IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 22099 of 2009(F) -------------------------- PETITIONER(S): --------------- K.T.MATHEW, KALLUMPURATH, RANNI P.O., PATHANAMTHITTA. BY ADV. SRI.S.SANTHOSH KUMAR SMT.BABY JOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, SOUTH CIRCLE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.P.N.SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ---------------------------------------- W.P.(C).No.22099 of 2009 ---------------------------------------- Dated this the 11th day of August, 2009. JUDGMENT The petitioner, a contractor of the Public Works Department was awarded two works in the Changanacherry bye-pass road as per Exts.P1 and P1(a). The time for completion of the work was 12 months from the date of handing over of the site. 2. According to the petitioner, he had completed a major portion of the work, but was not able to complete the work fully on account of absence of a permission from the Changanacherry Municipality to construct the bye-pass cutting the Municipality roads. The Superintending Engineer, the 2nd respondent, terminated the work at the risk and cost of the petitioner, by order dated 26.6.2002. This was challenged by the petitioner before this court in O.P.No.19289/02, which was dismissed. In W.P.(C).No.22099 of 2009 :: 2 :: W.A.No.2907/02, the panchayat permitted the petitioner to undertake and complete the work subject to certain conditions. It seems that the work was resumed. But, it is admitted that the work was not completed by the petitioner. The petitioner has his own reasons for the non-completion of the work. It is not necessary to refer to those reasons in detail. 3. Thereafter, the Superintending Engineer again terminated both the works at the risk and cost of the petitioner. The works were re-tendered and completed by a subsequent contractor. 4. The petitioner challenged Exts.P4 and P4(a) before this court in W.P.(C)No.No.27630/03. The said writ petition was dismissed as per Ext.P5 judgment dated 23.10.2003 finding that the issue involves disputed questions of fact and making it clear that the issue will have to be decided with the aid of evidence that may be tendered before such forum. 5. Thereafter by Exts.P6 and P6(2) orders, the 2nd respondent herein alleged that loss has been W.P.(C).No.22099 of 2009 :: 3 :: sustained by the State Government and demanded an amount of Rs.14,23,972/- and an amount of Rs.17,67,372/- for the work relating to the first reach and the second reach respectively. The petitioner challenged Exts.P6 and P6(a) orders before the Lok Ayuktha which declined jurisdiction as per Ext.P7 judgment dated 10.5.2007. Thereafter, the petitioner moved the Government by Ext.P8 dated 14.5.2009 styling the same as an appeal as it were from Exts.P6 and P6(a). This writ petition has been filed seeking appropriate directions to the 1st respondent to consider and pass orders on Ext.P8 and also for a direction restraining the 2nd respondent from enforcing Exts.P6 and P6(a) orders. 6. I heard Mr.Santhosh Kumar, learned counsel for the petitioner and learned Government Pleader Mr.P.N.Santhosh. 7. Learned Government Pleader points out that this court even earlier as per Ext.P5 declined to consder the correctness of the termination orders issued by the Superintending Engineer terminating the work awarded W.P.(C).No.22099 of 2009 :: 4 :: to the petitioner. This was inter alia for the reason that disputed questions of facts were involved, in the adjudication of the issue and this will have to be done in other appropriate forum where adduction of evidence would be possible. 8. What is challenged now is Exts.P6 and P6(a) which are consequent to the termination of the work. The determination of the liability, which is now cast on the petitioner is allegedly on the basis of the risk and cost clause contained in the agreements originally executed by the petitioner. Obviously, the amounts sought to be recovered are by way of liquidated damages. 9. The principle that was taken note of by this court while disposing of the earlier writ petition filed by the petitioner vide Ext.P5 judgment would be applicable in the present instance also. 10. Learned counsel for the petitioner points out that the only direction the petitioner now seeks is one to the State Government to consider and pass orders W.P.(C).No.22099 of 2009 :: 5 :: and Ext.P8 which is practically in the nature of an appeal against Exts.P6 and P6(a). 11. Learned Government Pleader points out that the petitioner had earlier approached the Lok Ayuktha which declined jurisdiction and he is now approaching this court more than three years after the contracts were terminated as per Exts.P6 and P6(a). 12. Ext.P8 cannot be considered as an appeal against the order of determination of liability by the Superintending Engineer. In fact, the agreements do not contemplate any such appellate power as it were, nor is there any statutory provision supporting Ext.P8. More importantly, a claim made by the petitioner challenging the legality of the termination of the contract, could be adjudicated only by a Civil Court or by an Arbitrator, if there is an arbitration agreement as such. If that be so, no purpose would be served in directing the Government to take a decision on Ext.P8 as it were. 13. I agree with the submission of the learned Government Pleader that there has been unexplained W.P.(C).No.22099 of 2009 :: 6 :: delay on the part of the petitioner in even approaching this court, in spite of the fact, even the Lok Ayuktha had declined jurisdiction vide Ext.P6 more than two years ago. At any rate, the remedy of the petitioner lies before the Civil Court and it is up to him to approach the Civil Court and seek appropriate remedies, in relation to Exts.P6 and P6(a) or the validity of the termination of the contract as it were. In these circumstances, the writ petition is dismissed without prejudice to the right of the petitioner to seek appropriate remedies as mentioned herein above. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge