IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 31032 of 2009(Y) PETITIONER: --------------- P.J.JACOB, P.W.D. CONTRACTOR, PEEJAY CONSTRUCTIONS, ALINCHUVADU, VENNALA, EDAPPALLY P.O., ERNAKULAM DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.N.SHAMSUL HUDA RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, P.W.D.(ROADS & BRIDGES), SOUTH CIRCLE, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, P.W.D. (ROADS DIVSION), KOTTAYAM. 4. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D.(ROADS SUB DIVISON). VAIKOM. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE SELECTION NOTICE NO.DB 11-4450/99 DATED 24.6.2002 ISSUED BY THE SECOND RESPONDENT. EXT.P2 TRUE COPY OF THE LETTER DATED 2.7.2003 ISSUED BY THE FOURTH RESPONDENT. EXT.P3 TRUE COPY OF THE LETTER NO.AB4(3)/4799/03 DATED 29.8.2009 ISSUED BY THE THIRD RESPONDENT. EXT.P4 TRUE COPY OF THE REPRESENTATION DATED 9.9.2009 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT. EXT.P5 TRUE COPY OF THE REPRESENTATION DATED 26.10.2009 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 2 TO 4. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 31032 OF 2009 ------------------------------------------------------ Dated this the 26th day of July, 2010 JUDGMENT The petitioner was awarded the contract for the construction of Triple Box Culvert along with approach road at Gandharikadavu at Ch.1/800 at Ayamkudy-Munnar Road in Kottayam District. The petitioner executed an agreement dated 5.7.2002. The site was handed over on 9.10.2002 to the petitioner. The time for completion of the work was fixed as 8.11.2003. According to the respondents, the petitioner abandoned the work and did not complete the work. He sought for extension of the period for completion up to 31.3.2006. Time up to 31.12.2005 was granted for completing the work. The work was not completed even before that date. 2. It is stated by the petitioner that the construction of Triple Box Culvert was completed but the approach road could not be completed due to displacement of subsoil and sinkage. It is admitted in the Writ Petition that the agreement was terminated without imposing risk and cost upon the petitioner. The grievance of the petitioner is that though he submitted bill for the work done, it was W.P.(C) NO.31032 OF 2009 :: 2 :: not sanctioned and that the measurements of the work done were not taken. He apprehends that if site is handed over to the new contractor, it would become impossible for taking the measurements and finalising the final bill. The reliefs prayed for in the Writ Petition are the following: “i) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to record the measurements of the works already executed by the petitioner and to record the measurements of the materials arranged by the petitioner at the site, before handing over the site to the new contractor for the execution of the balance work; ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 2 to 4 to permit the petitioner to execute the closure agreement as contemplated in Ext.P3, and to release the admitted bill amount, retention and security deposit due to the petitioner forthwith, with interest at the treasury rate; iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 2 to 4 to consider and dispose of Ext.P4 and P5 representations, forthwith; W.P.(C) NO.31032 OF 2009 :: 3 :: iv) issue such other writ, order or direction which may deem fit in the facts and circumstances of the case.” 3. The third respondent has filed a counter affidavit for himself and on behalf of the first respondent. It is stated that the petitioner abandoned the work. Though time was extended up to 31.12.2005, the petitioner did not complete the work. On 17.12.2005, some portions of the embankment failed and slipped and the retaining wall and the wing wall were also damaged. Thereafter, the petitioner had not resumed any work. On 5.2.2009, the Chief Engineer, Superintending Engineer and the Executive Engineer inspected the site in the presence of the Member of the Legislative Assembly and instructed the petitioner to reconstruct the wing walls, protection walls and retaining wall. On 25.2.2008, a meeting was held in the Chamber of the Honourable Minister in the presence of the petitioner and departmental officers. It was decided to close the work and to re-arrange the balance work. 4. It is further stated in paragraphs 8 and 9 of the counter affidavit as follows: W.P.(C) NO.31032 OF 2009 :: 4 :: “8. On 12.5.2008 the contractor has been addressed by the Asst. Exe. Engineer, PWD roads Sub Division, Vaikom for taking the levels of earth work and other measurements of work done to prepare final bill submit to the proposal for closing the work. The Asst. Engineer, Roads Section, Kaduthuruthy has also been addressed to the petitioner on 27.5.2008 by registered post with AD for attending the Section Office for taking levels. The contractor has acknowledged the letter copies of the letters addressed to the contractor by the Asst. Exe. Engineer and the Asst. Engineer are here with attached. Even after the letters from the Asst. Exe. Engineer and the Asst. Engineer, the contractor could not taken any attempt to attend the above offices for taking either levels or measurements. 9. Under the above circumstances the Asst. Engineer, Roads Section, Kaduthuruthy had taken the measurements of the work done by the petitioner without his presence and prepared the CC IIIrd and final bill and submitted to Division Office on 31.7.2008. CC 3rd and final bill in respect of the said work was registered in the Division Bill register as B/R No.121/08- 09 dt.22.8.08 for an amount of Rs.5,14,143/-. The payment in respect of the bill could not be paid to the contractor. For making payment the petitioner has to execute a closure agreement in the Office of the W.P.(C) NO.31032 OF 2009 :: 5 :: Superintending Engineer, Roads & Bridges, South Circle, Thiruvananthapuram.” 5. The final bill amount was not paid as the petitioner had not executed the closure agreement. Ext.P5 representation dated 26.10.2009, submitted by the petitioner before the Superintending Engineer and others, is pending consideration. 6. Though it was stated in the counter affidavit that the site was not handed over to the new contractor, learned Government Pleader submitted that thereafter, the site was handed over and the new contractor has started construction as per the contract. In view of the categoric statements in the counter affidavit that the work done was measured and that the petitioner did not co-operate in spite of two letters having been sent to him for that purpose, there is no point in contending that the measurements should be taken again. Therefore, the relief prayed for in that regard cannot be granted. 7. As regards the claim for balance amount due, it is the specific stand of the respondent that without executing the closure agreement, the balance amount could not be paid. In Ext.P5 W.P.(C) NO.31032 OF 2009 :: 6 :: representation, the petitioner has made it clear that he is prepared to execute the closure agreement at any time. In Ext.P5 representation, the petitioner claims that he is entitled to an amount of Rs.10 lakhs whereas in the counter affidavit, it is stated that the final bill was for an amount of Rs.5,14,143/-. There cannot be any decision in the Writ Petition in respect of any dispute regarding the quantum of the amount payable to the petitioner. In the facts and circumstances of the case, the Writ Petition is disposed of directing the Superintending Engineer (second respondent) to dispose of Ext.P5 representation so as to enable the petitioner to execute the closure agreement. On execution of such closure agreement, appropriate orders shall be issued for disbursement of the balance amount due to the petitioner within a period of two months from the date of execution of the closure agreement. (K.T.SANKARAN) Judge ahz/