IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 9113 of 2008(I) --------------------------------- PETITIONER: ------------------- R.RAJEEV KUMAR, ELAMPLAVIL HOUSE, PARACODU P.O., ADOOR. BY ADV. MR.ARUN.B.VARGHESE RESPONDENTS: ----------------------- 1. THE SUPERINTENDING ENGINEER, MINOR IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, PATHANAMTHITTA. 3. THE ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION SUB DIVISION, ADOOR. BY GOVERNMENT PLEADER MR DILIP MOHAN FOR R1-R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9113 of 2008(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE SELECTION NOTICE ISSUED TO CONTRACTOR EXT.P2 - TRUE COPY OF THE TENDER SCHEDULE EXT.P3 - TRUE COPY OF AGREEMENT DATED 7/7/2005 ENTERED BETWEEN THE PETITIONER & 2ND RESPONDENT. EXT.P4 - TRUE COPY OF SUPPLEMENTAL AGREEMENT NO.1 EXT.P5 - TRUE COPY OF SUPPLEMENTAL AGREEMENT DATED 15/10/2005,. EXT.P6 - TRUE COPY OF THE RECAST ESTIMATE. EXT.P7 - TRUE COPY OF ORDER DATED 20/12/2005 ISSUED BY THE 2ND RESPONDENT. EXT.P8 - TRUE COPY OF REPRESENTATION DATED 4/3/2008 SUBMITTED BEFORE THE 1ST RESPONDENT. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 9113 of 2008 ................................................. Dated this the 10th day of July, 2009 J U D G M E N T On 25.4.2005, the 2nd respondent invited tenders for the construction of a tractor bridge across Vazhavila Padi Elathodu at Choorakodu in Enathu Panchayat. Petitioner's tender was accepted at 25% above the estimate rate. In Ext.P2 tender schedule, with respect to description of the work at serial No.13, the rate was wrongly typed as Rs.543/- instead of Rs.2264/-. That mistake was carried over to Ext.P3 agreement schedule also. According to the petitioner, that was purely a typographical error which happened in the office of the 2nd respondent. Actually, Rs.543/- related to the work at serial No. 14, which was wrongly typed under serial No. 13. This mistake was pointed out to the 2nd respondent, who being convinced, agreed to correct the same. Accordingly, Ext.P5 supplementary agreement was entered into between the petitioner and the 2nd respondent. Ext.P6 revised estimate was also prepared and it was signed by the 3rd respondent, in which the description of work under serial W.P(C) No. 9113 of 2008 -2- No. 13 was corrected as Rs. 2264/-. The total amount as per Ext.P6 is Rs.5 lakhs. The 2nd respondent accorded sanction for revised estimate as per Ext.P7. The sanction amount was also Rs.5 lakhs. After completion of the work, the petitioner submitted final bill for payment. By that time, the person manning the office of the 2nd respondent changed. When the petitioner approached the present Executive Engineer, he took the stand that amounts cannot be sanctioned at the rate of Rs.2264/- and amount was disbursed only at the rate of Rs.543/-. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(1) To issue a writ of mandamus or any other writ or order directing the 2nd respondent to pay an amount @ Rs.2264/- with 25% tender excess for the work done under serial No. 13 after adjusting the amount already disbursed @ Rs.543/- to the petitioner. (2) To declare that the petitioner is entitled for an amount @ Rs.2264/- and not @ Rs.543/- (3) To issue a writ of mandamus or any other writ or order directing the 1st respondent to consider and pass orders on Ext.P8.” 2. A counter affidavit has been filed, in which the 2nd respondent has not chosen to controvert the specific averments in the writ petition that there was a mistake in the tender schedule as well as the 1st agreement. The specific averment W.P(C) No. 9113 of 2008 -3- that the work could not have been done at Rs.543/- without incurring heavy loss is also not seen controverted. The stand taken is that, since the petitioner has executed the agreement for completing the work at the rate of Rs. 543/- per 10 sq.mts. the petitioner cannot be heard to contend that he is entitled to a revised rate. 3. I have considered the rival contentions in detail. 4. To say the least, the attitude of the 2nd respondent is Shylockian. Ext.P5 supplementary agreement has been entered into between the petitioner and the 2nd respondent, admittedly. Like the 1st agreement, the 2nd agreement was also executed between the same parties. The 2nd agreement is also binding on the parties. The fact that the initial rate was a mistake is quite evident from the fact that the sanctioned amount is also Rs.5 lakhs. That being so, I am of opinion that the respondents cannot take advantage of a mistake committed by the 2nd respondent, simply because that mistake was carried over to the 1st agreement, which the petitioner signed. It is not disputed that the petitioner had detected that mistake in the initial stage itself and the 2nd respondent had agreed to correct the same by W.P(C) No. 9113 of 2008 -4- executing a supplementary agreement is also not disputed. 5. In the above circumstances, I am satisfied that in respect of item No. 13 of the tender, the petitioner is entitled to calculate his dues on the basis that as per the tender schedule the rate for the work is Rs.2264/-. The petitioner would be entitled to payment for the work done as per his quotation on the basis of that rate. Amounts calculated accordingly shall be disbursed to the petitioner after deducting the amounts already paid, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE rhs