IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 WP(C).No. 6431 of 2007(N) -------------------------------------- PETITIONER(S): ------------------------ T.M. HUSSAIN KHAN, BABU NIVAS, ASRAMAM, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. CHIEF ENGINEER, BUILDING AND LOCAL WORKS, OFFICE OF THE CHIEF ENGINEER, PWD BUILDINGS,THIRUVANANTHAPURAM. 4. SUPERINTENDING ENGINEER, BUILDING AND LOCAL WORKS, SOUTH CIRCLE, OFFICE OF THE SUPERINTENDING ENGINEER, THIRUVANANTHAPURAM. 5. EXECUTIVE ENGINEER, PWD BUILDINGS DIVISION, KOLLAM. R1 TO R5 BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.6431/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 5/10/2005. P2 COPY OF THE ORDER NO.BSC-6114/97/D1 ISSUED BY THE FOURTH RESPONDENT,DATED 17/2/2006. P3 COPY OF THE O.S.NO.327/2006 OF THE SUB COURT, THIRUVANANTHAPURAM DATED 6/7/2006. P4 COPY OF THE ORDER NO.BSC-6114/97/D1 ISSUED BY THE FOURTH RESPONDENT, DATED 31/1/2007. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S.SIRI JAGAN, J. ================== W.P.(C).No. 6431 of 2007 ================== Dated this the 21st day of July, 2011 J U D G M E N T The petitioner is a contractor. He was awarded a civil work by the respondents. According to the petitioner, for reasons not attributable to the petitioner, the petitioner could not complete the work. Alleging that the petitioner committed breach of contract, by Ext.P2, the respondents terminated the contract with the petitioner at his risk and costs. Challenging the same, the petitioner filed O.S.No.327/2006 before the Sub Court, Thiruvananthapuram as per Ext.P3 plaint. While so, the petitioner was served with Ext.P4 order, by which, the petitioner was directed to pay an amount of ` 40,27,696/- by way of damages for the alleged breach of contract. The petitioner is challenging Ext.P4 seeking the following relief: “issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibit P4 Order No.BSC- 6114/97/D1 dated 31.1.2007 of the fourth respondent and quashing the same.” 2. The 4th respondent has filed a counter affidavit supporting the demand. 3. I have considered the rival contentions in detail. 4. The question as to whether, being a party to a contract, the State can unilaterally decide the question as to whether the other w.p.c.6431/07 2 party has committed breach of contract and demand damages for such breach of contract is no more res integra. That question has been decided by the Supreme Court and other courts in several decisions. Some of them are State of Karnataka v. Shree Rameshwara Rice Mills [1987 (2) SCC 160], Build Tech India v. State of Kerala [2000 (2) KLJ 142] and BHARAT SANCHAR NIGAM LIMITED AND ANOTHER v. MOTOROLA INDIA PRIVATE LIMITED [(2009) 2 SCC 337]. In Rameshwara Rice Mills' case (supra) the Supreme Court has held that where a party to a contract disputes the allegation of breach of contract, adjudication should be by an independent person or body and not by the other party to the contract, even if the other party is the State. But the Supreme Court has held that in cases where there is no dispute and there is consensus between the contracting parties regarding breach of the conditions, the officer of the State is well within his rights in assessing damages caused by breach in view of the terms of the contract. But the Supreme Court has categorically held that the power of the State under an agreement entered into with a private person providing for assessment of damages for breach of conditions and recovery of damages will stand confined only to those cases where the breach of conditions is admitted or it is not disputed. In this case, the petitioner disputes the allegation of the State that the petitioner is guilty of breach of contract. In fact, he has even filed w.p.c.6431/07 3 O.S.No.327/2006 before the Sub Court, Thiruvananthapuram. It is submitted before me that the said suit has been decreed in favour of petitioner, against which, the State has filed an appeal. In the above circumstances, Ext.P4 demand is quashed. But, this will not stand in the way of the State pursuing the appeal filed against the decree filed by the petitioner and taking appropriate steps thereto or the State filing a suit or other proceedings to determine the question of breach of contract and damages. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge