IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 8961 of 2007(P) ---------------------------------- PETITIONER(S): ------------------------ C.SEBASTIAN, JOY'S THAZHAM SOUTH CHATHANNOOR P.O., KOLLAM 691 572. BY ADV. SRI.B.SURESH KUMAR RESPONDENT(S): ------------------------- 1. THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. THE TECHNICAL MEMBER, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. 3. THE SUPERINTENDING ENGINEER, P.H.CIRCLE, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, WATER SUPPLY DIVISION, KERALA WATER AUTHORITY, ATTINGAL. 5. THE ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY DIVISION, KERALA WATER AUTHORITY, ATTINGAL. 6. N.RADHAKRISHNAN, ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PH SUB DIVISION, KADUTHURUTHY, KOTTAYAM DISTRICT. 7. JOHN MORRIS, ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, DEPUTY PROJECT CO-ORDINATOR, PROJECT IMPLEMANTATION UNIT VETTA MUKKU, PANMANA P.O., KOLLAM. 8. * ADDITIONAL 8TH RESPONDENT IMPLEADED G. SURESH, WATER AUTHORITY CONTRACTOR, SUNITHA BHAVAN, AVANAVAN CHERRY ATTINGAL PO, THIRUVANANTHAMURAM (* VIDE I.A. NO.1369/2010 DATED 02.02.2010) ADV. SRI.M.DINESH, SC, KWA FOR R1-7 ADV. SRI.K.SUBASH CHANDRA BOSE FOR ADDL.R8 ADV. SRI.V.RAJASEKHARAN PILLAI FOR ADDL.R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8961 of 2007(P) ---------------------------------------- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE WORK ORDER DATED 08.05.2000 ISSUED TO THE PETITIONER BY THE SUPERINTENDING ENGINEER, PH CIRCLE, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM EXT.P2 : COPY OF THE LETTER DATED 4.11.2000 ISSUED BY THE PETITIONER TO THE EXECUTIVE ENGINEER. EXT.P3 : COPY OF THE LETTER DATED 16.05.01 ISSUED BY THE PETITIONER TO THE SUPERINTENDING ENGINEER EXT.P4 : COPY OF THE LETTER DATED 06.06.01 ISSUED BY THE PETITIONER TO THE SUPERINTENDING ENGINEER EXT.P5 : COPY OF THE LETTER DATED 20.07.01 ISSUED TO THE EXECUTIVE ENGINEER BY THE PETITIONER EXT.P6 : COPY OF THE LETTER DATED 04.08.01 ISSUED BY THE PETITIONER TO THE SUPERINTENDING ENGINEER EXT.P7 : COPY OF THE LETTER DATED 07.12.01 ISSUED BY THE PETITIONER TO THE SUPERINTENDING ENGINEER EXT.P8 : COPY OF THE LETTER DATED 27.12.02 ISSUED BY THE PETITIONER TO THE EXECUTIVE ENGINEER EXT.P9 : COPY OF THE LETTER DATED 09.05.03 ISSUED BY THE PETITIONER TO THE EXECUTIVE ENGINEER EXT.P10 : COPY OF THE LETTER DATED 19.06.03 SENT BY THE PETITIONER TO THE ASSISTANT EXECUTIVE ENGINEER EXT.P11 : COPY OF THE LETTER DATED 11.08.03 SENT BY THE PETITIONER TO THE ASSISTANT EXECUTIVE ENGINEER EXT.P12 : COPY OF THE LETTER DATED 10.11.03 SENT BY THE PETITIONER TO THE SUPERINTENDING ENGINEERING EXT.P13 : COPY OF THE LETTER DATED 26.06.04 SENT BY THE PETITIONER TO THE EXECUTIVE ENGINEER EXT.P14 : COPY OF THE LETTER DATED 15.09.04 SENT BY THE PETITIONER TO THE SUPERINTENDING ENGINEER EXT.P15 : COPY OF THE ORDER DATED 30.10.04 ISSUED BY THE SUPERINTENDING ENGINEER EXT.P16 : COPY OF THE JUDGMENT DATED 02.11.04 IN WP(C)NO.2260/04 PASSED BY THIS HON'BLE COURT EXT.P17 : COPY OF THE JUDGMENT DATED 20.12.04 IN WA NO.2260/04 PASSED BY THIS HON'BLE COURT EXT.P18 : COPY OF THE REPRESENTATION DAED 24.12.04 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXT.P19 : COPY OF THE FRESH TENDER DATED 07.04.05 ISSUED BY THE 3RD RESPONDENT EXT.P20 : COPY OF THE REPRESENTATION DATED 08.04.05 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF ENGINEER EXT.P21 : COPY OF THE ORDER DATED 26.03.05 PASSED BY 1ST RESPONDENT EXT.P22 : COPY OF THE REPRESENTATION DATED 30.04.05 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXT.P23 : COPY OF THE INTERIM ORDER DATED 03.05.05 IN WP(C)NO. 13085/05 PASSED BY THIS HON'BLE COURT EXT.P24 : COPY OF THE INTERIM ORDER DATED 18.05.05 IN WP(C)NO. 13085/05 PASSED BY THIS HON'BLE COURT EXT.P25 : COPY OF THE ORDER DATED 26.05.05 ISSUED BY THE CHIEF ENGINEER EXT.P26 : COPY OF THE MINUTES OF THE MEETING HELD ON 30.05.05 BY THE SUPERINTENDING ENGINEER EXT.P27 : COPY OF THE ORDER DATED 27.05.05 ISSUED BY THE CHIEF ENGINEER EXT.P28 : COPY OF THE FORM 21 AFFIXED IN EVERY M BOOK EXT.P29 : COPY OF THE JUDGMENT DATED 27.06.05 IN WP(C)NO.13085/05 PASSED BY THIS HON'BLE COURT EXT.P30 : COPY OF THE LETTER DATED 23.12.09 ISSUED BY THE SUPERINTENDING ENGINEER ON THE