IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 9071 of 2009(D) ---------------------------------- PETITIONER : ----------------------- P.ABDUL RAZAK AGED 55 YEARS, S/O. P.M.MOIDEENKUTTY HAJI PULLIYIL MADASSERI HOUSE, P.O.MELMURI, (P.W.D.CONTRACTOR). BY ADV. SRI.ESM.KABEER SRI.ABDUL MAJEED.N RESPONDENTS : ------------------------ 1. THE SUPERINTENDING ENGINEER, MINOR IRRIGATION CIRCLE, KOZHIKODE. 2. THE EXECUTIVE ENGINEER MINOR IRRIGATION DEPARTMENT, MALAPPURAM. 3. ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, THIRURANGADI. SRI. P.N. SANTHOSH, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. --------------------------- W.P.(C) No. 9071 of 2009 ------------------------------------ Dated this the 20th day of March, 2009 JUDGMENT Challenge in this writ petition is against Exhibit P13 to the extent agreement that the petitioner had entered with the respondents is terminated, at the risk and cost of the petitioner. 2. Facts of the case are that the petitioner had entered into an agreement with the respondents for the work of improvements to Drainage system in Moraya Kappu in Nannambra Grama Panchayath. In terms of agreement, the work ought to have been completed on or before 25/02/2008. Admittedly 20% of the work alone has been completed. In the meanwhile petitioner sought extension of time to complete the contract till 31/05/2009, which was allowed by Exhibit P6. However, it is again the admitted position that he could not make substantial progress. The second respondent issued orders one after another requiring the petitioner to complete the work without any delay. As he could not make progress in the work, petitioner himself made Exhibit P11 representation to the second respondent to terminate the agreement with out risk and W.P.(C) No. 9071/2009 2 cost clause relying on Exhibit P12 Government Order. The work was terminated by Exhibit P13, at the risk and cost of the petitioner and it is in these circumstances writ petition is filed. 3. Referring to Exhibit P12 Government Order, petitioner submits that if termination is necessitated for no fault of the contractor, the contractor cannot be saddled with the risk and cost provision. He also referred me Exhibit P6 in this context. 4. According to the respondents, the petitioner alone is to be faulted for the work remaining incomplete. While respondents raised this contention, petitioner is pleading otherwise. Therefore, it is essentially a disputed question of fact as to whether who is to be blamed for not completing the work in question. Unless a finding on that issue is arrived at, the validity of Exhibit P13 cannot to be decided. Therefore, the writ petition is dismissed leaving in open to the petitioner to seek remedies before the Civil Court. ANTONY DOMINIC, JUDGE scm