Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 WP(C) NO. 15722 OF 2021 PETITIONER: MAJESTIC CONSTRUCTIONS REPRESENTED BY ITS MANAGING PARTNER, DOMINIC ZACHARIAS, S/O P.O.ZACHARIAS, AGED 54 YEARS, PANAMKATTU HOUSE, KARIMKUNNAM P.O.THODUPUZUA TALUK, IDUKKI DISTICT-685 586. BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN PRAVEEN S. SUNIL KUMAR A.G DIPU JAMES MATHEW K.T. GEORGE K.V. STEPHY K REGI RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE PUBLIC WORKS DEPARTMENT, REP BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3 THE FINANCE DEPARTMENT (INDUSTRIES & PUBLIC WORKS-B) REP BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4 THE CHIEF ENGINEER OFFICE OF THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES), THUCADU, THIRUVANANTHAPURAM-695 014. 5 THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT, ROADS CENTRAL CIRCLE, ALUVA-683 101. 6 THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, ROADS DIVISION, PAINAVU P.O.IDUKKI DISTRICT-685 603.
7 THE SENIOR FINANCE OFFICER, OFFICE OF THE CHIEF ENGINEER,PUBLIC WORKS DEPARTMENT P.W.D.(ROADS & BRIDGES) THYCADU, THIRUVANANTHAPURAM-695 014. BY ADV.K.V.MANOJ KUMAR, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2021, ALONG WITH WP(C).19228/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, WP(C) NO. 17618 OF 2021 PETITIONERS:
1 RAFEEK C.H.,AGED 43 YEARS C.K.HAMEED, RESIDING AT CHULLIMALATHAZHATHU HOUSE, PERUMBALOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-686 673. 2 P.A.RAJAN, AGED 64 YEARS S/O.AYYAPPAN, RESIDING AT PEEDIKAYIL HOUSE, KADAYIRIPPU, KOLENCHERI, ERNAKULAM DISTRICT-682 311. 3 SHYNU T.VARGHESE, AGED 60 YEARS S/O.PAILY VARKEY, RESIDING AT THENICKAKUDY HOUSE, SOUTH MARADY P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-686 673. 4 K.M.SUNNY, AGED 53 YEARS S/O.P.V.MATHAI, RESIDING AT KANJITHINKAL HOUSE, THIRUVANIYOOR P.O., PUTHENCRUZ, ERNAKULAM DISTRICT-682 308. 5 SUBAIR.N.A., AGED 49 YEARS S/O.ALIYAR, RESIDING AT NIRAPPEL HOUSE, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-686 673. 6 N.K.ASHRAF, AGED 49 YEARS S/O.KUNJUMON, RESIDING AT NIRAPPEL HOUSE, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT- 686 673. 7 N.U.KUNJU MUHAMMED,AGED 53 YEARS S/O.UMMER, RESIDING AT NEDUMPURATHU HOUSE, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT- 686 669. 8 P.P.OUSEPH, AGED 65 YEARS PADAYATTIL HOUSE, S/O.POULOSE, NELLIKKUZHI P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691.
9 VARGHESE KUTTY.M.K., AGED 45 YEARS S/O.KURIAKOSE, MOOSAPPILLIL HOUSE, KOTTAPPADY P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691. BY ADVS.ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MOHAMMED SHAFI C.H.ABDUL RASAC RESPONDENTS:
1 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, 3RD FLOOR, REVENUE COMPLEX, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695 001. 2 THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA, ERNAKULAM DISTRICT-683 101. 3 THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, MUVATTUPUZHA P.O., ERNAKULAM DISTRICT-686 661. 4 THE ASSISTANT EXECUTIVE ENGINEER, PWD ROAD SUB DIVISION, MUVATTUPUZHA P.O., ERNAKULAM DISTRICT-686 661. 5 THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION, PERUMBAVOOR, ERNAKULAM DISTRICT-683 542. 6 THE ASSISTANT EXECUTIVE ENGINEER, PWD BRIDGES SUB DIVISION, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT-682 030. 7 THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION, KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691. 8 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695 001. BY ADV.K.V.MANOJ KUMAR, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2021, ALONG WITH WP(C).19228/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, WP(C) NO. 19228 OF 2021 PETITIONER: M/S. G.K.V.ASSOCIATES, VELLAMATTOM ESTATE, P.O. JUNCTION, MUVATTUPUZHA, REPRESENTED BY ITS MANAGING PARTNER. BY ADVS. PHILIP J.VETTICKATTU SAJITHA GEORGE RESPONDENTS:
1 THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA 683 101. 2 STATE OF KERALA, REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT , TRIVANDRUM 695 001. 3 STATE OF KERALA, REPRESENTED BY THE SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM 695 001. 4 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,T TRIVANDRUM 695 001. BY ADV.K.V.MANOJ KUMAR, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2021, ALONG WITH WP(C).15722/2021, FOLLOWING:
P.V.KUNHIKRISHNAN, J.
-------------------------------- ---------------------------------------------- Dated this the 30th day of November, 2021
JUDGMENT
These three writ petitions are connected. The petitioners in these writ petitions are challenging G.O.(Rt) No.3815/2021/Fin. dated 30.04.2021 of the Government of Kerala.
2. When these writ petitions came up for
consideration, both sides submitted that the point raised in these writ petitions are covered by common judgment dated 11.11.2021 in W.P.(C). No.22964 of 2021 and connected cases. It will be better to extract the relevant portion of the
judgment:
“24. The Ext.P7 thus imposes a new condition in all the ongoing works as on 30.04.2021. Further, the said new condition is made applicable to all works for which agreements are executed after 01.11.2018. Ext.P7 is legally infirm for two reasons. Firstly, by Ext.P7, a new onerous condition is imposed on all ongoing works unilaterally, which is impermissible in law. It is true that as per Clause 5.2
of the Standard Bidding Document, a contractor is bound by all Government Orders prevailing. But the said Clause cannot take in Government Orders which were not prevailing at the time of the execution of agreement.
25. Secondly, there may be contracts executed
after 01.11.2018 and works completed before issuance of Ext.P7 on 30.04.2021. Subsequently issued Government Orders cannot alter the rights and liabilities of concluded commercial contracts. For both the afore reasons, Ext.P7 order cannot be made applicable to all agreements executed after 01.11.2018 and before 30.04.2021. In the circumstances, it is declared that Ext. P7 Government Order dated 30.04.2021 will not apply to such contract works undertaken by the petitioners prior to 30.04.2021 which were not ongoing contract works as on 01.11.2018. All consequence of such declaration will follow. The writ petitions are disposed of as above. However, it is made clear that Ext. P7 Government Order will apply to all contract works including if any undertaken by the petitioners, the work of which were ongoing as on 01.11.2018.”
3. In the light of the above judgment, I think these writ petitions can also be disposed in tune with the above
judgment.
Therefore, these three writ petitions are disposed in tune with the judgment dated 11.11.2021 in W.P.(C). No.22964 of 2021 and connected cases. The petitioners are free to approach the authority concerned to release the amount in accordance with the above judgment, if there is any amount due to them. If any amount is due to the petitioners, the same should be disbursed forthwith. It is made clear that if the respondents have got any right to recover any amount in tune with the above judgment, they are free to recover the same. Sd/- P.V.KUNHIKRISHNAN JV JUDGE APPENDIX OF WP(C) 15722/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF WORK ORDER NO DIT- SCHEDULE. Exhibit P2 TRUE COPY OF COMPLETION CERTIFICATE DATED 17.6.2021 ISSUED BY 5TH RESPONDENT Exhibit P3 TRUE COPY OF GO(RT0 NO 3815/2021 /FIN DATED 30.4.2021 ISSUED BY 3RD RESPONDENT Exhibit P4 TRUE COPY OF REPRESENTATION DATED 15.7.2021 SUBMITTED BY PETITIONER TO 6TH RESPONDENT Exhibit P5 TRUE COPY OF INTIMATION A7/11/2021 DATED 19.7.2021 ISSUED BY 6TH RESPONDENT TO 7TH RESPONDENT Exhibit P6 TRUE COPY OF LETTER NO NO D2- 6TH RESPONDENT Exhibit P7 TRUE COPY OF GO(RT0 NO 9386/2018/FIN DATED 13.11.2018 ISSUED BY 3RD RESPONDENT Exhibit P8 TRUE COPY OF GO(RT0 NO 2816/2020/FIND DATED 17.4.2020 ISSUED BY 3RD RESPONDENT Exhibit P9 TRUE COPY OF GO(RT) NO 5502/2020/FIN DATED 25.9.2020 OF 3RD RESPONDENT Exhibit P10 TRUE COPY OF RELEVANT PAGED OF NIT NO RESPONDENT Exhibit P11 TRUE COPY OF TREASURY SAVING BANK TERM DEPOSIT CERTIFICATE NO.JK NO.359844 DATED 11/7/2023 ISSUED FROM SUB TREASURY, ALUVA Exhibit P12 TRUE COPY OF IBG NO.99081 DTD.12/7/2021 OF FEDERAL BANK, THODUPUZHA. APPENDIX OF WP(C) 17618/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE INVITING TENDER ISSUED BY THE 3RD RESPONDENT. Exhibit P2 TRUE COPY OF THE BILL DATED 08.03.2021 ISSUED IN FAVOUR OF THE 1ST PETITIONER. Exhibit P3 TRUE COPY OF THE NOTICE NO.A2-737/19 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER DATED 06.08.2021. Exhibit P4 TRUE COPY OF THE NOTICE NO.A2- TO THE 5TH PETITIONER DATED 09.08.2021. Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF PWD MANUAL, 2012. Exhibit P6 TRUE COPY OF THE GO(RT) NO.9386/2018/FIN DATED 13.11.2018 ISSUED BY THE 7TH RESPONDENT. Exhibit P7 TRUE COPY OF THE CIRCULAR NO.753/2012/CE/LSGD DATED 15.02.2020 ISSUED BY THE CHIEF ENGINEER, LOCAL SELF GOVT. DEPARTMENT.
Exhibit P8 TRUE COPY OF THE ORDER
NO.GO(RT)NO.3815/2021/FIN DATED 30.04.2021 ISSUED BY THE 7TH RESPONDENT. EXHIBIT P9 COPY OF THE G.O.(RT) NO.5502/2020/FIN DATED 25.09.2020 APPENDIX OF WP(C) 19228/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE INVITING TENDER ISSUED BY THE IST RESPONDENT DATED 2.2.2019 WITH RESPECT TO MARIKA WORK. Exhibit P2 TRUE COPY OF THE BOQ UPLOADED BY THE PETITIONER ALONG WITH THE BID WITH RESPECT TO MARIKA WORK. Exhibit P3 TRUE COPY OF RELEVANT PAGES OF THE
AGREEMENT DATED 8.3.2019 EXECUTED BETWEEN THE PETITIONER AND THE COMPETENT AUTHORITY WITH RESPECT TO MARIKA WORK. Exhibit P4 TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE AUTHORITY COMPETENT WITH RESPECT TO MARIKA WORK ON 15.10.2020. Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF THE NOTICE INVITING TENDER WITH RESPECT TO THE FESTIVAL ROAD WORK DT. 20.9.2019. Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT DATED 18.11.2019 EXECUTED BETWEEN THE PETITIONER AND THE COMPETENT AUTHORITY WITH RESPECT TO FESTIVAL ROAD WORK.
Exhibit P7 TRUE COPY OF BILLS ISSUED BY THE MANGALORE REFINERY PETROCHEMICALS LTD FOR PURCHASING BITUMEN. Exhibit P8 TRUE COPY OF THE COMPLETION CERTIFICATE DATED 25.03.2021 ISSUED BY THE RESPONDENT WITH RESPECT TO THE FESTIVAL ROAD WORK. Exhibit P9 TRUE COPY OF QUERY SUBMITTED BY THE PETITIONER UNDER THE PROVISIONS OF RIGHT TO INFORMATION ACT DT. 11.8.2021. Exhibit P10 TRUE COPY OF INFORMATION OBTAINED BY THE PETITIONER TO EXT. P9 UNDER THE RIGHT TO INFORMATION ACT T. 26.8.2021. Exhibit P11 TRUE COPY OF GOVERNMENT ORDER DATED 30.4.2021 BEING NO. GO(RT) Exhibit P12 TRUE COPY OF GOVERNMENT ORDER DATED 13.11.2018 BEARING NO. G.O.(RT) NO. Exhibit P13 TRUE COPY OF GOVERNMENT ORDER DATED 17.4.2020 BEARING NO. GO(RT) NO. Exhibit P14 TRUE COPY OF GOVERNMENT ORDER DATED 25.9.2020 BEARING NO. GO(RT) NO.