IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 WP(C).No. 7013 of 2010(B) -------------------------------------- PETITIONER(S): ------------------------- P.ABDUL RAZAK, AGED 55 YEARS,S/O.P.M.MOIDEEN HAJI, PULLIYIL MADASSERI HOUSE, P.O.MELMURI, (P.W.D.CONTRACTOR). BY ADVS. SRI.ESM.KABEER, SRI.ABDUL MAJEED.N. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINOR IRRIGATION DEPARTMENT. 2. THE SUPERINTENDING ENGINEER, MINOR IRRIGATION CIRCLE, KOZHIKODE. 3. THE EXECUTIVE ENGINEER, MINOR IRRIGATION DEPARTMENT, MALAPPURAM. 4. THE ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, THIRURANGADI. R1 TO R4 BY GOVERNMENT PLEADER SRI.M.A ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7013/2010 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 03/02/09 OF THE 2ND RESPONDENT. P2: COPY OF THE JUDGMENT IN WPC.NO.9071/09 DTD. 20/03/09. P3: COPY OF THE CIRCULAR NO.60/08 DTD. 10/10/98. P4: COPY OF THE JUDGMENT IN WA.NO.1162/09 DTD. 30/09/09. P5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 20/10/09. P6: COPY OF THE NOTIFICATION DTD. 23/07/09. P7: COPY OF THE JUDGMENT IN WP(C) NO.37562/09 DTD. 19/01/2010. P8: COPY OF THE AD CARD ACKNOWLEDGING THE RECEIPT OF THE JUDGMENT OF THE 2ND RESPONDENT. P9: COPY OF THE LETTER DTD. 18/02/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 7013 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2010 J U D G M E N T The petitioner is a contractor who executed an agreement with the 3rd respondent for execution of a work. Petitioner completed only 20% of the work. According to the petitioner, the petitioner could not complete the balance work due to reasons beyond his control. According to the petitioner, in respect of further proceedings for non- completion of the work, the petitioner is entitled to the benefit of Ext.P3 circular. Claiming that benefit, he filed W.P.(C) No.9071/2009, in which, by Ext.P2 judgment, a learned Judge of this court relegated the petitioner to the remedy by way of a suit. He filed W.A.No.1162/2009 against that judgment and by Ext.P4 judgment, a Division Bench of this court directed the Government to consider the claim of the petitioner on the basis of the said circular. Thereupon, the petitioner filed Ext.P5 representation as W.P.(C)No. 7013 of 2010 -2- directed in Ext.P4 judgment. In the meanwhile, the 2nd respondent issued Ext.P6 notification inviting tenders including for the work undertaken by the petitioner. Petitioner challenged the same by filing W.P.(C) No.37562/2009, wherein by Ext.P7 judgment the Government was directed to pass orders on Ext.P5 after hearing the petitioner and also directed the 3rd respondent to take final decision based on Ext.P3 circular. Pursuant thereto, Ext.P9 order was issued to the petitioner, wherein it is stated thus: “Please refer to the letter cited vide ref.(2) above. A tentative loss of about Rs.1,37,32,572/- is sustained to govt. on re-arrangement of above said work. As such you are liable to remit the amount to government as per the agreement conditions. You are therefore directed to remit Rs.1,37,32,572/- (Rupees one Crore thirty seven lakhs Thirty two thousand five hundred and seventy two only) at Govt. Treasury, Malappuram, under the HEAD OF ACCOUNT “4702-01-101-93-MI Class I NABARD Assisted Schemes (P) “ within 15 days form the date of receipt of this letter, failing which action will be taken against you to recover the amount under the provisions of Revenue Recovery Act or otherwise.” 2. The contention of the petitioner is that Ext.P9 has been passed in violation of Exts.P4 & Ext.P7 judgments. W.P.(C)No. 7013 of 2010 -3- None of the matters which were directed to be considered by the Division Bench and the Single Judge was considered in Ext.P9. Instead, the petitioner has been directed to pay Rs.1,37,32,572/- towards damages. The petitioner therefore seeks the following reliefs: “(i) To call for the records relating to Exhibit P1 to P9 and to issue a writ of Certiorari quashing Exhibit P9 since it is against Exhibit P4 and P7 judgments of this Hon'ble Court. (ii) to declare that the tentative fixation of loss sustained to the Government on re-arrangement of the work as per Exhibit P9 is illegal and unsustainable.” 3. I have heard the learned Government Pleader also. After reading Ext.P9, I am satisfied that, the same has not been passed in compliance with Exts.P4 & P7 judgments of this court. This court directed to pass order in a particular manner. The respondents are bound to consider the same in its right perspective as directed by this court, which has not been done while passing Ext.P9 order. Accordingly Ext.P9 is quashed. I direct the 1st respondent to reconsider Ext.P5 by strictly complying with the directions in Exts.P4 & P7 judgments giving specific W.P.(C)No. 7013 of 2010 -4- reasons in respect of each contention of the petitioner, particularly with reference to the claim of the petitioner with reference to Ext.P3 circular. This shall be done as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/