IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 WP(C).No. 36276 of 2008(R) -------------------------- PETITIONER: ------------------ THOMAS P.MALIAKAL, MALIAKAL GROUP OF INDUSTRIES, MALIAKAL HOUSE, PULINKUNNU P.O. ALAPPUZHA. BY ADV. MR. JOMY GEORGE RESPONDENTS: --------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER, PWD ROAD AND BRIDGES, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, PWD ROAD AND BRIDGES, ALAPPUZHA. BY GOVERNMENT PLEADER MR. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36276 of 2008(R) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 7.09.2007. P2: COPY OF THE LETTER DATED 12.02.2008 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A. TO JUDGE kkms/ V.GIRI, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 36276 OF 2008 = = = = = = = = = = = = = == = = = = = = = Dated this the 14th day of October 2009. JUDGMENT The 3rd respondent invited tenders on 25.12.2004 for conducting a Junghar Service at Pulinkunnu Ferry for the period from 01.04.2005 to 31.03.2006. Petitioner quoted an amount of Rs.10,10,320/- which was 178% above the estimated rate. It seems that the Chief Engineer, second respondent, had recommended the petitioner's tender on 13.05.2005. But there was some delay thereafter with the Government and ultimately the recommendations of the Tender Committee was accepted by the Government and the Government decided to accept the lowest tender received from the petitioner at a rate of 110% above the estimated rate. Para 4 of the Proceedings of Government reads as follows:- 4. Government considered the recommendation of the Government Tender Committee and decided to accept the lowest tender received from Shri. Thomas P. Maliakal, Maliakal Group of Industries at the rate of 110% above ER (1999 SOR) of Rs.10,10,320/- (Rupees Ten Lakhs Ten thousand three hundred and twenty only) for conducting Jungar Service using passenger boat at Pulimkunnu ferry for the period from 01.04.2005 to 31.03.2006 and order accordingly. W.P.(C). No. 36276 OF 2008 2 2. Petitioner conducted the Junghar from 01.04.2005 to 31.03.2006. A tender for the period subsequent was floated only later and a fresh agreement was executed only on 04.12.2008. The said agreement, dated 04.12.2008, covers the period from 01.04.2008 onwards. Apparently, therefore, an agreement was executed, pursuant to Ext.P1, accepting the petitioner's tender at 110% above the estimated rate, and this was for the period from 01.04.2005 to 31.03.2006, as stated above. The agreement contains the Clause that the licensee would be obliged to operate the Junghar Service under the same terms and conditions, as are contained in the agreement, till a fresh agreement is executed. An agreement for the period subsequent to the agreement executed pursuant to Ext.P1, covered only the period from 01.04.2008 onwards and this was at a different rate. 3. Insofar as the period from 01.04.2005 to 31.03.2006 specifically provided for Ext.P1 is concerned, an agreement came to be executed only on 31.01.2008. But the said agreement dated 31.01.2008 specified the period as 01.04.2005 to 31.03.2006 and also provided for continuation of the operation of the Junghar Service beyond 31.03.2006, till a fresh agreement is executed. W.P.(C). No. 36276 OF 2008 3 4. The petitioner has not been paid the amounts in terms of Ext.P1 Government Order or the agreement executed on the basis of the same. The department has taken the stand that the petitioner will be eligible for the rate at 110% above the estimated rate only with effect from 31.01.2008, the date of which the agreement was executed. According to the department, the agreement comes into being only on the date on which it was actually executed, namely 31.01.2008 and the petitioner would be entitled to licence fees only at the rate provided for in the agreement which was executed for the period prior to 01.04.2005, till the new agreement was executed on 31.01.2008. This is the subject matter of controversy. 5. Indisputably, Ext.P1 Government Order provides for the operation of a Junghar Service by the petitioner for the period from 01.04.2005 to 31.03.2006 at the rate of 110% above the estimated rate. An agreement came to be executed in terms of Ext.P1 specifically covering the period from 01.04.2005 to 31.03.2006. But again it is not disputed that the agreement also contained a Clause which provided for a continued service of Junghar by the petitioner beyond 31.03.2006, till a fresh agreement was executed. If this be so, then the petitioner would W.P.(C). No. 36276 OF 2008 4 be entitled to the rate mentioned in Ext.P1, for the period from 01.04.2005 to 31.03.2006 as specified in the agreement and thereafter for the period till another agreement was executed between the Government and the Contractor. 6. Learned Government Pleader submits that on an earlier occasion, petitioner has been awarded the contract for conducting the Junghar Service from 01.02.2003 to 31.03.2004. He had quoted at the rate of 69% above estimated rate. The work order was issued to him on 08.08.2003. It is contended by the learned Government Pleader that the petitioner had received payment at the rate of 140% above the estimated rate, for the period from 11.10.2000, the date of the first agreement till 07.08.2003. Though a work order at 69% above the estimated rate had been issued on 08.08.2003, the said work order dated 08.08.2003 covered the period from 01.02.2003 onwards till 31.03.2004. In other words, though the said work order dated 08.08.2003 provided for a rate of 69% above the estimated rate, for the period from 01.02.2003 to 31.03.2004, since the actual work order was issued only on 08.08.2003, petitioner had been paid at the rate of 140% above the estimated rate for the period from 01.02.2003, the commencement of the W.P.(C). No. 36276 OF 2008 5 agreement till 07.08.2003, the date prior to the date on which the agreement was executed. 7. This may be so, but the Contractor is entitled to get such amount as provided for in the agreement. Thus, if an agreement was executed on 11.10.2000, petitioner was entitled to be paid at the said rate during the period of the agreement. Since a work order was issued on 08.08.2003 for the period from 01.02.2003 onwards, petitioner would be entitled to be paid at the rate mentioned in the agreement dated 11.10.2000, till 31.01.2003. Thereafter, he would be entitled to payment only at the rate mentioned in the work order dated 08.08.2003, covering the period from 01.02.2003 to 31.03.2004. The agreement which was executed pursuant to Ext.P1 comprehends the period from 01.04.2005 to 31.03.2006. Thus, the petitioner would be entitled to payment at the rate mentioned in the agreement executed on 11.10.2000, for the period till 31.01.2003 as well. Thereafter, the petitioner would be entitled to payment at the rate mentioned in the agreement executed pursuant to Ext.P1, on 31.01.2008 for the period from 01.04.2005 till 31.01.2008. W.P.(C). No. 36276 OF 2008 6 8. Keeping in mind the above mentioned principle, the amounts that is due to the petitioner will be computed by the third respondent and the amounts shall be finalized by means of a written order passed, within three months from the date of receipt of a copy of this judgment. The petitioner may submit his claim in accordance with the principles mentioned here, within one month from the date of receipt of a copy of this judgment. Amounts due to the petitioner would be disbursed within the above mentioned time frame of three months. It is made clear that the petitioner will not be entitled to any interest. Writ petition is disposed of as above. (V.GIRI) JUDGE kkms/