IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 28814 of 2010(B) -------------------------- PETITIONER(S): --------------------- SHYAMLA SATHYAPALAN, AGE 58 YEARS, W/O. LATE K.N.SATHAYAPALAN, CHARUVILA PUTHEN VEEDU EZHUKONE, KOTTARAKKARA. BY ADV. SRI.C.S.MANILAL SRI.S.NIDHEESH RESPONDENT(S): ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, IRRIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-13. 2. THE CHIEF ENGINEER, IRRIGATION DEPT. PROJECT-II, PUBLIC BUILDING, OFFICE OF THE CHIEF ENGINEER, MUSIUM.P.O., THIRUVANANTHAPURAM-695001. 3. THE SUPERINTENDING ENGINEER, IRRIGATION DEPARTMENT, PROJECT CIRCLE, PIRAVOM PIN-686664. GOVT.PLEADER SRI.P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 28814 OF 2010 (B) ===================== Dated this the 17th day of September, 2010 J U D G M E N T Petitioner's husband late Sri.K.N.Sathyapalan was awarded the contract for execution of the work “I.I.P.Constructing Low level canal from ch:9000m to 9525m including pressure siphon flume and Aquaduct” in the Periyar Valley Irrigation Project. Agreement between the parties was executed on 16/6/2000 and the period for completion of the work specified was 18 months. During the currency of the contract, Sri.Sathyapalan expired on 7/7/2001. At that stage, petitioner being the widow of the deceased contractor volunteered to continue the work and accordingly supplementary agreement was executed. It is an admitted fact that the work has not been completed despite various extensions granted. Now by Ext.P34 proceedings of the 3rd respondent, the contract has been terminated. It is calling in question Ext.P34, the writ petition is filed. 2. Petitioner states that delay in the execution of the work has occurred due to non payment of part bills, the payment of which were sought for by the petitioner as per Exts.P6 and P7, WPC No. 28814/10 :2 : and it is also stated that supply of departmental materials were also delayed and petitioner refers to Exts.P5, P6 and P20 to P24 in support of this plea. Yet another plea of the petitioner is that in respect of one of the municipal roads thorough which the project was to cross, the respondents did not obtain permission for cutting of the said road. Yet another justification offered by the petitioner is that there is an 11 KV line passing through the alignment of the project and the respondent did not get the line shifted and she refers to Exts.P18, P19, P21 and P22 in support of this plea 3. However, a reading of the impugned order shows that, on its expiry, the period of agreement between the petitioner and the respondents was extended in 2004, twice in 2005, once in 2006, once in 2007 and again once in 2008 on the specific remarks of the Executive Engineer and at the request of the petitioner with an application and detailed programme chart towards performance of the work and fulfilment of the contract. Ext.P34 order also show that despite making available all departmental materials and sanctioning extension of time and disbursement of part payments, the petitioner dragged the work. WPC No. 28814/10 :3 : It also shows that as on date huge quantity of departmental materials are in the custody of the petitioner and the details thereof are given in the second page of Ext.P34 order. It is stated that, on the direction of this Court, notice was issued to the petitioner before issuing Ext.P34. Accordingly, the authorised representative appeared before the 3rd respondent and was heard in detail. The grounds assigned for cancellation of the contract are contained in Ext.P34, which reads as under; a) The authorized nominee of the contractor is having full liberty to get the work foreclosed without any risk and cost if the contractor expires during the course of execution of the work. But the petitioner opted to continue the work at her will and wish and gave necessary request in this regard. b) The work done has been measured and these measurements were taken, recorded and check measured by the competent authorities in the presence of the technical and authorized representatives of the petitioner and accepted by them and no protest has been made while receiving the last 6 part payments. c) All the designs of the structures were finalized and approved by the competent authorities and made available to the petitioner/contractor at the time of execution of the Agreement itself. d) No sanctions to cut open the road or any other related structures are pending except one Municipal Road. There are no PWD road crossings WPC No. 28814/10 :4 : along the portion of the work. At the starting portion a Panchayath road of Thuravoor Grama Panchayath crosses the siphon and sanction to cut open the road at this portion was received vide letter NO.A1-32/01 dt 01/02/2001 of the Grama Panchayath and at the end portion a Municipal road crosses. The petitioner could have executed the work in the remaining portions as a 10 m length road crossing of the canal in the exit portion will not affect the smooth execution of the work. e) Part payments for the work executed have been disbursed to the petitioner strictly in accordance with seniority basis and availability of funds. The petitioner has been paid 6 part bills altogether amounting to Rs.252,6024 lakhs and another part bill is pending for payment owing to non execution of supplemental agreement for extension of time of completion. f) The agreement has been executed with specific terms and condition agreeing the petitioner/contractor will not claim any enhanced rate for the work executed during extended period of completion and will complete the work within the extended period. The said condition has been accepted by the petitioner while executing the Principal Agreement and the subsequent supplemental agreements numbered 1 to 7. 4. It is also stated that, despite all the above, as a goodwill gesture to the widow of the deceased contractor, respondents requested the petitioner to submit an undertaking to the effect that they will resume the work on receipt of the pending payment and the permission of the Municipal Authorities WPC No. 28814/10 :5 : to cut open the road and to make the agreement live. Even this offer was not accepted by the petitioner. 5. In so far as the case of the petitioner about the shifting of the 11 KV line now urged in justification of the failure to execute the work is concerned, it is to be stated that, in response to Ext.P29 show cause notice, petitioner filed Ext.P30 reply which was supplemented by Ext.P32 representation. In neither of these representations has the petitioner assigned the failure of the respondents in shifting the 11 KV line as one of the reasons to justify the delay on her part to complete the work. 6. In so far as the delay in getting permission of the Municipal Authorities to cut open the road is concerned, in Ext.P34, it is stated that even after leaving the road portion vacant, it was open to the petitioner to complete the remaining portion of the work and that the petitioner did not even do that. Therefore, prima facie, it would appear that this again is only a justification offered for the sake of justification. 7. Counsel for the petitioner relied on Ext.P33 and contended that termination at the risk and cost of the contractor was impermissible. However, a reading of Ext.P33 shows that this WPC No. 28814/10 :6 : circular can have relevance only in a case where termination is not for the fault of the contractor, which is not the case here. Therefore, this contention also has no merit. 8. On the whole, it is evident that the issues raised involve several disputed questions of fact. Therefore, the findings in Ext.P34 order terminating the contract can be assailed only if the petitioner establishes her factual contentions by adducing evidence both oral and documentary. Such an exercise cannot be undertaken in a writ petition. Therefore, the remedy of the petitioner is not in a writ petition and lies elsewhere, and on that ground, without expressing anything on the merits, I dismiss the writ petition. ANTONY DOMINIC, JUDGE Rp