IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WA.No. 1510 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.13154/2007 Dated 22/05/2007 .................... APPELLANT(S): PETITIONER ------------------------ A.C.HARIDAS, HAPPY CONSTRUCTIONS, HAPPY VILLA, C.S.E.Z. P.O., KAKKANAD, KOCHI-682 037. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.LEGY ABRAHAM SRI.RAGHAVAKUMAR.V.S. RESPONDENT(S): /RESPONDENTS --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, PRAJOE TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014. 3. THE ASST. EXECUTIVE ENGINEER, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, PRAJOE TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014. 4. THE SITE ENGINEER, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, PRAJOE TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014. 5. THE PRINCIPAL, COLLEGE OF ENGINEERING, ADOOR, MANAKKALA P.O., ADOOR, PIN-691 551. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R2 TO 5 SRI.T.N.GIRIJA FOR R2 TO 5 SHRI M.K.CHANDRAMOHAN DAS,SC,IHRD FOR R2 SRI.V.A.MUHAMMED FOR R2 TO 5 MR.GEORGE MECHERIL, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... W.A. No.1510 of 2009 .................................................................... Dated this the 19th day of September, 2011. J U D G M E N T Ramachandran Nair, J. This Writ Appeal is filed against the judgment of the learned Single Judge declining to interfere with the matter in writ proceedings but leaving it open to the petitioner to approach the Civil Court for relief. 2. We have heard Shri.K.Ramakumar, learned Senior counsel appearing for the appellant and learned Standing Counsel appearing for the IHRD. 3. The appellant was awarded contract for construction of engineering college building at Adoor by the IHRD. The contract given was for construction of the administrative block of the college building. While the case of the appellant is that work is completed and final bill is submitted, the case of the respondents is that final bill is not submitted and the W.A.No.1510/2009 2 appellant has not come for physical verification and measurement of the work for approving final bill. During hearing learned Standing Counsel for the respondent IHRD submitted that the IHRD has a counter claim against the appellant for loss caused to the IHRD in another work awarded to the appellant for construction of building for the engineering college at Chengannur. 4. After hearing both sides, we do not think the judgment of the learned Single Judge is sustainable because in the first place, the appellant need to approach civil court only if the claim is disputed by the respondents. When the appellant's claim itself is not considered by the respondent, which is a Government organisation, we feel writ of mandamus will lie against the respondents to evaluate the loss recoverable from the appellant in the work that was cancelled at appellant's risk and then to take measurement of the work executed with the participation of the appellant and to give the net amount determined by the respondents as payable to W.A.No.1510/2009 3 the appellant. If there is any surviving dispute it is for the appellant to approach civil court if there is no provision for arbitration. In the circumstances, this Writ Appeal is allowed in part by vacating the judgment of the learned Single Judge and the WP(C) is disposed of with the following directions:- (1) The concerned Engineer of the IHRD will estimate loss if any recoverable from the appellant for the work cancelled at the risk of the appellant after issuing a proposal in this regard and after hearing the appellant within a period of one month from the date of receipt of a copy of this judgment. (2) For the work executed at Adoor, the appellant will submit one more copy of the final bill and participate in the physical verification of the work by the concerned Engineer of the IHRD for determining the amount payable for the actual work executed in terms of the contract after making deductions if any for shortcomings in the work. This will also be done by making proposal and by furnishing it to the appellant for him W.A.No.1510/2009 4 to file his objections. (3) Advance payments already made can be adjusted from the amount payable. Loss if any recoverable for the cancelled work will be recovered from the above amount payable for the work executed by the appellant and balance if any will be paid to him within three months from now. If there is any surviving claim the appellant has against the respondents, the appellant is free to file civil suit or proceed with arbitration if permissible under the contract. This Writ Appeal is allowed in part as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg