IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HON'BLE MR. JUSTICE S. SIRI JAGAN. THURSDAY, THE 4TH SEPTEMBER, 2008/13TH BHADRA, 1930 W.P(C) NO. 9379 OF 2005 ------------------------ PETITIONER: ----------- K. BABURAJ, GOVT. CONTRACTOR, NARAYANA MANDIRAM, OORAMANA (PO), MUVATTUPUZHA. BY ADV SRI. T.K.M. UNNITHAN. RESPONDENTS: ----------- 1. RAMAMANGALAM GRAMA PANCHAYAT, REP. BY THE SECRETARY, RAMAMANGALAM GRAMA PANCHAYAT, RAMAMANGALAM, MUVATTUPUZHA TALUK, ERNAKULAM. 2. THE SECRETARY, RAMAMANGALAM GRAMA PANCHAYAT, DO. DO. BY ADV. SRI. ALEXANDER JOSEPH THE WRIT PETITION HAVING BEEIN FINALLY HEARD ON 4/9/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 9379/2008. ------------------------------------------ EXT.P1 TENDER NOTICE DT. 4-11-2004. EXT.P2 AGREEMENT DT. 25-11-2004. EXT.P3 AUTHORISATION LETTER DT. 17-1-2005. EXT.P4 INVOICE DT. 19-1-2005. EXT.P5 CERTIFICATE DT. 17-1-2005. EXT.P6 COMPLETION CERTIFICATE DT. 27-1-2005. EXT.P7 LAWYER NOTICE DT. 24-2-2005. EXT.P8 AUTHORISATION LETTER DT. 17-1-2005. EXT.P9 RESOLUTION DT. 20-1-2005. EXT.P10 DO. DT. 9-2-2005. EXT.P11 ABSTRACT OF ORIGIAL AND REVISED ESTIMATE. EXT.P12 INVOICE DT. 11-1-2005. EXT.P13 DEMAND DRAFT DT. 17-1-2005. EXT.P14 LETTER DT. 8-2-2005. EXT.P15 GOVT. ORDER DT. 19-8-1997. RESPONDENTS' EXHIBITS: ------------------------ EXT.R2(a) REPLY NOTICE DT. 15-3-2005. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 9379 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 4th September, 2008. J U D G M E N T The petitioner is a contractor who undertook certain repair works in respect of Sivalay Rekshasyna road on behalf of Ramamangalam Grama Panchayat, the 1st respondent herein, pursuant to Ext. P1 notification inviting tenders. The petitioner was the successful tenderer. The petitioner is aggrieved by non-payment of certain amounts due to the petitioner in respect of the said contract. The issue relates to reimbursement of charges for bitumen purchased by the petitioner from the Cochin Refineries Ltd., for the work in question. According to the petitioner, an amount of Rs. 42,706/- remains to be paid. The petitioner contends that as provided in Ext. P1 notification inviting tenders itself, all terms and conditions in respect of tenders of the Kerala Public Works Department would be applicable to the tender in question. The case of the petitioner is that as per Ext. P15 Government Order relating to PWD contracts where use of bitumen is involved in construction of any work, the same would be supplied departmentally. If the department is unable to supply the same, the contractor would be bound to purchase the same from open market and complete the works as per the time schedule fixed. In such cases, he will be paid the market price of the materials and conveyance charges at market rates. Therefore, according to the petitioner, the petitioner is liable to get reimbursement from the respondents the value of bitumen purchased by the petitioner for an amount of Rs. 79,730/- for the purpose of the work. However, an amount of Rs. 42,706/- was not reimbursed to the petitioner on that count. The petitioner therefore seeks the following reliefs: “a) Issue a writ of mandamus or other appropriate writ, direction or order commanding the respondents to pay the balance amount of Rs. 42,706/- from out of the total cost of the 35 barrels of bitumen viz Rs. 79,730/- without any further delay. W.P.C. No. 9379/05 -: 2 :- b) a writ of mandamus or other appropriate writ, direction or order directing the respondents to pay 12% interest on the amount of Rs. 42,706/- from 24-2-2005 date of notice till the date of payment.” 2. Learned counsel for the respondents would submit that the petitioner is not entitled to that amount. According to him, the rate quoted by the petitioner was per square feet and that would include the cost of bitumen also and he is not entitled to separate reimbursement of the cost of bitumen. He therefore disputes the claim of the petitioner. 3. I have considered the rival contentions in detail. 4. A reading of Ext. P1 would show that tender is subject to the terms and conditions applicable in respect of PWD contracts. Ext. P15 is an order passed by the Government of Kerala in respect of PWD contracts. The same categorically stipulates that where bitumen is used in contracts, the same would be supplied departmentally and if the same is not available in department, the concerned contractor would be bound by the agreement to purchase the same from open market and complete the works as per the time schedule fixed, in which case the contractor would be paid the market price of the materials with conveyance charges. It is not disputed before me that the petitioner has in fact used bitumen worth Rs. 79,730/- for execution of the contract purchased from Kochi Refineries Ltd. On a reading of Ext. P1 together with Ext. P15, it is clear that in such cases, the cost of bitumen is to be reimbursed to the contractor. The respondents being bound by Ext. P1 read with Ext. P15, they cannot now wriggle out of the liability to pay the cost price of the bitumen purchased by the petitioner from the open market and used in the work. The petitioner has sufficiently proved that the value of bitumen purchased by him is Rs. 79,730/-. Out of the same, he is yet to W.P.C. No. 9379/05 -: 3 :- receive Rs. 42,706/-. In view of my above findings, the petitioner is entitled to payment of that amount by the respondents. Accordingly, the respondents are directed to pay to the petitioner the said amount of Rs. 42,706/- as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/