APPLICATION FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT EXT.P31 : COPY OF THE LETTER ISSUED TO THE SUPERINTENDING ENGINEER BY THE EXECUTIVE ENGINEER DATED 24.06.04 EXT.P32 : COPY OF THE NOTICE DATED 24.11.09 ISSUED TO THE POWER OF ATTORNEY HOLDER OF THE PETITIONER EXT.P33 : COPY OF THE COMMUNICATION DATED 21.01.10 ISSUED BY THE DEPUTY CHIEF ENGINEER ON THE APPLICATION FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT EXT.P34 : COPY OF THE ORDER DATED 15.02.07 ISSUED TO THE ADDITIONAL 8TH RESPONDENT EXT.P35 : COPY OF THE ACCEPTED SCHEDULE OF WORK DATED 08.02.07 ISSUED TO THE ADDITIONAL 8TH RESPONDENT EXT.P36 : COPY OF THE ORDER DATED 04.10.10 ISSUED BY THE STATE INFORMATION COMMISSION EXT.P37 : COPY OF THE COMMUNICATION DATED 20.10.10 FORWARDING A COPY OF THE REPORT DATED 06.12.05 ALLEGEDLY ISSUED BY JOHN MORRIS AND VIJI TITUS EXT.P38 : COPY OF THE LETTER DATED 03.12.10 SUBMITTED BY THE POWER OF ATTORNEY HOLDER OF THE PETITIONER BEFORE THE STATE INFORMATION COMMISSION RESPONDENT'S EXHIBITS: EXT.R1 : COPY OF THE GATE PASS NO.39/2002-03 DATED 16.08.02 EXT.R1(a) : COPY OF THE GATE PASS NO.23/03-04 DATED 19.05.03 EXT.R1(b) : COPY OF THE LETTER SENT BY THE EXECUTIVE ENGINEER TO THE PETITIONER TRUE COPY PA TO JUDGE SMT S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.8961 OF 2007 --------------------------------------- Dated this the 17th day of March, 2011 JUDGMENT The petitioner is a Contractor who undertook certain work on behalf of the Kerala Water Authority. He did not complete the work. Some part of the work was still to be done. There was dispute between the respondents and the petitioner in respect of balance work. Ultimately, the respondents decided to re-tender the work. Alleging that the re-tender was without measuring the work done by the petitioner, the petitioner filed W.P.(C) No.13085/2005 before this Court in which this Court relegated the petitioner to the remedy by way of a civil suit. The petitioner did not file any civil suit. The reason stated by him in this writ petition for not availing of that remedy is that a vigilance enquiry was ordered into the same and one Sri. John Morris, Assistant Executive Engineer, Kerala Water Authority was appointed to conduct vigilance enquiry in the matter. Subsequently, the said Sri. John Morris filed a report, which according to the petitioner is favourable to the petitioner. But, the petitioner was not favoured W.P.(C)No.8961/07 2 with a copy of the said report. In view of the vigilance enquiry ordered, the petitioner did not file the suit as directed in Ext.P29 judgment, is the contention of the petitioner. According to the petitioner, in view of the report, the petitioner is entitled to re-agitate the matter in this writ petition. The petitioner seeks the following reliefs: (i) a writ of mandamus or other appropriate writ, direction or order directing the respondents 1 &2 to serve a copy of the report of John Morris, Assistant Executive Engineer, Kerala Water Authority to the petitioner forthwith. (ii) to direct the respondent to measure the work already completed by the petitioner and make payment for the completed work and till such time directed the respondents not to commence the balance work”. As far as the first prayer is concerned, I do not find any difficulty in allowing that prayer. Accordingly, respondents 1 and 2 are directed to serve a copy of the report of Sri. John Morrils, Assistant Executive Engineer, Kerala Water Authority in the enquiry conducted by him, to the petitioner within a period of two weeks from the date of receipt of a copy of this judgment. But, as far as the second prayer is concerned, I am of opinion that the same is barred by principles akin to res judicata by Ext.P29 judgment in W.P.(C)No.13085/2005. The same reads as follows: W.P.(C)No.8961/07 3 “The petitioner was awarded a work by the Water Authority. The said work was for providing water supply to Chemmannamkunnu Harijan Colony in Pullampara Grama Panchayat. On the allegation that the petitioner failed to complete the work in time, the Superintending Engineer, by Exhibit P15 order dated 30.10.2004, terminated the contract awarded to the petitioner at his risk and cost. the petitioner approached this Court by filing W.P.