IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 4154 of 2009(T) ------------------------- PETITIONER(S): --------------- K.P.CHANDRADASAN, S/O.LATE APPUTTY, AGED 63 YRS, GOVERNMENT CONTRACTOR, VISWAHINDU BHAVAN, CHALAPPURAM, KOZHIKODE-673002. BY ADV. SRI.P.R.SREEJITH RESPONDENT(S): --------------- 1. THE DIRECTOR, NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT, NIT CAMPUS, CALICUT-673001. 2. THE EXECUTIVE ENGINEER,ENGINEERING UNIT, NATIONAL INSTITUTE OF TECHNOLOGY,CALICUT, NIT CAMPUS,CALICUT-673601. ADV. SRI.MILLU DANDAPANI FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ---------------------------------------- W.P.(C).No.4154 of 2009 ---------------------------------------- Dated this the 16th day of July, 2009. JUDGMENT The petitioner, a construction contractor, entered into an agreement with the 1st respondent. According to the petitioner, the scheduled rates fixed in the year 2004 was made applicable to the said agreement executed in 2007. 2. It is the petitioner's case that during the currency of agreement and after the work had been undertaken, one of the items which had to be deployed by the petitioner; viz., Tor Steel was unavailable and the petitioner sought for sanction to use TMT steel. This, according to the petitioner, resulted in a situation where an extra item had to be deployed and he further submits that such extra item had to be paid for by the employer as per the rate prevailing in the market. 3. The respondents have apparently taken the stand that if a particular category of steel is not W.P.(C).No.4154 of 2009 :: 2 :: available in the market, it is open to the contractor to substitute the same. The petitioner approached the respondents for treating TMT as an extra item and pay its cost accordingly. By Ext.P7, the respondents took the stand that, as per Clause 9 of the tender agreement, the assumption was that maximum price of steel allowable was only Rs.36,000/- and the maximum cement price was Rs.5,700/- per ton. That if the price exceeds the above amount, the difference, over and above the limit will be considered as per the conditions in the agreement. 4. The petitioner responded to Ext.P7 by Ext.P8 and thereafter by Ext.P10 wherein, he took the stand that Clause 9 of the agreement will apply to the items mentioned in the agreement and not to a new item. The request made by the petitioner was again directed to be considered by an interim order passed by this court and pursuant thereto, the W.P.(C).No.4154 of 2009 :: 3 :: committee has taken a decision, as evidenced by Annexure R1, resolving that the decision made earlier was as per the original agreement and no change is possible. 5. The petitioner submits that Annexure R1 is not a considered decision and has not addressed the issue raised in Ext.P10. The respondents submit that what is involved is an application of the terms of the agreement and the respondents have decided to affirm the stand taken in Ext.P7. 6. The question as to whether TMT steel is eligible to be treated as an extra item or whether maximum price mentioned in the schedule of agreement as regards Tor steel is applicable to the said item also is not a matter that can be effectively decided under Article 226 of the Constitution. These are matters, which arise from an agreement and normally it requires adduction of evidence before a civil court. W.P.(C).No.4154 of 2009 :: 4 :: In these circumstances, reserving the liberty of the petitioner to pursue his remedies in terms of the agreement and/or before the civil court, the writ petition is disposed of. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge