IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 W.P(C).No. 4905 of 2008(H) --------------------------------- PETITIONER: -------------- MATHEWKUNJU MATHEW, GOVERNMENT CONTRACTOR, PADINJAREPARAMBIL, THOTTAKKADU P.O., KOTTAYAM DISTRICT. BY ADV. SRI.BOBBY MATHEW KOOTHATTUKULAM RESPONDENTS: ----------------- 1. THE KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM-695033. 2. THE SUPERINTENDING ENGINEER, P.H. CIRCLE, KERALA WATER AUTHORITY, MUVATTUPUZHA. BY ADV. SRI. M. DINESH, SC FOR KWA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 4905 OF 2008 H ==================== Dated this the 22ndday of February, 2008 J U D G M E N T The challenge in this writ petition is against Ext.P25. The petitioner also seeks a direction to the 2nd respondent to extend the period of contract by executing the supplemental agreement for carrying out and completing Ext.P21 contract work. Other consequential reliefs are also sought for. 2. Petitioner is a contractor, who had entered into a contract with the respondents, which is produced as Ext.P1, executed on 27/2/2001 for the construction of an intake well for the purpose of a treatment plant. In terms of the contract, the work ought to have been completed on 11/8/02. It is stated that on three occasions, the time for completion was extended levying penalty. It is stated that in October 2003, 3rd respondent cancelled the contract and that order was set aside in November, 2003. Again as there was no progress, it is stated that notice of termination was issued in 2004 and that was also cancelled. WPC 4905/08 :2 : 3. It appears that there was a change of site of the work and that is seen reflected in Exts.P3 and P4 reports of the Technical Committee. According to the petitioner, since it was not possible for him to continue the work, he submitted his claims by Ext.P5. But, however, payments were not made. Though the work was again terminated on 8/11/2006, by Ext.P6 proceedings of the Managing Director, he cancelled the termination and directed the petitioner to complete the work by 30/6/07. 4. Though communications were exchanged between the parties for a supplemental agreement, such an agreement was not executed and in the meantime by Ext.P13, the Managing Director issued orders to the 2nd respondent to extend the period of the completion of the contract. It is stated that based on such an understanding by Ext.P15, the petitioner has agreed to resume the work on 24/11/2007. Thereupon the 2nd respondent issued Ext.P16 extending the contract period upto 31/3/2008. Pursuant to these developments, the petitioner entered into Ext.P21 supplemental agreement and took over the site on 26/12/2007. According to the petitioner, though he resumed work, the contract was terminated by Ext.P25 issued on WPC 4905/08 :3 : 30/1/2008 and it is in this background this writ petition has been filed challenging Ext.P25 and directing the respondents to issue orders enabling him to complete the work. 5. I heard the standing counsel who appeared on behalf of the respondents. The submission of the learned standing counsel is that although the agreement was of 2001 and it required the petitioner to complete the work by 11/8/2002, even as on date, the work admittedly remains incomplete. It is stated that even after Ext.P21 agreement was signed and the petitioner took over the site on 26/12/2007, there has not been any progress in the matter. According to the learned standing counsel, in terms of the provisions of the supplemental agreement, inspection was conducted and it was found that there was no progress in the work and it was therefore that the contract was terminated by Ext.P25. It is stated that the treatment plant is ready for commissioning, but could not be commissioned on account of the fact that the work relating to the intake well has not been completed. It is stated that the delay in completion of the well has affected major water supply schemes affecting lakhs of rupees and causing huge loss to the public. WPC 4905/08 :4 : 6. Though the petitioner is accusing the respondents for his inability in completing the work, the fact remains that a project which ought to have been completed on 11/8/02 remains incomplete even at this distance of time. Facts pleaded shows that before October 2003, thrice period of completion was extended and subsequently on more than three occasions though either notice of termination or even order of termination was issued, all those were cancelled. It is also on record that following Ext.P21 supplemental agreement, petitioner took over the site on 26/12/2007 and even thereafter the work remains incomplete. 7. Petitioner submits that the change in site mentioned in Exts.P3 and P4 was responsible for the delay. It is also pointed out that his request made in Ext.P22 were not heeded to and all these have contributed to the delay. I am not in a position to appreciate these contentions, for the reason that Ext.P21 agreement is not subject to any conditions. In this supplemental agreement petitioner has undertaken to complete the work and this obligation did not require anything to be done from the side of the awarder to justify the default on the part of the contractor. WPC 4905/08 :5 : 8. Petitioner complains that he has not been put on notice before termination was effected by Ext.P25. Here again, a reading of Clause 4 of the agreement shows that if the contractor cannot achieve sufficient progress of work on the first 7 days from the date of acceptance of the site, the respondents have the freedom to terminate the work and to rearrange the same at the risk and cost of the contractor. Ext.P25 shows that site was inspected by the respondents and according to them progress was unsatisfactory. If that be so, I do not think that the absence of notice by itself will vitiate Ext.P25. That apart, writ petition does not contain any pleading as to how by absence of notice petitioner has been prejudiced. The background explained in Ext.P25 shows the following: A personal hearing was held in the chamber of the Managing Director on 26/10/2007 with Sri.Mathew Kunju Mathew to sort out the matter and decided to give one more chance to the contractor for completing the work as per reference (6) with specific direction to watch the progress of the work during the first week of handing over the site to the contractor and if the progress of the work is not satisfactory the work will be terminated. To enable the contractor to resume the work as directed by the Managing Director, time extension was granted upto 31/3/2008 and supplementary agreement WPC 4905/08 :6 : was executed on 17/12/2007. The contractor took over the site on 26/12/2007. The site was inspected by the Superintending Engineer with subordinate officers on 10/1/2008 and convinced that there is no satisfactory progress of the work and directed Executive Engineer to reassess the progress of the work and report after one week. On 22/1/2008, the site was inspected by the Hon'ble Minister of PWD, Sri.Mons Joseph, Hon'ble MLA of Vaikom Constituency Sri.Ajith, with the Superintending Engineer, concerned Executive Engineer, Asst.Executive Engineer, Assistant Engineer and other supporting staff. The contractor Sri.Mathew Kunju Mathew also present at the site. The Minister, MLA and Panchayat Presidents informed their dissatisfaction in the progress of the work. The contractor who was present on the occasion claimed that he has done a lot of works during the small period and the pumping works for dewatering was also going on. The Minister and other people representatives and officers personally found that his arguments are totally against the facts and they unanimously opined that there is no solution other than terminating the work. The 45 MLD Treatment Plant is ready for commissioning for want of water and power. This well is the single source of 5 schemes ie ARWSS to Veliyannoor and adjoining villages Phase I, II, III, ARWSS to Kallara and Augmentation of Vaikom and adjoining Panchayats. Almost all the components were completed except this intake well. Due to the delay of completion of this well, these major schemes could not be commissioned denying drinking water to lakhs of rural people and huge loss to the public. The beneficiary panchayats and Vaikom Municipality have intrusion of saline water and acute scarcity of drinking water. About 7 years expired after executing agreement, only 40% WPC 4905/08 :7 : completed and the work was terminated 2 times earlier. As per ref.(6), a last chance was given to the contractor and the contractor failed to achieve enough progress in the stipulated time. The contractor is not capable to complete the work and Kerala Water Authority has to seek other alternative to complete the well. Hence considering the above facts and findings and also taking into consideration the reasons for two termination orders which were issued earlier as per reference (2) and due to the non-progress of the work, there is no other option other than terminating and re- arranging the work based on the order under reference (7) and agreement conditions. Under these circumstances, as directed by the Managing Director and as per the agreement conditions, the Contract Agreement for subject work with Sri.Mathew Kunju Mathew, Padinjareparambil, Thottakkad P.O, Kottayam is hereby terminated and the work will be rearranged at the risk and cost of Sri.Mathew Kunju Mathew who is the original contractor of this work. In the light of the aforesaid factual sanction as contained in Ext.P25, I do not find any irregularity in the steps taken by the respondents. Writ petition is dismissed. ANTONY DOMINIC,JUDGE. Rp