IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 WP(C).No. 26176 of 2011(V) -------------------------- PETITIONER(S): --------------- M.P.BALAN, S/O.KANARAN, AGED 62 YEARS, "ARCHANA", THIRUTHIYAD, P.O.PUTHIYARA, KOZHIKODE-4. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S): --------------- 1. SUPERINTENDING ENGINEER, PWD, ROADS AND BRIDGES (NORTH CIRCLE), KOZHIKODE. 2. EXECUTIVE ENGINEER PWD, ROAD DIVISION, PALAKKAD. 3. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. SR GOVERNMENT PLEADER SMT.M.J.RAJASREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.26176/11 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1- TRUE COPY OF RELEVANT PORTIONS OF AGREEMENT DATED 13-7-2005 EXECUTED WITH IST RESPONDENT. EXHIBIT P2- TRUE COPY OF THE NOTICE DATED 23-5-2006 ISSUED BY REVENUE DEPARTMENT UNDER SECTION 12 OF KLC ACT 1957. EXHIBIT P2(A)- TRUE COPY OF REPLY DATED 30.5.2006 SENT BY PETITIONER TO EXHIBIT-P2. EXHIBIT P3- TRUE COPY OF LETTER DATED 2-8-2006 OF PETITIONER TO IST RESPONDENT. EXHIBIT P4- TRUE COPY OF LETTER DATED 29.9.2006 OF 2ND RESPONDENT MOOTING REVISED ESTIMATE. EXHIBIT P5- TRUE COPY OF LETTER DATED 12-10-2006 OF PETITIONER TO IST RESPONDENT. EXHIBIT P6- TRUE COPY OF LETTER DATED 5-9-2007 OF PETITIONER TO IST RESPONDENT. EXHIBIT P7- TRUE COPY OF LEGAL NOTICE DATED 21-5-2011 ADDRESSED TO IST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 26176 OF 2011 ===================== Dated this the 15th day of December, 2011 J U D G M E N T Petitioner is a contractor. The work concerning the formation of Bypass Road in Pattambi Town was awarded to the petitioner pursuant to the tender dated 27/5/2005. Accordingly, Ext.P1 agreement was entered into between the parties on 13/7/2005 with twelve months time for completion on agreed P.A.C of `67,49,410. Petitioner says that in pursuance to the agreement, the site was handed over to him on 25/7/2005. Accordingly, he collected the materials and commenced the work. However, since the site was immersed in river, the work could not be started immediately. 2. Subsequently he started the work and collected necessary materials for the same. While so, Ext.P2 notice under the provisions of Section 12 of the Kerala Land Conservancy Act was issued by the Tahsildar stating that the site in question is a revenue puramboke and proposing action under the Land Conservancy Act. As a result, petitioner had to stop the work and he made Ext.P3 request to the 1st respondent for extension of WPC No.26176/11 :2 : time. 3. While so, on account of the above as also taking note of the site conditions, proposal for revision of the estimate was mooted and Ext.P4 shows that the proposal was to revise the estimate to `1,31,00,000/- . This proposal was made to the Chief Engineer. But however the same has not been approved so far. Meantime, petitioner also made Exts.P5, P6 and P7 representations expressing his willingness to complete the work, if the proceedings initiated by the Tahsildar are revoked and also if extension of time is granted, with the benefit of the revised estimate. No response was forthcoming. In such circumstances, he finally made a request that he be released from the contractual obligations and paid for the materials mobilised by him and also for the work done. Even to that representation, there was no response and that led him to file this writ petition. 4. On behalf of the 2nd respondent, the Executive Engineer, a statement has been filed. In the statement though the 2nd respondent has expressed his willingness to refund the security deposit, no mention has been made about the value claimed by the petitioner for the materials mobilised and for the WPC No.26176/11 :3 : work executed. However, leaned Government Pleader expressed difficulty in measuring the unfinished works done by the petitioner. It is also submitted that reply was given to Ext.P7, a lawyer notice issued on behalf of the petitioner . 5. From the statement filed by the respondents, it is evident that Ext.P2 proceedings were initiated under the Kerala land Conservancy Act on the basis that the land in question is a puramboke. It is also stated that though the Grama Panchayat had granted permission to construct the Bypass along the river bank, inspite of requests made by the Assistant Executive Engineer vide his letter dated 30/5/2006, revenue authorities have not so far released the site for completion of the project. Further, it is also agreed that on account of the site conditions, the estimate for the work in question had to be revised. 6. In short, the statement filed does not indicate that it was on account of the fault of the petitioner that the work in question could not be completed. If that be the factual position, I see absolutely no reason why the petitioner shall not be paid for the work executed by him and for the materials mobilised by him. The amount payable towards the materials mobilised and the WPC No.26176/11 :4 : work executed shall be quantified by the respondents and the amounts due to the petitioner shall be paid. This shall be done as expeditiously as possible, at any rate within six months from the date of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp