IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 22620 of 2011(B) -------------------------- PETITIONER(S): ----------------------- SIRLY JOSE, P.W.D.CONTRACTOR, VALIYA PRAMBIL, THACHAMPARA, PALAKKAD DISTRICT. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM - 695001. 2. THE CHIEF ENGINEER, IRRIGATION & ADMINISTRATION, PUBLIC BUILDINGS, MUSEUM P.O., THIRUVANANTHAPURAM - 695001. 3. THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, MALAPPURAM - 676505. SR.GOVT.PLEADER SMT.M.J.RAJASHREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.22620/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE TENDER NOTICE DT 11.8.11. EXT.P2: TRUE COPY OF THE SELECTION NOTICE DT 27.10.09. EXT.P3: TRUE COPY OF THE LETTER DT 5.3.10. EXT.P4: TRUE COPY OF THE SELECTION NOTICE DT 27.10.09. EXT.P5: TRUE COPY OF THE LETTER DT 24.2.2010. EXT.P6: TRUE COPY OF THE TERMINATION ORDER 28.9.2010. EXT.P7: TRUE COPY OF THE SELECTION NOTICE DT 27.10.09. EXT.P8: TRUE COPY OF THE LETTER DT 6.3.10. EXT.P9: TRUE COPY OF THE TERMINATION ORDER DT 28.9.10. EXT.P10: TRUE COPY OF THE REPRESENTATION TO THE SECRETARY, IRRIGATION DEPT.,TVM DATED 22.2.11. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 22620 OF 2011 ===================== Dated this the 27th day of September, 2011 J U D G M E N T Petitioner is a contractor. Ext.P1 is the tender notice inviting tenders for the works mentioned therein. Petitioner quoted for three works and was issued Exts.P2, P4 and P7 selection notices, following the approval of the offers made by the petitioner. It is seen that, by Exts.P3 and P8, he was called upon to execute agreements which was not done and finally the works awarded to the petitioner were terminated by Exts.P6 and P9 termination orders at the risk and cost of the contractor. Petitioner thereupon submitted Ext.P10 representation for return of the EMD on the allegation that what led to the termination is breach of contract committed by the respondents. It is thereupon the writ petition is filed. 2. A reading of Exts.P6 and P9 and the pleadings in the writ petition show that while the petitioner is accusing the respondents of having committed breach of the contract, the reason for termination is breach alleged on the part of the petitioner. This therefore discloses that the issues raised in the WPC No. 22620/11 :2 : writ petition involve disputed question of fact and therefore the remedy of the petitioner is not in a proceedings under Article 226 of the Constitution of India. Reserving the petitioner's liberty to seek his remedy in appropriate proceedings, the writ petition is disposed of. ANTONY DOMINIC, JUDGE Rp