Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 4TH DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 PETITIONER: G.V.DAVIS AGED 65 YEARS S/O. G.O VARGHESE GOPURATHINGAL HOUSE, KARUKUTTY, ANGAMALY P.O, ERNAKULAM DISTRICT., PIN - 683576 BY ADVS. V.RAJENDRAN (PERUMBAVOOR) N.RAJESH GOPAKUMAR P. JERRY JAISON RESPONDENTS: 1 THE SUPERINTENDING ENGINEER PWD ROADS, CENTRAL CIRCLE ALUVA, PIN - 689101 2 THE EXECUTIVE ENGINEER PWD ROADS, ERNAKULAM, PIN - 682021 3 THE ASSISTANT EXECUTIVE ENGINEER PWD ROADS SUB DIVISION, ALUVA., PIN - 683101 4 THE ASSISTANT ENGINEER PWD, ANGAMALY, PIN - 683572 SRI K V MANOJKUMAR-SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioner impugns Exts.P11 and P15 orders issued by the 1st respondent -f19+ Public Works Department (PWD); and argues that they are illegal and unlawful because the contract, under Ext.A1 Agreement, cannot be cancelled at his risk and cost, so as to forfeit the Security Deposit, since there are no faults that can be attributed to him in any manner whatsoever.
2. The petitioner says that, after the contract was entered into, there was acute shortage of materials, which is compounded by the fact by the Kerala Water Authority (KWA) had to lay pipelines, subsequent to which, COVID-19 pandemic disruption occurred and that he became afflicted by a cardiac issue. He says that all
these factors stood against him; and was, therefore, unable to complete the work, which has now led to the impugned Exts.P11 and P15 orders. He conceded that the work has now been rearranged to another contractor and therefore, pleaded that the contract between him and the ‘PWD’ be directed to be cancelled by its competent Authority, but without any risk and cost being attached to him. He says that he has already preferred Ext.P13 representation before the 1st respondent for this purpose; and prays that same be directed to be taken up and disposed of, without any avoidable delay, because he will be able to convince the said Authority about the veracity of the afore extenuating circumstances.
3. Sri.K.V.Manoj Kumar - learned Senior
Government Pleader appearing for the ‘PWD’, responded to the afore submissions of Sri.N.Rajesh - learned counsel for the
petitioner, says that, normally, when a work is not completed by a contractor as per the Agreement, it will entail its cancellation at his risk and cost, because the rearrangement and the consequent completion of the same, would otherwise, create unnecessary burden on the department. He submitted that, however, since the petitioner says that he has preferred Ext.P13 representation before the 1st respondent, the said Authority is willing to hear him and take a
decision thereon, adverting to the circumstances which he has presented; however, praying that this Court may not make any affirmative
declarations in his favour.
4. When I consider and evaluate the afore submissions, it is without doubt that the
petitioner himself admits that he could not complete the work, but cites specific reasons for such. Though this Court may have some empathy for the petitioner, it would not be possible for me
to take any conclusive decision on the facts
stated by him, since it will require assessment of factual circumstances and materials, which cannot be done under Article 226 of the Constitution of India.
5. I am, therefore, of the firm view that the 1st respondent must take up Ext.P13 representation and hear the petitioner, before a final decision on the imposition of risk and cost against him is taken.
In the afore circumstances, I allow this writ petition and direct the 1st respondent to take up Ext.P13 representation of the petitioner and afford him an opportunity of being heard; thus culminating in an appropriate order and necessary action on his claim, qua risk and cost not being attached to him. The afore shall be done as expeditiously as is possible; but until such time as resultant
order communicated to the petitioner, all
further action to recover any amounts from him or to attach risk and cost responsibility on him,
pursuant to Exts.P11 and P15, shall stand deferred; and will be taken forward only depending on the decision to be arrived,
resultant to the afore directions. Sd/- DEVAN RAMACHANDRAN JUDGE SAS APPENDIX OF WP(C) 37111/2023 PETITIONER’S EXHIBITS: Exhibit P1 TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT NO. 146/SECCA/2019-2020 DATED 18.02.2020. Exhibit P2 TRUE COPY OF COMMUNICATION BEARING NO. A2- 3RD RESPONDENT TO THE 2ND RESPONDENT. Exhibit P3 TRUE COPY OF ORDER NO. DEA-11050/2018 DATED 27.01.2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P4 TRUE COPY OF COMMUNICATION BEARING NO. A2- 2ND RESPONDENT TO THE 1ST RESPONDENT . Exhibit P5 TRUE COPY OF THE ORDER BEARING NO.DEA- RESPONDENT Exhibit P6 TRUE COPY OF SUPPLEMENTAL AGREEMENT NO. II DATED 30.03.2022 TO THE MAIN AGREEMENT NO. 146/SECCA/2019-20 DATED 18.02.2020 Exhibit P7 TRUE COPY OF DISCHARGE SUMMARY ISSUED FROM THE DEPARTMENT OF CARDIOLOGY, LISIE MEDICAL INSTITUTION DATED 02.02.2014 Exhibit P8 TRUE COPY OF THE MEDICAL REPORT ISSUED FROM THE LISIE HOSPITAL, ERNAKULAM. Exhibit P9 TRUE COPY OF COMPLETION CERTIFICATE DATED 28.07.2022 ISSUED BY THE 4TH RESPONDENT . Exhibit P10 TRUE COPY OF COMMUNICATION BEARING NO. 68/18-
19/RD/2018/11050 DATED 18.01.2023 ISSUED BY THE ASSISTANT ENGINEER, PWD, ANGAMALY TO THE PETITIONER . Exhibit P11 TRUE COPY OF THE ORDER NO. DEA-11050/2018 DATED 21.03.2023 PASSED BY THE 1ST RESPONDENT. Exhibit P12 TRUE COPY OF COMMUNICATION BEARING NO. 68/18- 19/RD/2018/11050 DATED 10.02.2023 ISSUED BY THE ASSISTANT ENGINEER, PWD ANGAMALY TO THE 3RD RESPONDENT . Exhibit P13 TRUE COPY OF REPRESENTATION DATED 12.05.2023 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT . Exhibit P14 TRUE COPY OF COMMUNICATION BEARING NO.FCR/4104/94 DATED 22.7.2023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER . Exhibit 15 TRUE COPY OF COMMUNICATION BEARING NO.DEA- PETITIONER .