Full Judgment
W.P.(C) No. 4324/2022 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 20TH DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 WP(C) NO. 4324 OF 2022 PETITIONER/S: K.V.THOMAS AGED 60 YEARS KOTHAPLAKKAL HOUSE, THELLAKOM P.O, KOTTAYAM DISTRICT PIN BY ADV GEORGEKUTTY MATHEW RESPONDENT/S: 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001 2 THE EXECUTIVE ENGINEER PWD ROAD DIVISION, KOTTAYAM PIN 686 001. BY ADV ADVOCATE GENERAL OFFICE KERALA BY SMT RESHMI.K.M, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 4324/2022 :2:
SHAJI P. CHALY, J.
--------------------------------------------------------- W.P.(C). No. 4324 of 2022 --------------------------------------------------------- Dated this the 20th day of February, 2023.
JUDGMENT
The petitioner, a PWD Contractor, has filed this writ petition seeking to quash Exhibit P1 order dated 13.01.2022 issued by the Executive Engineer, PWD Roads Division, Kottayam, 2nd respondent, imposing a fine of Rs.11,00,000/- on him towards extension of term for the completion of the work in the interest of justice; and for a further writ of mandamus directing the Executive Engineer, respondent No.2, to disburse the said amount of Rs,11,00,000/- imposed on him as fine.
2. Brief material facts for the disposal of the writ petition are as follows: The petitioner was allotted the work of providing “MSS with
Machine To Karinilam-Paschima-Kuzhimavu road, Cho/000-7/000KM under the second respondent, and the agreement was executed on 22.08.2019. The work was to be completed within a period of three months from the date of execution of the agreement. However, at the request of the petitioner, time was extended several times. According to the petitioner, it was for valid reasons which were
beyond his control, time was extended. It is further pointed out W.P.(C) No. 4324/2022 :3:
that the starting of the work was delayed for the reason of non- removal of electric posts from the work site. It is also stated that the pandemic covid-19 attributed to the delay in executing the work. It is further pointed out that there was an acute shortage of work materials during the year in question, since granite quarries were not functioning.
3. The sum and substance of the contention advanced by the
petitioner is that there was no negligence or laches on the part of the petitioner in executing the work in terms of the agreement. That apart, it is submitted that a part bill for completing 50% of the work amounting to Rs.31,01,039/- was disbursed on 13.01.2022. The memorandum of payments made to the petitioner is produced as Exhibit P1, from where it is evident that the second respondent deducted an amount of Rs.11,00,000/- towards fine on account of the extension of period of time, and after other deductions, the second respondent disbursed only Rs.17,79,471/- to the petitioner. According to the petitioner, in the facts and circumstances, imposing a fine towards extension of time is highly arbitrary and illegal and therefore, he seeks interference with the impugned
order.
4. The second respondent has filed a detailed counter affidavit refuting the allegations and claims and demands raised by W.P.(C) No. 4324/2022 :4: the petitioner and inter alia stating that the work was to be completed on 01.12.2019 as per the terms and conditions of the
agreement dated 02.09.2019. It is also admitted that there was delay in shifting of electric posts situated at the boundary of the road by the KSEB authorities and for the said reason, the time for completion of the work was extended upto 31.01.2020 without imposing any fine.
5. It is also pointed out that even after removing all the
obstructions for carrying out the work, the petitioner refused to re- start the work or take any positive steps for conducting the work. Anyhow, the time was extended from 31.01.2020 to 29.02.2020, then to 31.03.2020 and thereafter to 30.04.2020 by imposing a fine of Rs.1,00,000/- each, and again for the subsequent period, details of which would be extracted hereafter. It is also pointed out that in the application for extension of time for the completion of the contract, the petitioner has stated that the extension is sought due to the non-availability of materials and the delay in getting plant and machinery, which according to the second respondent, are not valid reasons and therefore, extension was granted only on imposition of fine.
6. According to the second respondent, the contention that there is acute shortage of materials due to the non-functioning of W.P.(C) No. 4324/2022 :5:
the granite quarry, is raised by the petitioner for the first time in the writ petition and it is only an afterthought. It is also pointed out that non-completion of the work in time affected pedestrians, vehicular traffic and local people and they raised objections and forwarded several complaints and petitions to the higher echelons, including the PWD Minister. It was in the said circumstances that the second respondent issued notice to the petitioner on 09.12.2020 to re-start the work within 5 days, and the said notice is under challenge before this Court in W.P.(C) No. 14297 of 2021.
7. Therefore, according to the second respondent, even
though the work was to be completed within three months, even after the lapse of two years, the petitioner could not complete the work. The details of the fine imposed on the petitioner is stated in the counter affidavit, and it reads as follows: 1) From 01.12.2019 to 31.01.2020 - without imposing fine 2) From 31.01.2020 to 29.02.2020 - By imposing fine of Rs.1 lakh 3) From 29.02.2020 to 31.03.2020 - By imposing fine of Rs.1 lakh 4) From 31.03.2020 to 30.04.2020 - By imposing fine of Rs.1 lakh 5) From30.04.2020 to 30.06.2020 - By imposing fine of Rs.1 lakh 6) From 30.06.2020 to 31.10.2020- By imposing fine of Rs.1 lakh 7) From 30.08.2020 to 31.10.2020 - By imposing fine of Rs.1 lakh 8) From 31.10.2020 to 30.12.2020 - By imposing fine of Rs.1 lakh 9) From 30.12.2020 to 31.03.2020 - By imposing fine of Rs.1 lakh
W.P.(C) No. 4324/2022 :6:
10) From 31.03.2021 to 30.06.2021 - By imposing fine of Rs.1 lakh 11) From 31.06.2020 to 30.09.2021 - By imposing fine of Rs.1 lakh 12) From 30.09.2021 to 10.11.2021 - By imposing fine of Rs.1 lakh
With the above contentions, the second respondent justified his action of imposing fine, since in spite of earnest efforts made by the second respondent, the petitioner was unable to complete the work and there was negligence and lapses on the part of the petitioner.
8. I have heard the learned counsel for the petitioner Sri. Goergekutty Mathew and the learned Senior Government Pleader Reshmi K.M., and perused the pleadings and materials on record.
9. The sole question to be considered is whether any manner
of interference is required to the fine imposed on the petitioner in the peculiar facts and circumstances of the case. It is an admitted fact that the petitioner had to complete the work within three months from the date of execution of the agreement. Even according to the petitioner, the work was not completed within the agreed period. The date of completion of the work is much before the pandemic covid-19 situation.
10. Anyhow, taking note of the fact that the Kerala State Electricity Board failed to remove the electric posts in time, the time was extended upto 31.01.2020. The said date was also before the W.P.(C) No. 4324/2022 :7: lock-down restrictions made by the Central and State Governments due to the pandemic covid-19 situation. The lock-down was implemented by the Central and State Governments with effect
from 23.03.2020. Therefore, it can be seen that the petitioner could not complete the work, in spite of getting sufficient time before the lock-down restrictions.
11. Be that as it may, it was on the request made by the
petitioner that time was extended by the second respondent by imposing fine, having found that no justifiable reasons are assigned by the petitioner for the extension of time without imposing fine. It is also equally significant to note that the contentions raised in the writ petition were not raised by the petitioner at any point of time before the second respondent. Even though the petitioner has raised a contention that there was shortage of materials to carry out the work, he has not established the same with any reliable evidence before this Court .
12. Even though the petitioner has relied upon Exhibit P2
Government Order dated 31.07.2021, whereby due to the lock- down restrictions, the time for completing the work was extended by the Government, I am of the opinion that the petitioner is not entitled to get the benefit of the same, since the said order itself was passed almost more than 1 ½ years from the date of W.P.(C) No. 4324/2022 :8: completion of the work originally agreed upon by the petitioner.
13. That apart, the petitioner was guided by the terms and
conditions of the contract, and when the agreement contained a specific condition for extension of time by imposing a fine, the petitioner was liable to pay fine. He was responsible for the non- completion of the work in time, in spite of the extension of the time without imposing a fine. In a contract, when the proposal made by the authority was accepted by the petitioner, it is a reciprocal promise and the petitioner was duty bound to carry out the contract in terms of the agreement executed by and between the parties.
14. The petitioner does not have a case that the second
respondent was, in any manner, responsible for the delay in the work. It is true, the petitioner had a contention that the work was delayed due to the non-removal of the electric posts by the Kerala
State Electricity Board. But, it is an admitted fact that on that count, time was extended by a month i.e., upto 31.01.2020. Therefore, in my considered opinion, when the terms and conditions of the contract was certain and that the petitioner had to complete the work before the lock-down restrictions due to pandemic covid- 19, the petitioner cannot bank upon the restrictions imposed by the Central and State Governments due to the pandemic covid-19.
15. To put it otherwise, the petitioner was obligated to W.P.(C) No. 4324/2022 :9: perform the contract in terms of the agreement executed by and
between the parties. Once a contract is entered into by and between the parties, the parties are duty bound to discharge the obligations undertaken in the agreement and the contract is to be performed in the manner agreed upon by the parties. It is a clear term of the contract that the work was to be completed within three months from the date of execution of the agreement. However, the second respondent realized that since the work could not be started due to the delay on the part of the Electricity Board to remove the electric posts, he was duty bound to extend the period, since there
were no lapses or laches on the part of the petitioner. Once the time was extended, the petitioner was duty bound to carry out the contract within the extended period, since the second respondent has already mitigated the circumstances taking into account the fact that there was lapses on the part of the Board officials. The petitioner could not complete the work and assigning various reasons, he sought extension of time. He could not establish any authentic and convincing circumstances by which the performance of the contract has become impossible to act, which alone is a possible ground that could have been raised by the petitioner for non execution of the contract within the time period provided as per the agreement by and between the parties. W.P.(C) No. 4324/2022 : 10 :
16. In the facts and circumstances and taking into account
the contractual obligations by and between the parties, I do not think, the petitioner has made out any case of arbitrariness or illegality or any other legal infirmities justifying this Court to interfere in the action of the second respondent in a proceeding under Article 226 of the Constitution of India.
Needless to say, writ petition fails and accordingly, it is dismissed. sd/- SHAJI P. CHALY, JUDGE. Rv W.P.(C) No. 4324/2022 : 11 : APPENDIX OF WP(C) 4324/2022 PETITIONER’S EXHIBITS: Exhibit P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE MEMORANDUM OF PAYMENTS DATED 13-01-2022 ISSUED BY THE 2ND RESPONDENT Exhibit P2 TRUE COPY OF THE ORDER BEARING GO(RT) NO. PERIOD OF WORKS UNDER THE LOCAL SELF GOVERNMENT DEPARTMENT. RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge. rv