IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 13958 of 2008(J) -------------------------- PETITIONER(S): --------------- R.MOHANDAS, CONTRACTOR SHANTHINIKETH, CHIRACKAL P.O., KANNUR-670 011 BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.V.J.ANAND RESPONDENT(S) : --------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT WATER RESOURCES (IR) DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001. 2. CHIEF ENGINEER IRRIGATION AND ADMINISTRATION THIRUVANANTHAPURAM-695 033. 3. SUPERINTENDING ENGINEER IRRIGATION (SOUTH CIRCLE) THIRUVANANTHAPURAM-695 004. 4. EXECUTIVE ENGINEER IRRIGATION DIVISION, KOLLAM-691 002. 5. SHRI. N.K.PREMACHANDRAN MINISTER FOR WATER RESOURCES DEPARTMENT GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001. 5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER THE JUDGMENT IN W.P.(C) NO.13958 OF 2008 DATED 28/6/2010. GOVERNMENT PLEADER FOR R5 SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.13958/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER DATED 14.11.2006 ISSUED BY THE SECOND RESPONDENT. EXT.P2: COPY OF THE LETTER DATED 12.3.2007 ISSUED BY THE SECOND RESPONDENT. EXT.P3: COPY OF THE LETTER DATED 13.3.2007 ISSUED BY THE SECOND RESPONDENT. EXT.P4: COPY OF THE LETTER DATED 17.3.2007 ISSUED BY THE SECOND RESPONDENT. EXT.P5: COPY OF THE LETTER DATED 27.12.2007 ISSUED BY THE SECOND RESPONDENT. EXT.P6: COPY OF THE G.O. DATED 8.1.2008. EXT.P7: COPY OF THE G.O. DATED 14.3.2008. EXT.P8: COPY OF THE ORDER DATED 29.3.2008 OF THE THIRD RESPONDENT. EXT.P9: COPY OF THE ORDER DATED 29.3.2008 OF THE THIRD RESPONDENT. EXT.P10 : COPY OF THE ORDER DATED 29.3.2008 OF THE THIRD RESPONDENT. EXT.P11: COPY OF THE ORDER DATED 29.3.2008 OF THE THIRD RESPONDENT. EXT.P12: COPY OF THE LETTER DATED 12.3.2007. EXT.P13: COPY OF THE TENDER NOTICE DATED 17.10.2007 ISSUED BY THE THIRD RESPONDENT. EXT.P14: COPY OF THE SUPPLEMENTAL AGREEMENT NO.1 DATED 28.3.2006 TO THE ORIGINAL AGREEMENT NO.3/SE/ISC/05-06 DATED 4.4.05. EXT.P15: COPY OF THE SUPPLEMENTAL AGREEMENT NO.1 DATED 28.3.2006 TO THE ORIGINAL AGREEMENT NO.4/SE/ISC/05-06 DATED 4.4.2005. EXT.P16: COPY OF THE SUPPLEMENTAL AGREEMENT NO.1 DATED 28.3.2006 TO THE ORIGINAL AGREEMENT NO.5/SE/ISC/05-06 DATED 4.4.2005. EXT.P17: COPY OF THE SUPPLEMENTAL AGREEMENT NO.1 DATED 28.3.2006 TO THE ORIGINAL AGREEMENT NO.6/SE/ISC/05-06 DATED 4.4.2005. EXT.P18 COPY OF THE INSPECTION REPORT DATED 2.9.2006. EXT.P19: COPY OF THE ENQUIRY REPORT DATED 25.11.2006. EXT.P20: COPY OF THE REPORT DATED 25.1.2007. EXT.P21: COPY OF THE REPORT OF THE SITE INSPECTION CONDUCTED BY THE TECHNICAL COMMITTEE. EXT.P22: COPY OF THE REPORT OF THE TECHNICAL COMMITTEE. EXT.P23: COPY OF THE JUDGMENT DATED 12.2.2007 IN WP(C) NO.2984 OF 2007E WPC 13958/2008 EXT.P24: COPY OF THE ORDER DATED 24.7.2007 IN I.A.NO.10068 OF 2007 IN WP(C) NO.2984 OF 2007E EXT.P25: COPY OF THE JUDGMENT DATED 11.1.2008 IN CC(C) NO.823 OF 2007 – S EXT.P26: COPY OF THE SCHEDULE ATTACHED ALONG WITH THE COMMUNICATION DATED 11.3.2005. EXT.P27 : COPY OF THE LETTER DATED 23.8.2006. EXT.P28 : COPY OF THE LETTER DATED 15.5.2006. EXT.P29: COPY OF THE LETTER DATED 28.2.2007. EXT.P30: COPY OF THE COVERING LETTER OF THE ADDL. SECRETARY DATED 19.11.2007. EXT.P30A : COPY OF THE FORWARDING LETTER OF PRL. SECRETARY DATED 2.3.2006. EXT.P30B: COPY OF THE COMPLAINT ISSUED BY S.DILEEP DATED NIL. EXT.P31: COPY OF THE NOTICE DATED 8.1.2008. EXT.P32: COPY OF THE REPORT IN MATHRUBHUMI DAILY DATED 13.10.2008. EXT.P33: COPY OF THE COVERING LETTER DATED 11.4.2005. EXT.P34: COPY OF THE SCHEDULE OF WORK FOR THE GABION DESIGN. EXT.P35 : COPY OF THE GOVT. ORDER DATED 15.2.2008. EXT.P36: COPY OF THE JUDGMENT IN WP(C) NO.33941/2008 DATED 6.4.2008. RESPONDENTS' EXHIBITS: EXT.R1(a) : COPY OF THE DECISION OF COUNSEL OF MINISTERS DATED 12.3.2008. EXT.R1(b): COPY OF THE MINUTES OF THE CABINET SUB COMMITTEE MEETING DT.18.12.07 EXT.R1(c) : COPY OF THE REQUEST OF THE PETITIONER FOR FORECLOSURE OF THE WORK DATED 12.3.2007. EXT.R1(d) : COPY OF THE GOVERNMENT ORDER G.O.