IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WP(C).No. 33001 of 2009(U) -------------------------- PETITIONER(S): --------------- INFANT THOMAS, MAILEL HOUSE, MACHIPLAVU, IDUKKI. BY ADV. SRI.P.P.JACOB RESPONDENT(S): --------------- 1. ADIMALI GRAMA PANCHAYATH, ADIMALLI, IDUKKI,REPRESENTED BY ITS SECRETARY. 2. THE ASSISTANT ENGINEER LOCAL SELF GOVERNMENT DEPARTMENT ADIMALI BLOCK, ADIMALI,IDUKKI. 3. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT (DA) DEPARTMENT THIRUVANANTHAPURAM. ADV. SRI.LATHEESH SEBASTIAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.33001 OF 2009 (U) -------------------------------------------------- Dated this the 1st day of February, 2010 J U D G M E N T The first respondent Panchayat invited tenders for construction of an Office cum shopping complex. It is stated that three offers were received and the petitioner who had quoted 2% above the estimated rate, was the lowest bidder. By Ext.R1(a) he was called for a negotiation. Petitioner appeared for negotiation and had submitted Ext.P1, containing the conditions suggested by him. The Panchayat considered the matter and passed Ext.P2 resolution dated 15.5.2008. After considering the conditions suggested by the petitioner in Ext.P1, the Panchayat found that, the claim for enhancement cannot be considered but however, Panchayat found that the claim of the petitioner for 2% above the estimate rate was reasonable. Therefore, the Panchayat decided that the enhancement in rates as provided in Ext.P3, will be given to the petitioner. 2. Accordingly, petitioner entered into an agreement with the Panchayat sometime during April, 2008 and thereafter WPC.No.33001/2009 :2 : Panchayat issued Ext.P4 requiring the petitioner to commence the work. Petitioner submits that he completed first stage and submitted Ext.R1(c) part bill for Rs.33 lakhs. The Panchayat also states that the bill was received and that admissible amount has been paid. According to the petitioner, the rate allowed by the Panchayat was not viable and as a result there of in the first stage itself he suffered huge loss. Therefore he issued Ext.P4, claiming escalation in rates, which was rejected by the Panchayat by Ext.P12. In the meantime, the petitioner approached this court complaining of delay in considering Ext.P7. That resulted in Ext.P11 judgment directing an enquiry by the 3rd respondent into the whole matter. However it was during the pendency of the writ appeal by the petitioner filed against Ext.P11 judgment, Ext.P12 order was issued. Therefore, recording Ext.P12, the writ appeal was closed. Thereupon this writ petition is filed and what is challenged is Ext.P12 order referred to above. 3. The main contention raised by the counsel for the petitioner is that, in Ext.P2 resolution the Panchayat having resolved to give him the benefit of Ext.P3 Government Order dated WPC.No.33001/2009 :3 : 15.1.2008, he is entitled to enhancement as provided in clause(1) of Ext.P3. It is also his case that, though the agreement was executed on 30.5.2008 the site was handed over only on 15.1.2009 and that the delay also contributed to the loss suffered by him. 4. On the other hand counsel for the Panchayat submits that, Ext.P2 resolution was passed by the Panchayat, only because of the Panchayat found the claim of the petitioner for 2% enhancement claimed by him reasonable. It is stated that the decision of the Panchayat as reflected in Ext.P2 is only to give him 2% enhancement, which was permissible as per clause (2) of Ext.P3 Government Order. Counsel submits that benefit as resolved in Ext.P2 has already been given and that therefore the petitioner is not entitled to any further enhancement. It is also his case that if this enhancement was not acceptable to the petitioner, petitioner need not entered into the agreement or undertaken the work and the Panchayat would not have awarded him the work. In so far as the claim of the petitioner for damages on the alleged delay in handing over the site is concerned, Panchayat submits that the said allegation is totally incorrect. According to the Panchayat the site WPC.No.33001/2009 :4 : was handed over in time and the delay is attributable on the petitioner himself. 5. As far as the claim for damages on the alleged delay in handing over the site is concerned, even during the course of the submissions, counsel submits that the petitioner wants this issue to be left open to be adjudicated in appropriate proceedings. Therefore this court is not called upon to consider that contention of the petitioner in this writ petition. 6. What remains to be considered is the sustainability of the claim of the petitioner for the benefit of clause (1) of Ext.P3 Government Order dated 15.1.2008. Ext.P2 is the resolution passed by the Panchayat. A reading of Ext.P2 shows that the Panchayat considered the suggestions made by the petitioner in Ext.P1, it found the demand of the petitioner for 2% enhancement reasonable and on that basis, the Panchayat resolved to give enhancement in the price of cement and steel within the four corners of Ext.P3 Government order. 7. Ext.P3 Government order has two parts. Clause(1) provides that market rate of cement as fixed by the Malabar Cements and WPC.No.33001/2009 :5 : Market Rate of steel as fixed by the Steel Authority of India as on the date of tender would be adopted by the local Governments for the purpose of estimate. Clause (2) provides that in respect of works for which estimates have already been prepared and the works tendered but contract not yet finalised, local Self Governments are permitted to meet the difference of costs between the 2007 PWD schedule rates for cement and steal and the market rate as indicated above or meet the tender excess which is lower. While the petitioner asserts his claim for the benefit of clause(1) of Ext.P3, Panchayat submits that by the resolution, which only intends to extend the benefit in clause(2) of Ext.P3. A reading of Ext.P2 resolution shows that the enhancement was decided to be given for the reason that the Panchayat found the demand of the petitioner for 2% enhancement is reasonable. According to the Panchayat, such enhancement of 2% was permissible in terms of clause(2) of Ext.P3 and therefore that benefit has already been given. A combined reading of Exts.P2 and P3 does not lead me to conclude that the stand taken by the Panchayat and as canvassed before this court is unreasonable, warranting interference in a writ proceedings. WPC.No.33001/2009 :6 : Therefore, I am not persuaded to interfere. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/