B. Suresh v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944`** ## **`WP(C) NO. 14283 OF 2012`** ## **`PETITIONER/S:`** ``` 1B.SURESH, AGED 46 YEARS AMBADI, PERINGANADU, ADOOR. ADDL.2 "ANITHA SURESH AGED 45 YEARS,W/O LATE B SURESH,AMBADY, PERINGANAD P O,ADOOR ,PATHANAMTHITTA,PIN-691551" ``` ``` IS IMPLEADED AS ADDL P2 AS PER ORDER DATED 31/03/2022 IN IA 1/2022 ``` ``` BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX MANU SANKAR P. ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA-689 645.` - `2 DEPUTY TAHSILDAR REVENUE RECOVERY TALUK OFFICE, ADOOR, PIN-691 523.` - `3 THE CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM-695 001.` - `4 EXECUTIVE ENGINEER OFFICE OF THE EXECUTIVE ENGINEER (KSEB), TRANSMISSION DIVISION, PATHANAMTHITTA-689 645.` - `5 ASSISTANT EXECUTIVE ENGINEER TRANSMISSION SUB DIVISION (KSEB), PATHANAMTHITTA, PIN-689 645.` - `6 ASSISTANT ENGINEER IN CHARGE TRANSMISSION SUB DIVISION (KSEB), PATHANAMTHITTA, PIN-689 645.` -2- W.P.(C). No. 14283 of 2012 ``` 7M.BIJU THAJ BHAVAN, PAZHAKULAM, ADOOR, PIN-691 523. ``` ## **`OTHER PRESENT:`** ``` SRI.JOSWIN THAMBI KUNNATH, SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No. 14283 of 2012 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 14283 of 2012 ============================================================= Dated this the 20[th] day of January, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers. _“i. Declare that the respondents 1 and 2 are not liable to recover the non admitted and unilaterally quantified liability in Exhibit P5;_ _ii. Issue a writ in the nature of certiorari or any other writ, order of direction calling for the records leading to the issuance of Exhibits P7 and P8 and quash the same;_ _iii. Issue a writ in the nature of certiorari or any other writ, order of direction calling for the records leading to the issuance of Exhibit P5 and quash the same;_ _iv. Issue a writ in the nature of certiorari or any other writ, order or direction calling for the records leading to the issuance of Exhibit P11 and quash the same._ _v. Issue such other appropriate writ, order or direction that may be deemed just and equitable in the facts and circumstances of the case. (sic)_ 2. The petitioner entered into Ext.P2 agreement dated 23.12.2009 with the 5[th] respondent for “Yard leveling and -4- W.P.(C). No. 14283 of 2012 metaling” as per P1 tender. It is the case of the petitioner that no work could be commenced in time by the petitioner because the 7[th] respondent was doing ‘cable trench’ work during the relevant time in the very same work site. Due to the delay in actually handing over the work site, it became impossible for the petitioner to perform the work at the previously agreed rate. The 5[th] respondent was not amenable to give the reasonable increase in rate as sought by the petitioner instead proceeded to unilaterally terminate the contract, is the contention. It is also the contention of the petitioner that the 4[th] respondent unilaterally quantified the risk and cost amount even without any notice to the petitioner and fixed the same at Rs.1,50,749/- as per Ext.P5. It is stated in the writ petition that as per clause 14 of the Specification of tender dated 22.10.2009, the 5[th] respondent, instead of terminating the contract ought to have referred the matter before the 3[rd] respondent. Subsequently, the 2[nd] respondent issued notice to the petitioner under Section 7 and 34 W.P.(C). No. 14283 of 2012 -5- of the Kerala Revenue Recovery Act based on the decision of the 4[th] respondent in Ext.P5. Exts.P7 and P8 are the revenue recovery notices. Aggrieved by the same, this writ petition is filed. 3. Heard the counsel for the petitioner and the Government Pleader. 4. The petitioner is challenging Ext.P6 order terminating the contract and the consequential Ext.P5 order fixing the risk and cost. The grievance of the petitioner is that Ext.P5 is passed without giving an opportunity of hearing to the petitioner and the quantification of the damages is made unilaterally. The petitioner relied on the judgment of this Court in **Kaikkara Construction** . **Company v. State of Kerala and Another [2022 (2) KHC 541]** It will be better to extract the relevant portion of the above judgment here: -6- W.P.(C). No. 14283 of 2012 _“16. Therefore, the principle is that in a contract, one of the parties cannot assess the damages arising out of the breach of contract if there is a dispute, even if there is a clause empowering to assess damages. In such cases an adjudication by an independent authority is necessary._ _17. The Government Pleader submitted that the judgment in M/s. Gangotri Enterprises Ltd. v. Union of India [2016 (11) SCC 720] and Raman Iron Foundry's case (supra) is overruled in Kamaluddin Ansari's case (supra) and it is observed in paragraph No.21 of the Apex Court judgment in State of Gujarat v. Amber Builders [2020 (2) SCC 540]. There is no dispute on that. But a combined reading of the decisions of the Apex Court in Raman Iron Foundry's case (supra), Kamaluddin Ansari's case (supra), and also the latest judgment in State of Gujarat's case (supra) will show that the earlier dictum to the effect that there cannot be any unilateral decision by one party to the contract to assess the damages when there is dispute from the other party is not touched by the Apex Court. Therefore, the contention of the Government Pleader is to be rejected.”_ 5. I think there is force in the argument of the petitioner in the light of the dictum laid down by this Court. Admittedly no hearing is given to the petitioner before passing Ext.P5. Therefore, according to me, Ext.P5 and consequential revenue recovery proceedings can be quashed and the 4[th] respondent can -7- W.P.(C). No. 14283 of 2012 be directed to reconsider the matter, after giving an opportunity of hearing to the petitioner. Therefore, this writ petition is allowed in the following manner: 1. Exts.P5, P7 and P8 are quashed. 2. There will be a direction to the 4[th] respondent to reconsider the matter, after giving an opportunity of hearing to the petitioner. sd/- **P.V.KUNHIKRISHNAN JUDGE** das W.P.(C). No. 14283 of 2012 -8- ## **`APPENDIX OF WP(C) 14283/2012`** ## `PETITIONER EXHIBITS` - `Exhibit P1` - `TRUE COPY OF THE TENDER FORM IN TENDER NO.AEE/TSDP/05/09-10 DATED 22.10.09.` - `Exhibit P2 TRUE TYPE WRITTEN COPY OF THE AGREEMENT NO.AEE/TSDP 107/09-10, DATED 23.12.2009.` - `Exhibit P3 TRUE COPY OF LETTER NO.DB/TSDP/KOODAL/2009-10/146 DATED 1.7.2010 FROM 5TH RESPONDENT.` - `Exhibit P4 TRUE COPY OF LETTER DATED 11.7.2010 ISSUED BY PETITIONER IN RESPONSE TO EXHIBIT P3.` - `Exhibit P5 TRUE COPY OF ORDER NO.AB1/TD-PTA/RISK AND COST/KOODAL/882 DATED 26.12.2011 BY 4TH RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE ORDER` - `NO.DB/TSDP/KOODAL/2009-10/199 DATED 21.7.2010.` - `Exhibit P7 TRUE COPY OF NOTICE (U/S.7) DATED 3.5.2012 ISSUED TO PETITIONER BY THE 2ND RESPONDENT.` - `Exhibit P8 TRUE COPY OF THE NOTICE (U/S.34) DATED 3.5.2012 ISSUED TO PETITIONER BY THE 2ND RESPONDENT.` - `Exhibit P9 TRUE COPY OF THE LETTER DATED 28.5.2012 ISSUED TO THE 3RD RESPONDENT.` - `Exhibit P10 TRUE COPY OF THE LETTER DATED 30.5.2012 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.` - `Exhibit P11 TRUE COPY OF ORDER BEARING NO.CETS/EEC/PTA-GENL/47 DATED 12.7.2012 ISSUED BY 3RD RESPONDENT.`