Joseph Jacob v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 19TH DAY OF NOVEMBER 2014/28TH KARTHIKA, 1936** **WP(C).No. 33856 of 2011 (F) ----------------------------** ## **PETITIONER(S):** **----------------** **JOSEPH JACOB,AGED 78 YEARS, S/O.LATE M.P.JOSEPH, E.H.T.LINE CONTRACTOR MUNDACKAL HOUSE, PINDIMANA.P.O, KOTHAMANGALAM.** **BY ADVS.SRI.BABU PAUL SRI.NAVEEN THOMAS** **RESPONDENT(S):** **---------------** **1. THE CHAIRMAN,KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM.P.O THIRUVANANTHAPURAM.** **2. THE CHIEF ENGINEER,(TRANSMISSION SOUTH), K.S.E.B, VYDYUTHI BHAVAN, PATTOM.P.O THIRUVANANTHAPURAM.** **3. THE MEMBER,TRANSMISSION,K.S.E.B, VYDYUTHI BHAVAN, PATTOM.P.O, THIRUVANANTHAPURAM.** **4. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN PATTOM.P.O, THIRUVANANTHAPURAM.** **BY ADVS. SRI.T.R.RAJAN,SC,K.S.E.B. SRI.K.M.SATHYANATHA MENON,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXT.P1: A TRUE COPY OF THE WORK ORDER DATED 12/10/1989 ISSUED TO THE PETITIONER.** - **EXT.P2: TRUE COPY OF THE ORDER DATED 15/11/1989 ISSUED BY THE RESPONDENTS.** **EXT.P3: TRUE COPY OF THE JUDGMENT DATED 13/8/2004,IN W.P.(C)12625/04** - **EXT.P4: TRUE COPY OF THE CLAIM DATED 17/7/2006 SUBMITTED BY THE PETITIONER.** - **EXT.P5: TRUE COPY OF THE ORDER DATED 13/7/2007 ISSUED BY THE RESPONDENT.** - **EXT.P6: TRUE COPY OF THE LETTER DATED 18/2/2011 ISSUED BY THE RESPONDENT.** - **EXT.P7: TRUE COPY OF THE ORDER DATED 16.4.2011 ISSUED BY THE RESPONDENT.** - **EXT.P8: TRUE COPY OF THE REPRESENTATION DATED 30.4.2011 SUBMITTED BY THE PETITIONER.** - **EXT.P9: TRUE COPY OF THE JUDGMENT DATED 2/8/2011 IN W.P.(C)20998/11** - **EXT.P10: TRUE COPY OF THE LETTER DATED 3/9/2011 ISSUED BY THE RESPONDENT.** - **EXT.P11: TRUE COPY OF THE ORDER DATED 21/10/2011 ISSUED BY THE RESPONDENT.** **EXT.P12: TRUE COPY OF THE NOTE NO.T2(B)637/79/C OF THE 2[nd] RESPONDENT.** **EXT.P13: TRUE COPY OF THE LETTER DATED 23/4/1993 NO.DB362/84-85/76.** - **EXT.P14: TRUE COPY OF THE LETTER DATED 30/6/1994 VIDE LETTER NO.DB362/84-85/341.** ## **RESPONDENTS' EXHIBITS** **: NIL** ## **//TRUE COPY//** ## **P.A TO JUDGE** **stu** ## **P.B. SURESH KUMAR, J.** = = = = = = = = = = = = **W.P.(C).No.33856 of 2011** = = = = = = = = = = = = = = = Dated this the 19[th] day of November, 2014. ## **J U D G M E N T** Petitioner was a contractor undertaking the civil works of the Kerala State Electricity Board, hereinafter referred to as “the Board” for short. He was awarded the work of construction and drawing of 220 KV electric line between Sabarigiri and Edamon by the Board. Ext.P1 is the work order issued by the second respondent to the petitioner in connection with the said work. Ext.P1 work order, though recites that rates for the work are firm, subsequently, as per Ext.P2 communication, the Board had clarified that the rates of the work will be firm during the contractual period of 15 months and if the work is not completed within the agreed period solely due to the omission/commissions on the part of the Board, the contractor is at liberty to raise the issue of revision of rates. Ext.P2 communication issued by the second respondent recites that the same will form part of the agreement. As per the terms of the contract, the petitioner should have completed the work by April, 1991. The work, however, was completed only during W.P.(C).No.33856 of 2011 2 1994. On completion of the work, the petitioner had raised a claim for revision of rates alleging that the delay in completing the work was due to the omission/commissions on the part of the Board. The claim raised by the petitioner was rejected by the Board initially as per Ext.P5 order. The petitioner sought review of Ext.P5 order, as per Ext.P8 representation addressed to the Chairman of the Board. Since Ext.P8 representation was not considered by the Chairman, the petitioner had approached this Court, and as per Ext.P9 judgment, this Court directed the Chairman of the Board to consider Ext.P8 representation made by the petitioner. Ext.P11 is the order passed on Ext.P8 representation. The stand taken by the Chairman of the Board in Ext.P11 is that the Full Board has already considered and rejected the claim of the petitioner as per Ext.P5 order and therefore, there is no reason to review the same. Exts. P5 and P11 orders are under challenge in this writ petition. 