Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 1ST DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 PETITIONER: M/S PERFECT ENGINEERS AND CONTRACTORS, REPRESENTED BY ITS PARTNER, M.SAJEEVAN, EJ 39/1198/PMC, ROBINSON ROAD, PALAKKAD-678014. BY ADVS. G.SIVASANKAR SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR SRI.G.P.SHINOD RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY, PWD DEPARTMENT, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695001. 2 CHIEF ENGINEER(BUILDINGS), PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE BUILDING, VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033. 3 SUPERINTENDING ENGINEER, O/O.THE SUPERINTENDING ENGINEER, BUILDINGS NORTH CIRCLE, KOZHIKODE-673020. 4 EXECUTIVE ENGINEER, PWD BUILDINGS DIVISION, PALAKKAD-678014. SRI.K.V.MANOJ KUMAR, SR.G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
JUDGMENT
The petitioner, which is stated to be a Firm
registered under Section 58(i) of the Indian Partnership Act, 1932, says that they have completed construction of ‘Boys’ and ‘Girls
Hostels’ under a contract awarded to them by the 3rd respondent - Superintending Engineer of the Public Works Department(PWD); and therefore, that they are entitled to the incentive which has been ordered through Exts.P9 and P10 Circulars.
2. The petitioner alleges that, however, the aforesaid incentive has been rejected by the PWD, through Exts.P11 and P12, merely saying
that application for such had not been made within time; and thus pray that said orders be set aside, and the Authorities be directed to disburse the eligible incentive to them, within a time frame to be fixed by this Court. -3-
3. Smt.Gayathri S. - learned counsel for
the petitioner, vehemently argued against Exts.P11 and P12, saying that, even though it is stated therein that ‘Report of Completion’ had not been preferred within time, it has been so
indited without adverting to Exts.P9 and P10 Circulars, which were issued on 26.06.2018 and 07.05.2019. She pointed out that her client had completed the work in the year 2017; while, Exts.P9 and P10 came after that, with the second of them extending the time frame for making application for a period of 10 days from the date of completion of the construction.
4. Smt.Gayathri S., then affirmed that her
client had preferred the application for incentive on 07.08.2019, which is immediately after they became aware of Exts.P9 and P10
Circulars; and hence that it could not have been rejected through Exts.P11 and P12, saying that -4- it was not made within the time frame mentioned in Ext.P10. She argued that this has been done without proper application of mind because, as per Ext.P10, the request for incentive ought to have been made within 10 days of completion of the construction; but that, in the case at hand, the construction was completed on 03.04.2017. She thus prayed that Exts.P11 and P12 be set aside and the competent Authority be directed to reconsider her client's application for incentive, within a time frame to be fixed by this Court.
5. Sri.K.V.Manoj Kumar - learned Senior Government Pleader, in response, submitted that Exts.P11 and P12 are irreproachable because they have gone strictly by the stipulations in Ext.P9
Circular, modified by Ext.P10 Circular. He argued that, when the Circulars mandate that an application for incentive should be made within -5- a period of 10 days from the date of completion of the construction, there can be no relaxation in any individual cases. He thus prayed that this writ petition be dismissed.
6. I am afraid that I cannot find favour with the afore submissions of the learned Senior Government Pleader because, as rightly argued by Smt.Gayathri S., Ext.P10 mandates that an application for incentive should be made within a period of 10 days of completion of the work. In this case, completion of the work was, admittedly, in April, 2017; while Exts.P9 and
P10 Circulars came a year and two months thereafter. Obviously, therefore, the petitioner cannot be found fault with not having complied with the time frame in Ext.P10 for seeking an incentive with respect to a work that was completed even prior to issuance of Exts.P9 and P10. -6- In the afore circumstances, I order this writ petition and set aside Exts.P11 and P12; with a consequential direction to the competent Authority of the PWD to reconsider the claim of the petitioner in terms of Exts.P9 and P10 Circulars and after affording them an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. I make it clear that, if incentive is found eligible to the petitioner through the afore exercise, then it shall be disbursed to them within a period of two months thereafter. Sd/- DEVAN RAMACHANDRAN JUDGE akv -7- APPENDIX OF WP(C) 3652/2020 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE TENDER NOTICE NO.DB1/TN/155/2014-15 DATED 09.10.2014 WITH RESPECT TO THE CONSTRUCTION OF GIRLS HOSTEL ISSUED BY THE 3RD RESPONDENT ON BEHALF OF THE 1ST RESPONDENT EXHIBIT P2 THE TRUE COPY OF THE TENDER NOTICE NO.DB1/TN/153/2014-15 DATED 09.10.2014 WITH RESPECT TO THE CONSTRUCTION OF GIRLS HOSTEL ISSUED BY THE 3RD RESPONDENT ON BEHALF OF THE 1ST RESPONDENT EXHIBIT P3 THE TRUE COPY OF THE ACKNOWLEDGMENT FORMS DATED 03.02.2015 ISSUED BY THE ASSISTANT ENGINEER EXHIBIT P4 THE TRUE COPY OF THE ACKNOWLEDGMENT FORMS 07.04.2015 ISSUED BY THE ASSISTANT ENGINEER EXHIBIT P5 THE TRUE COPY OF THE LETTER ISSUED BY THE PUBLIC WORKS DEPARTMENT DATED 24.03.2015 ALON WITH AGREEMENT NO.SE(K)49/2014-2015 DATED 24.03.2015 EXHIBIT P6 THE TRUE COPY OF THE LETTER NO.DB6/31682014 DATED 12.05.2015 ALONG WITH AGREEMENT NOSE(K) 10 OF 2015-2016 DATED 12.05.2015 EXHIBIT P7 THE TRUE COPY OF THE CERTIFICATE OF COMPLETION OF THE WORK DATED 16.05.2019 FOR THE CONSTRUCTION OF GIRLS HOSTEL OF GOVERNMENT MEDICAL COLLEGE, PALAKKAD -8- EXHIBIT P8 THE TRUE COPY OF THE CERTIFICATE OF COMPLETION OF THE WORK DATED 16.05.2019 WITH RESPECT OF BOYS HOSTEL OF GOVERNMENT MEDICAL COLLEGE, PALAKKAD
EXHIBIT P9 THE TRUE COPY OF THE CIRCULAR NO.CE/BL/HC/GL/A1/142/2018 DATED 26.06.2018 EXHIBIT P10 THE TRUE COPY OF THE CIRCULAR NO.CE/BL/HC/GL/A1/142/2018 DATED 07.05.2019 EXHIBIT P11 THE TRUE COPY OF THE LETTER NO.CE/BL/PLKD/5996/2014 DATED 27.11.2019 EXHIBIT P12 THE TRUE COPY OF THE LETTER NO.CE/BL/PLKD/6000/2014 DATED 27.11.2019