(Rt) NO.926/07/AWRD DATED 12.7.2007. EXT.R1(e) : COPY OF THE RELEVANT PORTION OF REPORT NO.93039/Ind. & PWD 1/07/Fin. FROM THE FINANCE INSPECTION WING. EXT.R1(f) : COPY OF THE G.O.(Rt) NO.597/2007/DMD DATED 12.2.2007. EXT.R1(g) : COPY OF THE GOVERNMENT ORDER NO.1040/07/WRD DATED 31.7.2007. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.13958 of 2008 --------------------------------------------- Dated this the 28th day of June, 2010 JUDGMENT On 26th December, 2004, Tsunami waves ravaged Tharayilkadavu in Arattupuzha Panchayath. Tharayilkadavu is a place which lies between Arabian Sea and Kayamkulam Lake. Due to Sunami, 28 lives were lost. Even after the Tsunami attack on 26th December, 2004, heavy tidal attack occurred in April, 2005 and July – August 2005. A mini Tsunami attack occurred on 19th September, 2005 and heavy tidal attacks took place on 5th and 6th December, 2005. It is stated that in Tharayilkadavu, at some places, the land available in between the sea and the back waters is only for a distance of 50-100 metres. 2. To obviate the misery of the common man at Tharayilkadavu, the Government decided to construct a sea wall for a length of 2000 mtrs. from Chainage 49.500 to 51.500 km., at Reaches I to IV at a cost of Rs.490 lakhs. Tenders were invited for the work. The petitioner, an A class Registered WPC 13958/2008 2 contractor, was the successful tenderer who offered to execute the work 1.1% below the estimated rate. 3. The tender was finalised on 4.4.2005. Agreement was executed between the Government and the petitioner. The site was handed over to the petitioner on 15.4.2005. As per the terms of the contract, the work was to be completed within ten months. 4. It is not in dispute that the petitioner commenced the work immediately. However, carrying out the work was practically impossible, as the coast was subject to severe wave attack and sea erosion. Due to the constant attack by sea waves, the inhabitants of the village were put to great misery. Even the public road was damaged. Several houses were also damaged. A public agitation took place. The general public blocked the National Highway. Due to the public agitation, the Department was forced to take emergent measures to lay an emergency core wall which was not part of the original contract work. The WPC 13958/2008 3 additional work was really as a temporary measure and it was estimated that at least 50% of the materials used by the contractor for the emergent work could be salvaged for user in the original work. Even the temporary measures taken were not fully successful. The sea wall continued to sink. The petitioner was requested to carry out the emergent works at the site. According to the petitioner, he complied with all the directions. It is submitted that supplemental agreement was also executed for the additional works. 5. Later, it was felt by the engineering wing that there was no use if the original work was completed as such. The peculiar behavioural pattern of the sea at the relevant place was found to be such that it was thought that certain other types of work should be done to prevent sea erosion and attack by sea waves. It was also thought that a detailed study by institutions of experts, namely, IIT, Madras and CWRDM, was required. It was also thought that the design should be changed and the exact place of erection should be deviated further backwards. In WPC 13958/2008 4 view of these changed circumstances, according to the petitioner, it was not feasible to complete the work as per the tender conditions. There is no case for any of the respondents that in spite of these changed circumstances, the petitioner was directed to complete the work as per the original contract proposal. 6. Certain payments were made to the petitioner. Measurements were being taken by the Engineers in charge of the work. According to the petitioner, he was entitled to get a total sum of Rs.2,68,65,230/-. It is stated that he was paid an amount of Rs.2,02,92,748/-. There were other claims also by the petitioner. According to the petitioner, the admitted balance amount would be more than Rs.65 lakhs. The amount was not paid. 7. According to the respondents, there is no admitted balance amount to be paid. There were irregularities in the work. No prior sanction was obtained for undertaking the WPC 13958/2008 5 emergent additional works. Manipulations were made in the measurement book. The petitioner did not complete the work as per the original contract. Therefore, he is not entitled to claim any amount. The report of the Technical Inspection Wing of the Finance Department shows that there were irregularities in the work. A vigilance enquiry was ordered. The report of the vigilance enquiry suggested that departmental action should be taken against the officers. 8. The petitioner had approached this Court earlier in WP(C)No.2984 of 2007. The prayer in that Writ Petition was to direct the Government to take a final decision on the report of the Chief Engineer dated 14.11.2006 and to make payment of the admitted amounts to the petitioner. By Ext.P23 judgment dated 12th February, 2007, a learned Single Judge of this Court directed the Government to take a final decision in the matter within two months. The respondents were also directed to make payment for the admitted work within two weeks. Time was extended for compliance of the judgment. Alleging that the WPC 13958/2008 6 judgment was not complied with, the petitioner filed Contempt Case as CC(C) No.823 of 2007. The Contempt Case was closed as per Ext.P25 judgment dated 11.1.2008 holding that there is dispute regarding the amount claimed by the petitioner and that according to the Government, they have complied with directions contained in the judgment. It was held that such disputes cannot be decided in a Contempt Case. 9. According to the respondents, the directions in the judgment in W.P.C.No.2984 of 2007 were complied with and Ext.P6 G.O.Rt.No.44/08/WRD dated 8.1.2008 was issued. Thereafter, as per G.O.R.T.No.316/08/WRD dated 14.3.2008 (Ext.P7), the Government rescinded the contract and rejected the request made by the petitioner on 12.3.2007 to foreclose the work. As per Ext.P7, the Government reserved the right to demand and recover compensation on account of the breach of contract and the loss sustained by the Government. Government accorded sanction for rearranging the work under new design. On the basis of Ext.P7 Government order, Exts. P8 to P11 orders WPC 13958/2008 7 dated 29.3.2008 were issued by the Superintending Engineer, Irrigation South Circle, Thiruvananthapuram, directing to take back the site of the work and to forfeit the security deposit of Rs.1 lakh each in respect of the 4 Reaches involved in the work. In this Writ Petition, the petitioner challenges Exts.P6 to P11. There is also a prayer for the issue of a writ of mandamus commanding the first respondent to disburse the sum of Rs.65,72,482/- together with interest at 18% per annum to the petitioner. Prayer No.(ii) made in the Writ Petition is for a direction not to hand over the work site to any other person without settling the account of the petitioner. It is submitted that prayer No.(ii) has become infructuous as the site was already handed over to the contractor as per the fresh contract. 10. In the Writ Petition, the petitioner has arrayed the minister for Water Resources Department, in his individual capacity, as 5th respondent. The petitioner has also alleged malafides against the Hon'ble minister. It is submitted by the learned counsel for the petitioner that the petitioner does not WPC 13958/2008 8 wish to press any of the contentions raised and the allegations levelled against the 5th respondent or to seek any relief on the basis of such contentions and allegations. In view of the submission made by the learned counsel for the petitioner, the fifth respondent is removed from the party array. 11. To consider whether Exts.P6 to P11 are legal and proper, it is necessary to consider several reports made by the different officers and teams of officers at different stages. On 23.8.2006, the Executive Engineer, Irrigation Division, Kollam submitted Ext.P27 report to the Superintending Engineer, Irrigation South Circle, Thiruvananthapuram. In Ext.P27, the following aspects were noticed: (i) The site was handed over to the contractor on 15th April, 2005 ; (ii) Since the coast was subject to severe wave attack and sea erosion from the 2nd week of April, 2005, carrying out any original work was impossible ; (iii) Confronted with public agitations, the department had WPC 13958/2008 9 to start laying of an emergency core wall, which was not part of the original work, along the line of sea attack, as a temporary measure. There was difficulty to collect materials as there was no sufficient space for stacking. (iv) The laying of the wall was started during second week of April 2005, immediately after getting the approval of alignment and initial levels. (v) The work was started with good speed, but the recurring sea attacks affected the progress of the work. (vi) In spite of the prevalence of the adverse conditions, construction progressed in Reaches I & II ; (vii) The alignment of Reach II had to be shifted backwards to save the coastal road being swept away; (viii) In Reaches III & IV, the absence of beach and continued sea attack prevented execution of the work ; (ix) Heavy sinking was observed in the “completed and on going portions” 12. The Hon'ble Minister for Water Resources inspected WPC 13958/2008 10 the site on 20th July, 2006. He interacted with the elected representatives, department officials and the local people and made an attempt to study the problems due to continuous sea attack. 13. The Hon'ble minister stated that the problems would be studied in detail by CWRDM. It was also decided to adopt modified design by CWPRS, for Reaches III & IV as it was expected that the modified design would be more resistant to sinking as compared with the conventional design. 14. In Ext.P27 report dated 23.8.2006, the Executive Engineer made detailed suggestions and mentioned about the work actually done at the work site. The items of extra work done by the contractor were also mentioned in Ext.P27. Revised estimate was also submitted in Ext.P27. 15. The Chief Engineer (Irrigation & Administration) submitted Ext.P18 inspection report, after making the inspection WPC 13958/2008 11 on 2.9.2006. The work done at different Reaches was mentioned in the report. The Chief Engineer submitted Ext.P1 letter dated 14.11.2006 to the Principal Secretary to Government, Water Resources (IR) Department, requesting for sanction for the emergency works and for permission to close the works in Reaches III and IV without risk and cost to both parties, on the strength of a closure agreement. It was suggested in Ext.P1 letter dated 14.11.2006 that the work in Reaches I & II can be continued and completed. In respect of Reach No.I, the Chief Engineer reported that the core wall structure was almost fully sunk in the toe portion and it was destroyed in the front portion. It was stated that continuing the construction of the seawall as per the design would be a futile attempt. As regards Reach II, it was reported that during the second week of December 2005, the sea advanced very much into the land and coastal road was about to be cut off. As demanded by the Member of Parliament, Member of Legislative Assembly, District Collector and members of the Panchayath, seawall to the length of 350 mtrs. was constructed on a war footing basis by aligning it back nearer to WPC 13958/2008 12 the coastal road. It was stated that virtually it was a process of dumping stones into the violent water and it was the only immediate alternative. Such a work was done with intimation to higher officers and the Chief Technical Examiner, Finance Inspection Wing. As regards Reaches III & IV, it was stated in Ext.P1 report that seawall construction was not possible in those Reaches due to continuous sea attack and absence of beach. According to the Chief Engineer, new designs were to be adopted at these Reaches and accordingly, it was suggested that the work in those Reaches could be closed without risk and cost to both parties. 16. As per Ext.P3 letter dated 13.3.2007 sent by the Chief Engineer to the Principal Secretary to Government, it was mentioned that the total amount due to the petitioner, after adjusting the payments already made, was Rs.65,72,482/-. 17. As per G.O.(Rt).No.398/2007/WRD dated 22.3.2007 and as modified by G.O. No.(Rt) 640/2007/WRD dated 10.5.2007, WPC 13958/2008 13 a technical committee was constituted to inspect the site, to conduct an enquiry and to make a report. The technical committee consisted of the District Collector, a Retired Chief Engineer and the Director of Centre for Earth Science Studies. The technical committee inspected the site, held discussions with all concerned and had meetings with the officers, local Panchayath members and the general public for a period from 11.6.2007 to 11.7.2007. The technical committee submitted Ext.P22 report to the Government. In Ext.P22 report, the following conclusion was arrived at : “The Field Officers concerned with this work rose to the occasion in mitigating the disaster owing the severe sea conditions and in saving the life and property of the people of the locality, but for some deviations in the established norms and procedures.” 18. The terms of reference of the committee were the following: “(1) Whether the works purported to have been executed at the site had been actually carried WPC 13958/2008 14 out? If so, assess the quantum of work carried out? (2) Whether the ground situations as reported by the Chief Engineer (I & A) from time to time was substantiated by the prevailing conditions at the site during the period reported? (3) Whether the action purportedly taken at the site were actually warranted by the prevailing site conditions during the said periods? (4) Whether all officials engaged in the execution, supervision and administration of the purported work meticulously complied with procedural formalities and acted in accordance with established norms? (5) Whether the actions relating to the release of funds to the contractor were justifiable, reasonable and consistent in terms of norms and procedures? If so fix the responsibility. (6) Whether there is any inconsistency in not WPC 13958/2008 15 proceeding with the original work thus leading to its non-completion and avoidable expenditure? (7) Whether the action of clubbing the purported emergency work with the original work is consistent with procedural, financial and administrative norms. (8) Any other relevant matter, which the committee deems, fit to be enquired into in this context.” 19. The committee reported that 30 mtr. erosion since 2002 had taken place in the locality. The committee stated that it was fully convinced that there was a situation which warranted the purported action taken at the site. Answering the question whether the officials of the committee meticulously complied with the procedural formalities, the committee answered thus: “From the records, the committee could see that all these formalities have been observed in all the four works in the reach from 49.500 km. To 51.500 km. in Tharayilkadavu”. WPC 13958/2008 16 20. It was also reported that considering the rates prevailing in the locality, the estimate rates for the emergency works quoted by the contractor were low and no financial loss to the Government was incurred as a result of the same. It was reported that since the original work was assigned to an agency for the four Reaches, the only option available was to authorise that agency to undertake the emergency works. The committee found that at different stages of the work, supervision was made by the superior authorities from time to time. The committee also stated that they did not find any irregularity or inconsistency in terms of norms and procedures with regard to the release of payment for the work executed by the petitioner. There was no deviation from the norms and not much of procedural irregularities. The non completion of the work was due to reasons beyond the control of the agencies. It was found that a unique situation prevailed in the locality where many factors like the impact of tsunami and the construction of breakwaters had led to the situation wherein the emergency works were unavoidable and therefore, the expenditure incurred WPC 13958/2008 17 was also unavoidable. 