(C). No. 32051/2004. The said writ petition was dismissed by this Court by Exhibit P16 judgment. But, on appeal, a Division Bench of this Court, by Exhibit P17 judgment, permitted the petitioner to file a representation and also directed the first respondent to consider that representation. He filed Exhibit P18 representation. That was considered and rejected by the Managing Director by Exhibit P21. In the meanwhile, the respondents have issued Exhibit P19 tender notification for certain works, including the work done by the petitioner. This writ petition is filed challenging Exhibits P15, P19 and P21. 2. The petitioner alleges that the work he has already completed has also been included in the new tender notification. Therefore, this Court, on 18.05.2005, issued an interim order directing the second respondent to cause measurement of the work done by the petitioner with notice to him. It was also ordered that only thereafter, the work as per the fresh notification shall be started. The petitioner submits, though the measurement was taken as directed by this Court, the same was done under the supervision of the Engineer, who prepared the fresh notification, which included the works already done by the petitioner. Therefore, he has not done the measurement properly to vindicate his stand. So, he petitioner has filed an IA praying to appoint an Advocate Commissioner to oversee the measurement. 3. The respondents have filed a counter affidavit, in which it is stated that the work for supply of drinking water to a residential colony of the members of the Scheduled Caste has to be finished expeditiously. They denied the allegations of the petitioner. It is also pointed out that though the petitioner has done certain works, they have o be redone as the petitioner has not executed them properly and therefore, certain works done by the petitioner were also included in the fresh tender W.P.(C)No.8961/07 4 notification. So, they prayed for the dismissal of the writ petition. 4. Heard the learned counsel on both sides. The learned counsel for the petitioner reiterated the contentions raised in this writ petition and prayed for a direction to the the Managing Director to consider Exhibit P22 representation filed by him. 5. Having regard to the nature of the dispute involved in this case, no representation can be disposed of to the satisfaction of the petitioner and no measurement can be made, fully satisfying him. The dispute between the parties has to be resolved by a civil court. The petitioner can move the competent civil court for appointment of an Advocate Commissioner to measure the work already done by him. All the substantive claims made by the petitioner in this writ petition can be granted by the civil court also. In view of the said position, the petitioner is relegated to take recourse to the alternative remedy available to him. But, it is ordered that if the petitioner produces a copy of this judgment within one week before the first respondent, the said respondent shall look into the allegations made by the petitioner in exhibit P22 before the new contractor is allowed to commence the work. The first respondent will preferably do this within one week from the date of receipt of a copy of this judgment. Though Exhibit P22 is not a statutory representation and the petitioner does not have any legal right to claim the disposal of it, the above direction is issued in public interest. Subject to the above direction, the writ petition is dismissed. The contentions of both sides regarding the merits of the case are kept open. (underlining supplied) From the same, it is abundantly clear that the question of measurement of the work done by the petitioner was also a subject matter therein and the Court has elaborately considered the same before relegating the petitioner to the remedy by way of filing a civil suit. As such, going by W.P.(C)No.8961/07 5 principles of res judicata the petitioner cannot re-agitate the said prayer in another writ petition. Therefore, the second prayer cannot be considered in this writ petition. Accordingly, in respect of the second prayer leaving the petitioner to seek his remedies as per Ext.P29 judgment, this writ petition is disposed of. S. SIRI JAGAN, JUDGE acd W.P.(C)No.8961/07 6