKNOWLEDGEMENT FORM OF HANDING OVER THE SITE GIVEN BY PETITIONER TO ASSISTANT ENGINEER. P7 : COPY OF INTIMATION RECEIVED VIDE PB(4) 18550/2007/DES DATED 23/10/2007. P8 : COPY OF REPRESENTATION DATED 20/05/2008 SUBMITTED BY THE PETITIONER. P9 : COPY OF REPRESENTATION SENT TO R3 BY THE PETITIONER DATED 20/05/2008. P10 : COPY OF REPRESENTATION DATED 26/06/2008 SUBMITTED BY PETITIONER BEFORE R1. P11 : COPY OF JUDGMENT DATED 14/07/2008 PASSED BY THIS HONOURABLE COURT IN WP(C) NO.21180/08. P12 : COPY OF THE AFFIDAVIT DATED 10/11/2008 FILED BY THE PETITIONER BEFORE THE SECRETARY TO GOVERNMENT. P13 : COPY OF THE ACKNOWLEDGMENT OF HANDING OVER OF THE SITE DATED 01/09/2008. P14 : COPY OF THE G.O.(Rt.)NO.1530/2008/PWD DATED 10/09/2008. P15 : COPY OF THE G.O.(Rt.)NO.1532/2008/PWD DATED 15/09/2008. P16 : COPY OF THE G.O.(Rt.)NO.1573/2008/PWD DATED 20/09/2008. P17 : COPY OF THE G.O.(Rt.)NO.1665/2008/PWD DATED 29/09/2008. P18 : COPY OF THE G.O.(Rt.)NO.1649/2008/PWD DATED 25/09/2008. WPC NO.36900/2008 P19 : COPY OF THE G.O.(Rt.)NO.1497/2008/PWD DATED 02/09/2008. P20 : COPY OF THE PROJECT STATUS OF AYIRAMTHENGU AZHEECKAL BRIDGE IN KOLLAM DISTRICT SENT BY R5. P21 : COPY OF LETTER DATED 29/10/2008 SENT BY THE INFORMATION OFFICER TO THE PETITIONER. P22 : COPY OF THE PROCEEDINGS OF R4 DATED 15/03/2005 ON THE APPLICATION OF CONTRACTOR CHERIAN VARKEY. P23 : COPY OF ORDER NO.GO(Rt.)NO.2008/2008/PWD DATED 29/11/2008 PASSED BY R1. P24 : COPY OF LETTER NO.CE/BL/KLM/6143/2006 DATED 30/09/2008. P25 : COPY OF LETTER NO.28890/E1/2008/PWD DATED 19/12/2008. P26 : COPY OF LETTER HANDING OVER THE SITE DATED 11/04/2008 ISSUED BY THE DIRECTOR, PRINTING DEPARTMENT TO R5. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------ WP(C) No.36900 of 2008-P -------------------------- Dated, this the 29th day of September, 2009 ------------------------------ J U D G M E N T Challenge in the writ petition is against Ext.P23 order, and consequential reliefs are also sought for. 2 Briefly stated, the facts of the case are that by tender notice dated 15/09/2007, tenders were invited for the construction of a building for Government Press and Training Centre at Umayanalloor, Kollam District. The petitioner submitted his tender and finally, his offer was accepted. It is stated that applying 2007 Schedule of Rates, the work was awarded to him, and agreement was executed between the parties on 15/02/2008. Though the work order was issued on 03/05/2008, the site was handed over to him only on 01/09/2008. The petitioner submits that in the meantime, he constructed a compound wall enclosing the site. 3. It is stated that in the meantime, with effect from 01/04/2008, the 2008 Schedule of Rates was implemented revising the rates then in force. He submitted Ext.P8 representation WP(C) No.36900/2008 -2- requesting the respondents to give him the benefit of the 2008 Schedule of Rates. The representation was not considered and thereupon the petitioner approached this Court by filing WP(C) No.21180/2008, which was disposed of by Ext.P11 judgment dated 14/07/2008 directing the 1st respondent to consider Ext.P8. The petitioner submits that subsequently, he filed Ext.P12, a detailed affidavit, before the 1st respondent justifying his claims. 4. Referring to Exts.P19 & P22, it is also pointed out that certain other contractors, who according to him are similarly situated, were given the benefit of rate revision as sought for by him. He also submits that by Ext.P25, the Tender Committee also recommended his case for rate enhancement. It is stated that without considering any of the above contentions, by Ext.P23 order dated 29/11/2008, on the ground that the agreement is a fixed rate agreement with a commitment that no rate revision will be sought for, the request was rejected. It is contended that the Government, having conceded such claims of similarly situated contractors and having given the benefit of rate enhancement, especially when the Tender Committee had recommended his case, was not justified in WP(C) No.36900/2008 -3- rejecting the petitioner's request for rate revision as per the 2008 Schedule of Rates. 5. The respondents have filed a detailed counter affidavit justifying Ext.P23 order. According to the respondents, the case dealt with in Exts.P19 & P22 are not comparable with the case of the petitioner. They also assert their entitlement to decide the case even in spite of Ext.P25, which according to them only contains a recommendation. It is stated that the dispute is one arising under a contract and involves disputed questions of fact and hence, cannot be resolved in a writ petition. 6. At this stage, this Court is only concerned with the validity of Ext.P23 order, and the question is whether, while deciding the claim against the petitioner, the respondents have taken into account relevant facts and documents, which were produced by the petitioner. A reading of Ext.P23 order shows that in spite of the fact that in Ext.P12 affidavit filed by the petitioner various points were urged by him in justification of his claim, and reliance is also placed on Exts.P19, P22 & P25, in the impugned order not even a reference is made to these documents as also the WP(C) No.36900/2008 -4- contentions urged. 7. Although, in the counter affidavit filed, an attempt has been made to justify Ext.P23, since the validity of the order has to be judged in the light of the reasons stated therein, I am of the view that the reasons supplied through the affidavit cannot be pressed into service to sustain Ext.P23. Therefore, Ext.P23 order does not disclose a consideration of the relevant aspects, and for that reason, I am inclined to interfere with Ext.P23. Accordingly, I set aside Ext.P23 and direct the 1st respondent to reconsider the claim of the petitioner urged by him in Ext.P8 representation in the light of Ext.P12 affidavit and Exts.P19, P22 & P25 referred to above. This shall be done with notice to the petitioner as expeditiously as possible, at any rate, within three months of production of a copy of this judgment. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg