IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 WP(C).No. 32484 of 2010(I) -------------------------- PETITIONER(S): -------------------- M.M.VARGHESE, AGED 62, S/O.MATHAI, MUTTUVANCHERY HOUSE, THAMARACHALPURAM, KIZHAKKAMBALAM P.O. - 683562. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): ------------------------ 1. KERALA WATER AUTHORITY, REP.BY MANAGING DIRECTOR, JALABHAVAN, THIRUVANANTHAPURAM 695033. 2. SUPERINTENDING ENGINEER, P.H.CIRCLE, KERALA WATER AUTHORITY, KOZHIKODE-9. 3. EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, KERALA WATER AUTHORITY, VATAKARA, KOZHIKODE-673001. ADV. SRI.M.DINESH, SC, KWA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.32484/10 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF PROCEEDINGS OF THE 1ST RESPONDENT BEARING NO.KWA/H.O/WN-1/KKD/TD-4/55/7 DATED 24.7.07. EXT.P2: TRUE COPY OF SCHEDULE OF PAYMENT ISSUED BY THE 2ND RESPONDENT TO PETITIONER DATED NIL. EXT.P3: TRUE COPY OF WORK ORDER NO.D1-2966/2004 DATED 31.7.07 ISSUED BY THE 2ND RESPONDENT TO PETITIONER. EXT.P4: TRUE COPY OF LETTER SUBMITTED BY PETITIONER BEFORE 2ND RESPONDENT ON 31.7.07. EXT.P5: TRUE COPY OF PERFORMANCE AND EXPERIENCE CERTIFICATE BEARING NO.A4-83/08 DATED 8.7.08 ISSUED BY 3RD RESPONDENT TO THE PETITIONER. EXT.P6: TRUE COPY OF LETTER NO.A4-83/2008 DATED 1.12.08 ISSUED BY 3RD RESPONDENT TO THE PETITIONER. EXT.P7: TRUE COPY OF REPRESENTATION SUBMITTED BY PETITIONER BEFORE 2ND RESPONDENT ON 14.12.08. EXT.P8: TRUE COPY OF LETTER NO.A4-83/08 DATED 13.10.09 ISSUED BY 3RD RESPONDENT TO PETITIONER. EXT.P9: TRUE COPY OF REPLY SUBMITTED BY PETITIONER TO EXT.P8 TO THE 3RD RESPONDENT DATED 19.10.09. EXT.P10: TRUE COPY OF ORDER NO.D1-2966/2004 DATED 19.5.2010 ISUED BY 2ND RESPONDENT TO THE PETITIONER. EXT.P11: TRUE COPY OF COVERING LETTER BEARING NO.D1-2966/04 DATED 15.6.2010 ISSUED BY 2ND RESPONDENT TO THE PETITIONER ALONG WITH EXT.P10. EXTS. OF R1 EXT.R1(a): TRUE COPY OF THE FORM P2 FILED BY THE PETITIONER. EXT.R1(b): TRUE COPY OF THE RELEVANT PAE OF NIT WHICH SHOWS THE CLAUSE 8.16.6. EXT.R1(c): TRUE COPY OF THE RELEVANT PAGE OF THE NIT WHICH SHOWS THE CLASUE 8.4.3. EXT.R1(d): TRUE COPY OF THE FIRST PAGE OF THE CONTRACT. EXT.R1(e): TRUE COPY OF THE RELEVANT PAGE OF THE NIT WHICH SHOWS THE CLAUSE 8.16.6. //TRUE COPY// P.A. TO JUDGE Rp5 ANTONY DOMINIC, J. ================ W.P.(C) NO. 32484 OF 2010 ===================== Dated this the 4th day of November, 2011 J U D G M E N T Petitioner is a registered contractor. The 2nd respondent invited tenders for the work of “Technology Mission – RWSS to Azhiyoor Village in Vatakara Taluk – Supply and laying 250mm C.I Class LA pumping main from Vellikulangara to Kallimala” and the petitioner was the successful contractor. In this writ petition, petitioner claims that an amount of `35,45,649/- is ordered to be forfeited and that the same is liable to be disbursed to him. 2. However the stand of the respondents is that the contract is a schedule contract and that the payments are to be made only at the schedule rate. 3. Therefore, what essentially arises in the writ petition is whether the contract in question is a lump sum contract as claimed by the petitioner or a schedule contract as claimed by the respondents. This is a disputed question of fact, the adjudication of which needs appreciation of evidence. Such an adjudication is not possible in a proceedings under Article 226 of the Constitution of India. WPC No. 32484/10 :2 : Therefore, leaving it open to the petitioner to get his claim adjudicated in appropriate proceedings, the writ petition is closed. ANTONY DOMINIC, JUDGE Rp