IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 37409 of 2003(C) -------------------------- PETITIONER(S): --------------- MATHEW M. NETTADY, 47 YEARS, PWD CONTRACTOR, S/O MATHEW, PARICKAPPILLY HOUSE, KALAMBOOR KARA, PIRAVOM VILLAGE, MOOVATUPUZHA TALUK. BY ADV. SRI.V.K.ISSAC SRI.ISAC SANJAY RESPONDENT(S): --------------- 1. STATE OF KERAELA, REP. BY SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, KERALA PWD (ROAD AND BRIDGES), THIRUVANANTHAPURAM. 3. THE SUPERINTENDING ENGINEER, KERALA PWD, (ROAD AND BRIDGES), CENTRAL CIRCLE, ALUVA, PIN - 683 101. 4. THE EXECUTIVE ENGINEER, KERALA PWD (ROAD DIVISION) ERNAKULAM, KAKKANAD.P.O, PIN - 682 030. GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6.4.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 37409/03 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE AGREEMENT DTD.16.6.2000. P1A. COPY OF THE PWD NOTICE INVITING TENDER. P2. COPY OF THE APPLICATION DTD.20.6.2000. P3. COPY OF THE SANCTION ORDER DTD.25.11.2000 OF R3. P4. COPY OF THE LETTER TO R3 DTD.28.6.02. P5. COPY OF THE LETTER DTD.11.2.2003 TO R2. P6. COPY OF THE MEMORANDUM OF O.P.NO.12839/2003. P7. COPY OF THE JUDGMENT IN O.P.NO.12839/2003. P8. COPY OF THE LETTER DTD.20.6.03. P9. COPY OF THE LETTER DTD.6.9.03 FROM R2. P10. COPY OF THE NOTICE DTD.16.9.03 TO R2. P10A. COPY OF THE POSTAL ACKNOWLEDGEMENT. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 37409 of 2003 ================== Dated this the 6th day of April, 2010 J U D G M E N T The petitioner is a PWD contractor, who executed certain works on behalf of the respondents. While executing the work, according to the petitioner, he was compelled to do some work, which was not included in the original tender schedule. He would submit that but for the additional work, it would have been impossible to execute the work itself, because of the peculiar site conditions. After execution of the work, he claimed extra payment for the additional work executed by him. Although the engineer concerned recommended payment for the additional work, the Council of Chief Engineers, which met on 5.9.2003, rejected the same on the ground that the petitioner contracted for the work fully knowing about all the conditions of the site and the additional work was not part of the tender schedule. The petitioner filed Ext.P5 representation against the same. He moved this Court by filing O.P.No.12839/2003, in which, by Ext.P7 judgment, this Court directed the Chief Engineer, Kerala PWD (Roads & Bridges), Thiruvananthapuram, to consider and pass orders on Ext.P5. Pursuant thereto, Ext.P9 order has been passed, which reads thus: “The tender for the above work was invited not as an item wise tender but on the percentage rate tender. In the Notice Inviting Tenders vide clause no. 10 & 11 it is clearly mentioned that before quoting the rate for a work the contractor should inspect the site and satisfy himself w.p.c.37409/03 2 regarding the adequacy of the provisions in the tender schedule. In this case forming island/floating platforms is not included in the tender schedule. While quoting the tender you have not pointed out any requirements. Therefore, it has to be presumed that you will provide whatever is needed for the piling. So your request is rejected.” 2. The petitioner's contention is that Ext.P9 is perverse insofar as it does not consider the various aspects of the matter as detailed in Ext.P5 representation, which was directed to be disposed of as per Ext.P7 judgment. He, therefore, submits that Ext.P9 is liable to be quashed. 3. I have heard the learned Government Pleader also. 4. Admittedly Ext.P5 is neither a statutory appeal nor a statutory revision. It is just a representation, wherein the petitioner has claimed payment for certain additional work claimed to have been done by him in the process of executing the contract. I am of opinion that Ext.P9 clearly gives the reason as to why the petitioner's request cannot be considered, although each and every aspect of Ext.P5 has not been specifically answered therein. I do not think that for that reason, I can interfere with the same in these proceedings. I am of opinion that in view of the disputed questions of fact involved, the remedy of the petitioner lies in filing a suit before the civil court having jurisdiction. In the above circumstances, this writ petition is disposed of relegating the petitioner to the remedy by way of a suit before the competent civil court. However, I make it clear that in the event of the w.p.c.37409/03 3 petitioner pursuing his remedy before the civil court, the time taken for prosecuting this writ petition shall stand excluded while computing the period of limitation. I also make it clear that I have not considered the validity of the contentions of the parties, on merits and the same are left open to be agitated in the civil suit. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge