IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WP(C).No. 5599 of 2010(Y) ------------------------------------ PETITIONER(S): ---------------------- K.K.SUNIL KUMAR, GOVERNMENT CONTRACTOR, 'UDHYANAM', CHANGANKULANGARA, OACHIRA P.O.,KOLLAM. BY SRI. N.N. SUGUNAPALAN (SR.) ADV. SRI.R.GOPAN SMT.T.V.HEMALATHA RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY,FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. P.S.SREEKUMAR, ADDITIONAL SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 5. THE SUPERINTENDING ENGINEER, OFFICE OF THE SUPERINTENDING ENGINEER,BUILDING SOUTH CIRCLE, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 6. THE EXECUTIVE ENGINEER,OFFICE OF EXECUTIVE ENGINEER, PWD BUILDINGS DIVISION, KOLLAM. BY GOVERNMENT PLEADER SRI. SANJEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS WPC.NO. 5599/2010 APPENDIX PETITIONERS EXHIBITS: P1: COPY OF THE SELECTION NOTICE NO. BSC/2537/07/D1 DATED 13.2.2008. P2: COPY OF THE AGREEMENT DATED 15.2.2008 EXECUTED BY THE PETITIONER. P3: COPY OF THE WORK ORDER NO. D5.2926/08 DATED 3.5.2008. P4: COPY OF THE G.O. NO. 84/97/PW&T DATED 19.8.1997 ISSUED BY PWD DEPARTMENT. P5: COPY OF THE LETTER NO. D5-2926/2005 DATED 20.6.2008 SENT BY 6TH RESPONDENT TO 4TH RESPONDENT. P6: COPY OF THE ACKNOWLEDGEMENT FORM OF HANDING OVER THE SITE GIVEN BY PETITIONER TO ASSISTANT ENGINEER. P7: COPY OF THE INTIMATION RECEIVED VIDE PB (4) 18550/2007/DES DATED 23.10.2007. P8: COPY OF THE REPRESENTATION DATED 20.5.2008 SUBMITTTEDBY THE PETITIONER. P9: COPY OF THE REPRESENTATION SENT TO 4TH RESPONDENT BY THE PETITIONER DATED 20.5.2008. P10: COPY OF THE REPRESENTATION DATED 26.6.2008 SUBMITTTEDBY THE PETITIONER BEFORE THE RESPONDENT. P11: COPY OF THE JUDGMENT DATED 14.7.2008 PASSED BY THIS HONOURABLE COURT IN W.P. ( C ) NO. 21180/08. P12: COPY OF THE AFFIDAVIT DATED 10.11.2008 FILED BY THE PETITIONER BEFORE THE SECRETARY TO GOVERNMENT. P13: COPY OF THE ACKNOWLEDGEMENT OF HANDING OVER OF THE SITE DATED 1.9.2008. P14: COPY OF THE G.O (RT) NO. 1530/2008/PWD DATED 10.9.2008. P15: COPY OF THE G.O. (RT) NO. 1532/2008/PWD DATED 15.9.2008. P16: COPY OF THE G.O. (RT) NO. 1573/2008/PWD DATED 20.9.2008. P17: COPY OF THE G.O.(RT) NO.1665/2003/PWD DATED 29.9.2008. P18: COPY OF THE G.O.(RT) NO. 1649/2003/PWD DATED 2.9.2008. P19: COPY OF THE G.O. (RT) NO. 1497/2008/PWD DATED 2.9.2008. P20: COPY OF THE PROJECT STATUS OF AYIRMTHENGU AZHEECKAL BRIDGE IN KOLLAM DISTIRCT SENT BY THE 6TH RESPONDENT. 2/- -2- WPC.NO. 5599/2010 P21: COPY OF THE LETTER DATED 29.10.2008 SENT BY THE INFORMATION OFFICER TO THE PETITIONER. P22: COPY OF THE PROCEEDINGS OF THE 6TH RESPONDENT DATED 15.3.2005 ON THE APPLICATION OF CONTRACTOR CHERIAN VARKEY. P23: COPY OF THE ORDER NO. G.O. (RT) NO. 2008/2008/PWD DATED 29.11.2008 PASSED BY THE 1ST RESPONDENT. P24: COPY OF THE JUDGMENT DATED 29.9.2009 IN W.P. ( C)NO. 36900/2008 PASSED BY THIS HONOURABLE COURT. P25: COPY OF THE ADDITIONAL AFFIDAVIT DATED 5.10.2009 FILED BY THE PETITIONER BEFORE THE PRINCIPAL SECRETARY, PWD DEPT. P26: COPY OF THE RELEVANT PORTION OF THE PROCEEDINGS OF HEARING DATED 11.11.2009 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. P27: COPY OF THE ORDER DATED 22.1.2010 ISSUED BY 3RD RESPONDENT. P28: COPY OF THE LETTER DATED 30.9.2008 SENT BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT. P29: COPY OF THE MINUTES OF THE TENDER COMMITTEE DATED 19.12.2008 ISSUED TO THE PETITIONER ON APPLICATION UNDER RIGHT TO INFORMATION ACT. P30: COPY OF THE LETTER HANDING OVER THE SITE DATED 11.4.2008 ISSUED BY THE DIRECTOR, PRINTING DEPARTMENT TO P31: COPY OF THE ORDER DATED 30.1.2010 ISSUED BY THE 1ST RESPONDENT. P32: COPY OF THE ORDER DATED 6.1.2010 ISSUED BY THE 1ST RESPONDENT. P33: COPY OF THE ORDER DATED 15.6.2005 ISSUED BY THE 1ST RESPONDENT. P34: COPY OF THE ORDER DATED 8.1.2010 ISSUED BY THE 1ST RESPONDENT. P35: COPY OF THE ORDER DATED 14.8.2008 ISSUED BY THE 1ST RESPONDENT. P36: COPY OF THE ORDER DATED 8.8.2008 ISSUED BY THE 1ST RESPONDENT. P37: COPY OF THE LETTER DATED 4.3.2010 ISSUED BY THE PUBLIC INFORMATION OFFICER TO THE PETITIONER DATED 4.3.2010. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE G.O.(RT)NO.127/08/PWD DATED 30/01/2008. /TRUE COPY/ P.A.TO.JUDGE AS ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 5599 of 2010 Y ``````````````````````````````````````````````````````````` Dated this the 28th day of November, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ On 15.09.2007, respondents issued a notification inviting tenders for the construction of Government Press and Training Centre at Umayanalloor in Kollam district. Petitioner, a contractor, submitted his tender and his bid quoting 19% above the estimated rate was accepted and accordingly, Ext.P2 agreement dated 15.02.2008 was entered into between the parties. Though belatedly, he was issued Ext.P3 work order on 03.05.2008 and the site was handed over by Ext.P13 dated 01.09.2008. Thereupon, the petitioner commenced the work on that basis and in the meanwhile, in April, 2008, the schedule of rates were revised and petitioner submitted Exts.P8 to P10 representations requesting for the benefit of rate revision. He was not given any reply and, therefore, he filed W.P.(C) No.21180/2008 before this Court. That writ petition was W.P.(C) No.5599/2010 : 2 : disposed of by Ext.P11 judgment directing consideration of the representations. However, his claim was rejected by Ext.P23 order. 2. Ext.P23 order was again challenged before this Court in W.P.(C) No.36900/2008. This writ petition was disposed of by Ext.P24 judgment once again directing reconsideration of the matter. Immediately thereafter, petitioner filed Ext.P25 representation. Accordingly, petitioner was heard and his claim was again rejected by Ext.P27 order. It is challenging Ext.P27 and also requiring the respondents to give him the benefits of revision, the writ petition is filed. 3. Contention raised by the Senior Counsel for the petitioner is that the impugned order has been issued in violation of the directions in Ext.24 judgment and also ignoring Exts.P26 and P28, the recommendations in his favour. 4. On the other hand, referring to the counter affidavit filed by the respondents, learned Government Pleader contended that Ext.P27 order was issued considering the fact W.P.(C) No.5599/2010 : 3 : that the contract in question was a fixed rate contract and that Exts.P26 and P28 were only recommendations which are not binding on the Government. It was also contended that the other cases where rate enhancement was given, which were pointed out by the petitioner, were also factually different from the case of the petitioner and, therefore, were incomparable. 5. I have considered the submissions made by both sides. 6. On rejection of his claim by Ext.P23, petitioner filed W.P.(C) No.36900/2008 before this Court. In that case, petitioner had produced the recommendation of the Tender Committee, wherein his request for rate enhancement was recommended. He had also produced Exts.P19 and P22 therein, where benefit of revision of rates was allowed by the Government. It was referring to those documents and also having regard to the fact that Ext.P23 order was issued without considering these documents, this Court quashed Ext.P23 and directed reconsideration of the matter. The W.P.(C) No.5599/2010 : 4 : operative portion of the judgment reads thus:- “Accordingly, I set aside Ext.P23 and direct the 1st respondent to reconsider the claim of the petitioner urged by him in Ext.P8 representation in the light of Ext.P12 affidavit and Exts.P19, P22 & P25 referred to above. This shall be done with notice to the petitioner as expeditiously as possible, at any rate, within three months of production of a copy of this judgment.” 7. After the judgment was rendered, petitioner filed Ext.P25 representation. Accordingly, he was heard on 11.11.2009 and Ext.P26 is the minutes of such hearing and the recommendation in the matter. In Ext.P26, the Additional Secretary to Government, Sri.P.S.Sreekumar, who is the signatory to Ext.P27 also, made the following recommendations:- “11. On perusal of the documents it is seen that the tender was on 15.9.07, selection notice issued on 13.7.08 and agreement executed on 15.2.08 and the work W.P.(C) No.5599/2010 : 5 : order was issued on 3.5.08 but as agreed by the Executive Engineer, PWD (R&B), Kollam the site was fully handed over for building works only on 1.9.08. Since there was default on the part of the Department to hand over hazzle free work site extension of time up to 30.8.10 was given to the petitioner without fine. The petitioner’s claim is that he is not responsible for the default in handing over site for work. Further he argued that it was the liability of PWD to hand over work site hazzle free. It was also found that there were 9 trees standing at the building site. The formalities of auction of trees was completed and all the 9 trees were cut and removed fully only on 18.8.08. As such the Department could had over the site to the petitioner only on 1.9.08. Meanwhile the new SOR came into effect on 1.4.08 and there was also price escalation for materials in the market. If the above work is retendered there is no scope for any better one since the present contract is based on W.P.(C) No.5599/2010 : 6 : 2007 SOR. The request of the contractor in the hearing was to give an enhanced rate of 65% above SOR 2007. 12. Considering all the above facts, a rate enhancement at the rate of 35% above estimate rate of 2007 SOR may be granted to the petitioner and thereby comply the High Court dated 29.9.2009. 13. If agreed, the Finance Department may be requested to agree to the proposal in view of the judgment of the High Court to reconsider the earlier decision of the Government in view of the enhancement granted by the State Government as per Exts.P14, P15, P16, P17, P18, P19 etc. 14. File may be circulated to Minister(Works) for orders.” 8. From the above, it can be seen that the Additional Secretary has recommended the enhancement at the rate of 35% above the estimated rate of 2007 Schedule of Rates. It is seen from this document that the aforesaid proposal was W.P.(C) No.5599/2010 : 7 : agreed to by the then Principal Secretary to Government, Public Works Department, who has affixed signature on 02.12.2009. This proposal was also agreed to by the then Minister for Works who has affixed his signature on 08.12.2009. It is in spite of all these, that the Additional Secretary to Government who originated the proposal evidenced by Ext.P26 himself has issued Ext.P27 order dated 22.01.2010, rejecting the petitioner’s claim in the following terms:- “5. In view of the facts that the rate enhancement is in violation of agreement conditions, no enhancement of agreed rate can be allowed. If the enhancement is sanctioned for one work, may similar cases are likely to crop up. Hence Government hereby order to reject the request of the contractor. If the contractor is not willing to take up the work at the accepted rate the Chief Engineer Buildings and Local Works will make arrangements to terminate the contract and rearrange the work.” W.P.(C) No.5599/2010 : 8 : 9. Neither in the counter affidavit nor in Ext.P27 is there any statement that the Finance Department had disagreed to the proposal as contained in Ext.P26. Going by the recommendation in Ext.P26, if the proposal has not been disagreed by the Finance Department, since the proposal has been approved by the Principal Secretary to Government and the Minister himself, the resultant order could not have been inconsistent with the proposal therein. 10. Further, on the materials now available before this Court, the rejection of the petitioner’s claim is also on irrelevant grounds. I say so for the reason that the only reason stated in Ext.P27 is that the rate enhancement sought by the petitioner is in violation of the agreement conditions. First of all, it was despite the agreement conditions, that in Ext.P26 rate revision was agreed to. Secondly, despite the agreement conditions, rate revision has been given to in similar cases, details of which are mentioned in paragraph 9 of Ext.P26 itself. For the reasons, Ext.P27 cannot be W.P.(C) No.5599/2010 : 9 : sustained and in such circumstances, I quash Ext.P27. 11. However, in view of the dearth of materials regarding the view taken by the Finance Department on Ext.P26, I direct that on receipt of a copy of this judgment, the first respondent will consider the matter afresh and if the Finance Department has not disagreed to the proposal in Ext.P26, it is directed that the petitioner shall be given the benefit of the proposal contained in Ext.P26. The matter shall be re-examined and necessary orders shall be issued, at any rate, within six weeks from the date of production of a copy of this judgment. Writ petition is disposed of as above. Sd/- (ANTONY DOMINIC, JUDGE) aks/30/11 // True Copy // P.A. To Judge