IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 26543 of 2008(I) -------------------------- PETITIONER(S): ----------------- MATHEW EAPEN, MAVELIL CHELLAKKADU PO., RANNY, PATHANAMTHITTA DT. BY ADV. SRI.SUNIL JACOB JOSE RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS (G) DEPARTMENT, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER, PWD (ROADS AND BRIDGES) THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, PWD ROADS DIVISION, PATHANAMTHITTA. GOVERNMENT PLEADER SRI.MUHAMMED MASHIM FOR R1-R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.26543/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER BEARING NO.A2-3926/05 DT 12/11/2005 OF THE 3RD RESPONDENT. EXT.P2: A PHOTOCOPY OF THE CERTIFIED FINAL BILL SUBMITTED BY THE PETITIONER. EXT.P3: A TRUE COPY OF THE REPRESENTATION DT 19.3.2008 BEFORE THE 1ST RESPONDENT. EXTS. OF R1 EXT.R1(a): TRUE COPY OF THE LETTER NO.9044/F1/08/PWD DT 20.5.2008. EXT.R1(b): TRUE COPY OF THE NOTE FROM THE FINANCE DEPARTMENT. EXT.R1(c): TRUE COPY OF THE CIRCULAR NO.29/05/FIN. DT 2.6.05. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 26543 OF 2008 (I) ===================== Dated this the 7th day of July, 2009 J U D G M E N T The prayer sought in this writ petition is to direct the respondents to disburse the amount claimed by the petitioner in Ext.P2 forthwith. 2. The facts of the case are that the petitioner is an 'A' Class PWD Contractor. It is stated that during 2005-06 Sabarimala Festival Season, pursuant to a meeting convened by the Chief Minister on 2/11/2005, the arrangements made were reviewed and the respondents wanted to fix reflectors on both the sides of the road to Sabarimala. Accordingly, the 3rd respondent issued Ext.P1 calling upon the petitioner to start the work immediately. In Ext.P1, it was also indicted that the work has to be completed before the season begins on 15/11/2005. Petitioner submits that pursuance to Ext.P1, he started and completed the work. 3. It is stated that thereafter he submitted Ext.P2 final bill claiming a total amount of Rs.5,98,850/-. Ext.P2 was duly certified by the Assistant Engineer and Assistant Executive Engineer. WPC 26543/08 :2 : Although the bill was submitted in December, 2005, payment was not made and his representations also did not yield any result. Finally, the petitioner submitted Ext.P3 to the 1st respondent on 19/3/2008. Even thereafter, there was no progress and that led the petitioner to file this writ petition. 4. Counter affidavit has been filed on behalf of the 1st respondent. In the counter affidavit, they are finding fault with respondents 2 and 3 in having dispensed with the tender system and arranging the work on a negotiated basis. It is stated that after the negotiations between the petitioner and the 3rd respondent, the petitioner expressed his willingness to execute the work at a rate to be approved by the competent authority under the Government. The rate approved by the 2nd respondent's tender committee was at 20% above estimate rate subject to ratification from the Government and rate approval. It is stated that therefore no agreement was entered into between the petitioner and the respondents. They have produced Ext.R1(a) and Ext.R1(b). Ext.R1(b) is a note issued on behalf of the Principal Secretary, Finance regretting their inability to agree to the proposal of dispensing with tender calls and Ext.R1(a) is a WPC 26543/08 :3 : communication of the Government, proposing to take steps for fixing the liability for departing from normal tender rules. According to the 1st respondent, since the Government have not agreed to any rate, they are not in a position to make payment to the petitioner at this stage. Finally, counter affidavit concludes by stating that “this respondent is hopeful to finally settle the petitioner's bill within a period of six months as the matter is to be placed before the Cabinet and the approval from the Cabinet is to be obtained as there is violation of existing procedures in the case of confirming contract in this case”. 5. Irrespective of the technical violations that are alleged, fact remains that in pursuance to Ext.P1, on the instructions of the respondents, the petitioner has completed the work. This is also duly certified by the Assistant Engineer and the Assistant Executive Engineer. Therefore, for the work he has done, petitioner deserves to be paid, although the rate thereof is to be fixed by the respondents. 6. Taking into account the above and also the averments made in the counter affidavit that the matter will be duly placed in the Cabinet, this writ petition is disposed of directing that the WPC 26543/08 :4 : 1st respondent shall place the issue relating to the settlement of the petitioner's claim before the Cabinet as undertaken in the counter affidavit dated 4th of April, 2009, obtain a decision and settle the claim of the petitioner. Petitioner may produce a copy of this judgment before the 1st respondent, who shall take necessary action in this regard. ANTONY DOMINIC, JUDGE Rp