IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 WP(C).No. 23605 of 2009(U) --------------------------------------- PETITIONER: ------------------- PRAVEEN KUMAR.P, THARAYIL, THURAVOOR.P.O, CHERTHALA,ALAPPUZHA. BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. RESPONDENTS: ------------------------ 1. THE EXECUTIVE ENGINEER,P.W.D.NATIONAL HIGHWAY,NH(B)DIVISION,KODUNGALLUR. 2. THE SUPERINTENDING ENGINEER,P.W.D. NATIONAL HIGHWAY,CENTRAL CIRCLE,VYTTILA,KOCHI. 3. THE CHIEF ENGINEER,ADMINSTRATION & NATIONAL HIGHWAY,PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPUAM. 4. THE PROJECT DIRECTOR,NATIONAL HIGHWAY AUTHORITY OF INDIA,NO.8/1187,ARUMUGHAM COLONY, CHANDRANAGAR,PALAKKAD-7. R1 TO R3 BY GOVERNMENT PLEADER SMT. K.R. DEEPA, R4 BY ADV. MR.THOMAS ANTONY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23605/2009-U: APPENDIX PETITIONERS' EXHIBITS: EXT..1: COPY OF THE CONTRACT CERTIFICATE PERTAINING TO THE WORK AGREEMENT NO.05/AEE/NHA/2005-06 DTD. 26/11/2005. EXT.P.2: COPY OF THE LETTER ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE R.1. EXT.P.3: COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS DTD. 15/07/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.23605 OF 2009 (U) -------------------------------------------------- Dated this the 20th day of January, 2010 J U D G M E N T Petitioner is a civil contractor, who undertakes contract works for the Public Works Department of the State of Kerala. 2. The first respondent herein awarded the contract work for NH-47, known as NHAI-Flood damages urgent berm protection and side cleaning work from km.305/00 to 316/00. The contract was awarded for an amount of Rs.3,06,865/-. Petitioner states that pursuant to the award he executed an agreement dated 26.11.2005 with the first respondent. Thereafter, he commenced the work on 5.12.2005 and completed the same on 30.1.2006. 3. Ext.P1 is the contract certificate pertaining to the work which shows that measurements were taken on 8.12.2005, 12.12.2005, 9.1.2006, 12.1.2006, 16.1.2006 and 24.1.2006. Subsequently, the Assistant Executive Engineer submitted final bill recommending payment of the amount claimed by the petitioner, by Ext.P2. Payment was not made in pursuance to Ext.P2 and thereafter complaining of delay in the payment, petitioner WPC.No. 23605/09 :2 : submitted Ext.P3 representation. Even thereafter payment was not made and that lead the petitioner to file this writ petition praying for a direction to the respondents to disburse the amount of Rs.3,06,864/- due to the petitioner. 4. In the statement filed on behalf of the 4th respondent, it has been stated that the first respondent had submitted an estimate for the work of maintenance/urgent repairs to NH-NHAI between Kms.229 to 349 for the year 2005-06 and that the estimate was quantified and Rs.49 lakhs was sanctioned for the specified ordinary repairs. It is also stated that the aforesaid sanctioned amount was released to the first respondent when utilisation certificates were submitted. The affidavit concludes by saying that as of now the entire amount sanctioned is already released by NHAI to the first respondent, it is for the first respondent to make payments to the contractors engaged by him. 5. Three counter affidavits have been filed by the first respondent. The first counter affidavit is dated 13.11.2009. In this affidavit it is stated that, though NH-47 is vested with the National Highway Authority of India, as the National Highway Authority of WPC.No. 23605/09 :3 : India has no operational mechanism to carry out the repair works, the same is entrusted with the said National Highway Wing of the PWD as deposit work. It is stated that on this basis the work is tendered through the first respondent. It is specifically stated that “ it is not in dispute that the petitioner had undertaken the work and had completed the same to the satisfaction of this respondent”(first respondent). According to the first respondent for the year 2005-06 the total work undertaken by the first respondent for maintenance of NH-47 amounts to Rs. 92.33 lakhs and that out of the said amount, calculated at the rate of Rs.50,000/- per Km., an amount of Rs.49 lakhs were disbursed by the NHAI to the first respondent, which was paid to the contractors according to the priority list maintained by the first respondent. According to the first respondent, in the priority list only 18 persons have been paid and the petitioner is at Sl.No.32. Proceeding further, it is stated that the first respondent is taking earnest efforts to pay the amount to the contractors as and when payment is received from NHAI. Further a promise is made that the first respondent will pursue the matter with the NHAI, so that the outstanding the dues can be settled. WPC.No. 23605/09 :4 : 6. The second counter affidavit filed is dated 22.12.2009, where it is stated that out of Rs.92.33 lakhs, Rs.49 lakhs has been disbursed to the Contractors, according to strict seniority as per the seniority list maintained by the first respondent. The third counter affidavit filed is dated 18.1.2010, where list of 18 contractors who have already been paid has been given. A separate list of the remaining contractors who are to be paid is also given and it is stated that the petitioner is at Sl. No.32. 7. Admittedly, work has been awarded by the first respondent. It is on that basis, contract has been entered into with the petitioner. The liability of the first respondent to pay the bill amount due to the petitioner also is not disputed. The fact that the petitioner has satisfactorily completed he work is also admitted in the counter affidavit. Therefore, it is for the first respondent to make payment to the contractors. In so far as the plea that payments will be made as and when amounts are received from NHAI is concerned, that plea has no force for the reason that NHAI in its statement has clearly stated that their liability is only Rs.49 lakhs and that the said amount has already been paid. The fact that WPC.No. 23605/09 :5 : Rs.49 lakhs has been paid and received is also not disputed by the first respondent. Evidently, the liability for payment to the petitioner will fall entirely on the first respondent and it is for the first respondent to ensure that payment is made. This the first respondent shall do as expeditiously as possible and at any rate within 3 months from the date of receipt of a copy of the judgment. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/