Ajayan v. The Secretary Local Self Government Department, Thiruvananthapuram; The Executive Engineer, LSGD Division, District Panchayat, Thiruvananthapuram; The District Collector, Thiruvananthapuram

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **WP(C).No.33770 OF 2018(U)** ## **PETITIONER:** **AJAYAN AGED 57 YEARS S/O. P.N.MADHAVAN, AJAYAVILAS, VELLALLOOR P.O., KILIMANOOR, THIRUVANANTHAPURAM.** **BY ADV. SRI.T.KABIL CHANDRAN** ## **RESPONDENTS:** **1 THE SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **2 THE EXECUTIVE ENGINEER LSGD DIVISION, DISTICT PANCHAYATH, THIRUVANANTHAPURAM - 695 001.** **3 THE DISTRICT COLLECTOR THIRUVANANTHAPURAM - 695 001.** ## **R BY SRI JESTIN MATHEW- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.33770 of 2018(U) 2 ## **JUDGMENT** The petitioner, who is a Registered 'C' Class Contractor under the Kerala Public Works Department with Registration No.AB32215/2015, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to release an amount of Rs.8,39,000/- for the additional contract work carried out in the premises of Peroor Vadassery Government U.P. School in Nagaroor Grama Panchayat, as agreed and approved on mutual consensus. 2. On 16.10.2018, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1 and 3. Urgent notice by speed post was ordered to the 2[nd] respondent. 3. The 2[nd] respondent Executive Engineer, LSGD Division, District Panchayat, Thiruvananthapuram has filed a counter affidavit opposing the relief sought for in this writ petition. Paragraphs 3 to 5 of the said counter affidavit read thus; “3. The Administrative Sanction for the work “Construction of building for Peroor Vadassery Government UP School in Nagaroor Grama Panchayath' was for an amount of Rs.30,00,000/-. The estimate was prepared for Rs.30,00,000/- and technical sanction is issued for an W.P.(C)No.33770 of 2018(U) 3 amount of Rs.30,00,000/-. The petitioner participated in the tender being the contractor by quoting an amount of Rs.23,55,263.01/-. This being the lowest bid the contract was awarded to him. Accordingly executed the agreement and the site was handed over to him for the execution of work. During the course of the work, the Assistant Executive Engineer, LSGD Sub Division, Kilimanoor B.P. submitted a report for revision of estimate within the quoted rate. Accordingly, the estimate was revised with an amount of Rs.23,54,775/- and the petitioner accepted the revised estimate and executed the supplementary agreement. The petitioner completed the work for an amount of Rs.23,51,511/- and the amount was accepted by him and the bill was passed and entire amount as per the agreement has been paid to the petitioner in time bound after effecting all statutory recoveries. 4. The petitioner claimed that he has done additional work like construction of side protection wall and step in between walls and ramp but that work was not included in the original estimate or revised estimate and the so claimed work was done without the consent of the department. Being the implementing officer this respondent is not in a position to pay the amount for the work beyond the estimate. The contention with regard to the execution of additional work and its valuation by a PWD retired Assistant Engineer and reported the estimate cost of Rs.8,50,000/- is not sustainable as the assessment made by a third person who was not appointed or authorized by the Government Authority. W.P.(C)No.33770 of 2018(U) 4 5. The District Collector, Thiruvananthapuram has issued Administrative Sanction for an amount of Rs.4,80,000/- for additional work to Peroor Vadassery Government UP School in Nagaroor Grama Panchayath on the basis of the estimate submitted by the Assistant Executive Engineer, LSGD Sub Division, Kilimanoor B.P and the proposal from the Attingal Constituency MLA. In the administrative sanction, it is clearly specified that the work will be executed by the Assistant Executive Engineer, LSGD Sub Division, Kilimanoor Block Panchayat. No valid agreement has been signed by the petitioner for executing the so claimed additional work. And Assistant Executive Engineer is not made party to the proceedings, who is a necessary and essential party to the proceedings.“ 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 5. The document marked as Ext.P1 is the estimate for the construction of building for Peroor Vadassery Government U.P. School in Nagaroor Grama Panchayat with a total cost of Rs.30,00,000/-. The document marked as Ext.P2 is the agreement schedule. The petitioner submitted the lowest tender quoting a sum of Rs.23,55,260/-, which was accepted and he was awarded with the contract. The petitioner entered into Ext.P3 agreement dated 17.07.2017 with the 2[nd] respondent, in respect of 34 items of work included in Ext.P2 agreement schedule. According to the petitioner, W.P.(C)No.33770 of 2018(U) 5 apart from the items specified in the agreement schedule, he had carried out additional work, which includes earth removing, landscape adjusting, etc. and also the construction of side protection wall, step between the sidewalls and ramp. The document marked as Ext.P4 is a letter dated 14.09.2017 of by the Headmaster of Peroor Vadassery Government U.P. School, addressed to the 2[nd] respondent Executive Engineer, pointing out the urgency in completing the construction of the building, in order to conduct class during the next academic year. After completion of the work, the site was handed over to the school authorities and the petitioner received a total amount of Rs.23,05,000/-, after deducting amount towards Construction Workers Welfare Fund and other statutory dues. The grievance of the petitioner is that an amount of Rs.4,50,000/- for the additional work undertaken is yet to be sanctioned and released by the 2[nd] respondent. In addition to this, a sum of Rs.3,89,000/- is outstanding in respect of item Nos.13, 22, 26, 27, 28, 29, 30, 31, 32 and 33. Therefore, according to the petitioner, he is entitled for payment of a total sum of Rs.8,39,000/- from the 2[nd] respondent for the contract work, i.e., the construction of building for Peroor Vadassery Government U.P. W.P.