Alexander John Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE11H DAY OF SEPTEMBER201320TH BHADRA, 1935 WP(C).No. 17987 of 2013 (W) ---------------------------------------- PETITIONER(S): -------------------------- ALEXANDER JOHN GOVERNMENT CONTRACTOR, MUKALUVILA VEEDU KIZHAKKETHERUVU PO, KOTTARAKKARA, KOLLAM DISTRICT BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.P.K.VIJAYAMOHANAN SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT COASTAL SHIPPING AND INLAND NAVIGATION DEPARTMENT GOVERNMENT OF KERALA SECRETARIAT THIRUVANANTHAPURAM-695 001.

2. THE DIRECTOR, IRRIGATION DEPARTMENT INLAND NAVIGATION DIRECTORATE KALLADA HOUSE ASHRAMAM P.O., KOLLAM - 691 002.

3. THE DISTRICT COLLECTOR - KOLLAM CIVIL STATION, KOLLAM - 691 002. BY ADV. GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1109-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jm/ WP(C).No. 17987 of 2013 (W) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 - TRUE COPY OF THE ORDER

GIVING ADMINISTRATIVE SANCTION VIDE GO(RT) NO.58/2010/CSIND DATED1812-2010 EXT.P2 - TRUE COPY OF THE SCHEDULE OF THE WORK AWARDED TO THE PETITIONER EXT.P3 - TRUE COPY OF THE APPLICATION DATED1210-2011 SUBMITTED BY THE PETITIONER FOR EXTENSION OF TIME TILL3006-2012. EXT.P4 - TRUE COPY OF THE ORDER

NO.D1.74/DIR/INDT/2011 DATED1111- 2011 OF THE2D RESPONDENT EXT.P5 - TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED281-2013 EXT.P6 - TRUE COPY OF THE COMMUNICATION NO.D3-2076/PART II/2010 DATED94-2013 OF THE EXECUTIVE ENGINEER ADDRESSED TO THE2D RESPONDENT EXT.P7 - TRUE COPY OF THE ORDER

NO.D1-74/DIR/INDT/11 DATED184-2013 EXT.P8 - TRUE COPY OF THE APPLICATION DATED256-2013 SUBMITTED BY THE PETITIONER EXT.P9 - TRUE COPY OF THE ORDER

G.O(RT)NO.11/2013/CSIND DATED246-2013 RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- \\ TRUE COPY \\ PA TO JUDGE jm/ A.M.SHAFFIQUE, J.

--------------------------------------- W.P.C.No.17987 OF2013--------------------------------------- Dated this the 11th September, 2013.

JUDGMENT

This writ petition is filed by a contractor, who claims that he is unable to carry on with the dredging work awarded in his favour on account of the encroachment by the side of dredging channel. The factual matters regarding the award of work and the extension of time granted until now is not disputed. But the Government has disputes regarding the quantum of work done and the reason for not completing the work. However, by Ext.P6 issued by the Executive Engineer to the Director, Inland Navigation Directorate, it is seen that dredging of the stretch between Jalakeli Kendra up to south of pallithottam is almost complete and have achieved the profile, whereas, the portion from Jalakeli Kendram to Mundakkal bridge cannot be drudged, since the encroachers are not evicted. It is also stated that the fencing work erection of concrete posts are in progress, which could be completed within a month, but erecting posts in a continuous length is not possible as the dwellers are obstructing the work and demanding rehabilitation. It is also reported that W.P.C.No.17987 OF20132 the dwellers are occupying an extent of 750m from Jalakeli Kendra to Mundakkal bridge and after eviction, it will take four more months to complete the work.

2. The claim made by the petitioner is for a direction to the 2nd respondent to give extension of time for completing the work awarded in terms of Ext.P2 by a further period of six months. According to the petitioner he had made all arrangements for carrying out the work and it is only on account of the obstruction created by the encroachers or rather non- removal of the enchroachers from the dredging area, that the petitioner is unable to carryout the said work.

3. Counter affidavit is filed by the respondent, inter alia contending that the work had been awarded to make Kollam thodu navigable from Pallithottam bridge to Mundakkal bridge. It is also stated that, out of the total length of 1890m for which the work was arranged the length of 1190m was cleared of encroachment at the time of handing over of the site. It is further indicated that no assurance was given by the 2nd respondent for clearing the site. It is also contended that though the the site was handed over on 15.06.2011, the petitioner could not complete the W.P.C.No.17987 OF20133 work till 30.06.2013, which was the last extended time for completion. It is also indicated that the time was extended six times from 15.06.2011 to 13.06.2013. No doubt, as matters stand now, there is a deadlock as far as 750 meters length of the work is concerned. If the Government wants to permit the petitioner to proceed with the work, definitely, subject to the terms of the contract the department will have to remove the dwellers, who are obstructing the work. Unless such a work site is provided, it is not possible for any contractor to proceed with the work as well.

4. Taking into consideration the aforesaid factual situation, the petitioner had also submitted Ext.P8 representation seeking extension of time, but so far no action is taken by the Government in this regard. Being a contract between the Government and the petitioner, the parties are governed by the provisions of the contract. Already the time had been extended six times and the period is over by 30.06.2013. Whether further extension of time is to be granted on account of the circumstances mentioned above, is to be considered by the Government. In these circumstances, to avoid any further delay W.P.C.No.17987 OF20134 in execution of the work or in the event of taking any further action, I am of the view that the Government has to take a decision in the matter either by extending the time by removing enchroachers or to take other steps in accordance with the terms of contract. Hence, I do not think that there is any necessity to go into the merits issue involved in the present writ petition. Hence, the writ petition is disposed with the following directions. The 2nd respondent shall consider Ext.P8 and pass appropriate orders within a period of one month from date of the receipt of the copy of this judgment sd/- A.M.SHAFFIQUE, JUDGE jm/ \\ TRUE COPY \\ PA TO JUDGE