IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 WP(C).No. 29703 of 2003(J) -------------------------- PETITIONER: ------------------- SIBY K.P., S/O.PAPPU, KANNAPPILLY HOUSE, PIRAROOR P.O., KALADY. BY ADV. SRI.WILSON URMESE RESPONDENTS: ---------------------- 1. THE DISTRIT COLLECTOR, THRISSUR. 2. THE SUPERINTENDING ENGINEER, HARBOUR ENGINEERING SOUTH CIRCLE, THIRUVANANTHAPURAM 9. 3. EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION, MUNAMBAM. BY GOVERNMENT PLEADER SMT.RANIDIOTHEMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29703 of 2003(J) ------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE WORK ORDER NO.D1-1976/2000/SE DATED 30.11.2000 OF THE 2ND RESPONDENT. EXT.P2. COPY OF THE ORDER DATED 20.3.2002 OF THE 1ST RESPONDENT. EXT.P3. COPY OF THE LETTER DATED 5.11.2002 of the 3RD RESPONDENT EXT.P4. COPY OF THE LETTER DATED 16.12.2002 OF THE 3RD RESPONDENT. EXT.P5. COPY OF THE ORDER DATED 22.1.2003 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBIT ------------------------------------ EXT.R1(A). COPY OF THE GOVT. LETTER NO.12068/CMPU-1/99/PLG. DATED 3.9.99. / TRUE COPY / P.A. TO JUDGE VK ANTONY DOMINIC, J. ================ W.P.(C) NO. 29703 OF 2003 ===================== Dated this the 25th day of February, 2011 J U D G M E N T The work of construction of Fish Landing Center at Blangad in Trichur District executed under the MPLADS Scheme, 1999- 2000 was awarded to the petitioner as per Ext.P1 proceedings dated 30/11/2000 of the Superintending Engineer, Harbour Engineering South Circle, Thiruvananthapuram. This shows that the work was awarded to the petitioner at 24.5% above the estimate PAC of ` 8,37,837/-. Undisputedly, the work was executed by the petitioner and his present grievance is that, as against his final bill, he was paid only an amount of ` 2,15,888/-. It is complaining of the non payment of the differential amount of ` 1,63,560/-, the writ petition was filed. 2. From the statement filed on behalf of the 1st respondent, the justification offered is that, for works executed under the MPLADS Scheme such as the work executed by the petitioner, tender excess is inapplicable. This stand of the respondents is sought to be justified by relying on Annexure R1 (a), clarification issued by the Secretary, Planning and Economic WPC No. 29703/03 :2 : Affairs Department on 3rd September, 1999, which says that for works awarded based on the estimates prepared on or after 1/7/99, when the PWD schedule of rates were revised, no tender excess/escalation will be allowed. 3. The contention raised by the counsel for the petitioner is that though the work in question was awarded to the petitioner by Ext.P1 dated 30/11/2000, which is much later to Ext.R1(a) and as tender excess at 24.5% was allowed, he is entitled to be paid the agreed amount. Although this argument of the petitioner would sound attractive, fact remains that, as far as the Government is concerned, in Ext.R1(a) dated 3rd of September, 1999 itself, the Government had made it clear to its subordinate officers that for works such as the one awarded to the petitioner, tender excess/escalation will not be allowed. If that be so, no officer acting within his authority could have awarded tender excess for any works covered by Ext.R1(a). If so, even if it is assumed that the petitioner was entitled to be paid the differential amount claimed in this writ petition, this Court will not be justified in directing the Government to make payment of the amount. On the other hand, the petitioner will have to claim the WPC No. 29703/03 :3 : same by initiating proceedings against the officers who have executed the agreement with him. Such being the case, this writ petition is dismissed, but however, leaving open the claim of the petitioner to proceed against whoever is responsible for causing such loss to the petitioner. ANTONY DOMINIC, JUDGE Rp