(C)No.33770 of 2018(U) 6 School. 6. The document marked as Ext.P5 is an order dated 20.06.2018 of the 3[rd] respondent District Collector granting administrative sanction for certain additional work for Peroor Vadasseri Government U.P. School with an estimate of 4,80,000/-, based on a proposal from the MLA of the constituency. The document marked as Ext.P6 is a copy of the letter dated 30.07.2018 of the President of Nagaroor Grama Panchayat, addressed to the MLA of the constituency, with a request to sanction the balance amount in excess of Rs.24,00,000/- already sanctioned for the construction of the school building. The document marked as Ext.P7 series are the photographs of the construction works undertaken by the petitioner. The document marked as Ext.P8 is the valuation statement prepared by a retired Assistant Engineer of the Public Works Department regarding the additional work carried out by the petitioner for more than Rs.8,50,000/-. 7. The stand taken by the 2[nd] respondent Executive Engineer in the counter affidavit is that administrative sanction for the construction of building for Peroor Vadassery Government U.P. W.P.(C)No.33770 of 2018(U) 7 School was for an amount of Rs.30,00,000/-. The estimate was prepared for Rs.30,00,000/- and technical sanction was issued for an amount of Rs.30,00,000/-. The petitioner quoted an amount of Rs.23,55,263.01/-. Being the lowest bid the contract was awarded to the petitioner. The petitioner executed the agreement and the site was handed over to him. During the course of the work, the Assistant Executive Engineer, LSGD Sub Division, Kilimanoor Block Panchayat submitted a report for revision of estimate within the quoted rate. Accordingly, the estimate was revised with an amount of Rs.23,54,775/-. The petitioner accepted the revised estimate and executed the supplementary agreement. After completion of the work, bill for Rs.23,51,511/- was passed and the entire amount as per the agreement has been paid to the petitioner, after effecting all statutory recoveries. The additional work claimed to have been undertaken by the petitioner like construction of side protection wall, step in between sidewalls and ramp were not included in the original estimate or in the revised estimate. Being the implementing officer, the 2[nd] respondent was not in a position to pay amount for the work beyond the estimate. In Ext.P5 administrative sanction accorded by the District Collector for an W.P.(C)No.33770 of 2018(U) 8 amount of Rs.4,80,000/-, for the additional work for Peroor Vadassery Government U.P. School, it is clearly specified that the work will be executed by the Assistant Executive Engineer, LSGD Sub Division, Kilimanoor Block Panchayat. No agreement has been executed by the petitioner for the additional work claimed to have been undertaken by him. 8. In **State of Bihar v. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216]** , the Apex Court reiterated that writ petition under Article 226 of the Constitution of India is not the remedy for enforcing contractual obligations. It is not the proper proceedings for adjudicating such disputes. Under the law, it was open to the respondent to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226. 9. In **Jain Plastics and Chemicals Ltd.** the Apex Court W.P.(C)No.33770 of 2018(U) 9 observed that it is true that many matters could be decided after referring to the contentions raised in the affidavits and counteraffidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs. 10. In the instant case, the stand taken in the counter affidavit filed by the 2[nd] respondent is that the petitioner accepted the revised estimate for an amount of Rs.23,54,775/- and executed the supplementary agreement. After completion of work, bill for Rs.23,51,511/- was passed and the entire amount as per that agreement has been paid to the petitioner, after effecting all statutory recoveries. The additional work claimed to have been W.P.(C)No.33770 of 2018(U) 10 undertaken by the petitioner like construction of side protection wall, step in between the sidewalls and ramp were not included in the original estimate or revised estimate, for which no agreement has been executed by the petitioner. Therefore, the question as to whether the petitioner is entitled for payment of any amount in addition to the bill amount of Rs.23,51,511/- for the work covered by the supplementary agreement or whether he is entitled for payment of any amount for the additional work claimed to have been undertaken by him is a disputed question of fact, which has to be adjudicated in a properly instituted civil suit and not in a writ petition filed before this Court, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. In the result, this writ petition filed on 15.10.2018 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to approach the competent civil court, in accordance with law, seeking appropriate reliefs. No order as to costs. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** AV W.P.(C)No.33770 of 2018(U) 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE DETAILED ESTIMATE ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 THE TRUE COPY OF THE AGREEMENT SCHEDULE SUBMITTED BY THE PETITIONER.** **EXHIBIT P3 THE TRUE COPY OF THE AGREEMENT DATED 17/07/2017.** **EXHIBIT P4 THE TRUE COPY OF THE LETTER ISSUED BY THE PTA TO THE 2ND RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE SANCTION ORDER PASSED BY THE 3RD RESPONDENT. EXHIBIT P6 THE TRUE COPY OF THE LETTER ISSUED BY THE NAGAROOR GRAMA PANCHAYATH. EXHIBIT P7 THE TRUE COPY OF THE PHOTOGRAPHS SHOWING THE CONSTRUCTION WORKS UNDERTAKEN BY THE PETITIONER. EXHIBIT P8 THE TRUE COPY OF THE VALUATION REPORT. EXHIBIT P9 THE TRUE COPY OF THE LETTER ISSUED BY THE BRANCH MANAGER,SBI KILIMANOOR BRANCH. EXHIBIT P10 THE TRUE COPY OF REQUEST LETTER DATED 07/09/2018 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.**