21. As per the G.O.(Rt) No.1581/07/WRD dated 21.12.2007, the Government constituted, on the basis of the decision of a cabinet sub committee, a team comprising of the Chief Technical examiner, the Chief Engineer and the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau to inspect the site, measure the work done and to find out whether there were irregularities. The team so constituted met on 22.12.2007. In the minutes of the meeting of the team (Ext.P5), it was recorded thus : “As far as sea wall construction is concerned, the measurements are the original measurements recorded during stack measurements. These measurements are recorded first by the Assistant Engineer, then checked by the Assistant Executive Engineer and finally checked by the Executive Engineer and then reported to the Chief Technical WPC 13958/2008 18 Examiner. So there is no meaning in checking of the measurements of the sea wall construction at Arattupuzha today, as it won't reflect the then situation. Hence, measurements which are already recorded in the relevant measurement books are the only measurements available. The measurements already taken should be regularised after completion of the enquiry and observations made on the subject. This will not hinder the T.R.P. works being arranged in the same chainage.” 22. The team of officers “assessed and tabulated” the work left by the contractor. As per the assessment, the balance amount to be paid to the petitioner in respect of Reaches I to III are the following : Reach I : Rs.19,26,833.00 Reach II : Rs.24,59,861.18 WPC 13958/2008 19 Reach III : Rs.22,64,373.00 For Reach No.IV, no balance amount was found to be payable. The total amount thus payable to the petitioner was found as Rs.66,51,067.18. 23. As already stated, the petitioner had filed W.P.(C) No.2984 of 2007 voicing the grievance that in spite of the letter dated 14.11.2006 issued by the Chief Engineer, Irrigation & Administration to the Principal secretary to Government (Ext.P6 in WP(C) No.2984 of 2007 – Ext.P1 in the present Writ Petition), the payments were not made to him. It was pointed out that the letter dated 14.11.2006 suggested granting permission to close the work in Reaches III & IV without risk and cost to both parties. It was also pointed out that in the letter dated 14.11.2006, it was specifically mentioned that new designs were to be adopted for Reaches III & IV. W.P.(C) No.2984 of 2007 was disposed of as per Ext.P23 judgment dated 12th February, 2007 directing the Government to consider the letter dated 14.11.2006 (Ext.P6 and Ext.P1 referred to above) and take a WPC 13958/2008 20 final decision within two months. The period was extended by a further period of two months from 24th July 2007 by this Court as per the order dated 24th July, 2007 (Ext.P24). The petitioner filed Contempt Case (C) No.823 of 2007 alleging that the Government disobeyed the directions contained in Ext.P23 judgment. When the Contempt Case came up for hearing, it was submitted by the Government Pleader that the directions in the judgment were complied with and orders were passed by the Government. On the basis of the submission made by the Government Pleader, Contempt Case was closed. The order passed by the Government is G.O.Rt. No.44/08/WRD dated 8.1.2008 (Ext.P6). As per Ext.P6 dated 8.1.2008, the Government came to the conclusion, based on the report of the Chief Technical Examiner, Finance Inspection Wing, dated 5.2.2007, that there were serious irregularities in the matter of the construction of seawall. Another reason stated is that the emergency works done were not visible during inspection and therefore, the Government could not make assessment of the emergency works. It is also stated in Ext.P6 that part of the WPC 13958/2008 21 materials were supplied during December, 2005 and that the reasons stated for not proceeding with the work, namely, the absence of beach and continuing