2. A counter affidavit has been filed by the Board reiterating the stand taken in Exts.P5 and P11. A reply has been filed by the petitioner to the counter affidavit filed by the Board in which a few additional documents are produced. W.P.(C).No.33856 of 2011 3 ## 3. Clause 7 of Ext.P2 letter relied on by the petitioner in support of his claim for revision of rates reads thus: “The rates will be firm during the contractual period of 15 months from the date of execution of the agreement. If the work is not completed within this period solely due to the omission/commissions on the part of the Board you are free to open the issue after the contractual period.” The fact that the work was not completed within the time stipulated in the contract is not disputed. Likewise, the fact that the work was completed to the satisfaction of the Board is also not disputed. The question therefore, is whether the delay is completing the work is due to reasons attributable to the Board. The said question is not seen considered by the Board and its Chairman in Exts.P5 and P11 decisions. Exts.P12 produced by the petitioner along with the reply affidavit is a note submitted by the Chief Engineer concerned of the work to the Secretary of the Board during June 1992. The recitals therein would indicate that the delay in completing the work was not attributable to the petitioner. Likewise, Ext.P13 is a letter addressed by the Executive Engineer concerned of the work to the Deputy Chief Engineer of the Board on 23.4.1993. The said letter also W.P.(C).No.33856 of 2011 4 indicates that the Board has not supplied the materials required as per the terms of the contract to the petitioner in time. Ext.P11 order is passed without adverting to Ext.P2 clarification issued by the second respondent as also Exts.P12 and P13 communications. In so far as Exts.P5 and P11 orders are issued without adverting to all the relevant materials, I am of the opinion that the matter has to be reconsidered by the Board. The stand taken by the first respondent that as the Full Board has already considered the issue, there is no need to consider the issue again cannot also be countenanced. Ext.P8 representation was addressed to the first respondent by the petitioner with a prayer to review and re-consider the earlier decision in his capacity as the Chairman of the Board. As such, the Chairman of the Board cannot reject the same on the ground that the Board has already taken a decision in the matter. 4. The learned counsel for the Board has pointed out that it is a case where the petitioner is attributing breach of contract and therefore, his remedy is to file a civil suit and jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked. W.P.(C).No.33856 of 2011 5 ## 5. In **Hindustan Construction Co. Ltd. v. K.S.E.B** [1999 ## (2) KLT 30], this Court held as follows: The Kerala State Electricity Board is a Board constituted in exercise of the powers conferred by S.79B of the Electricity Supply Act 1948, by the State of Kerala. The decision and the orders taken by the Board have to satisfy the test of fairness and reasonableness envisaged under Art.14 of the Constitution of India. The action of the Board has got a public law element in it. The action of the Board bears public character with public interest and their's is administrative decision and are impeached on the ground of arbitrariness and violation of Art.14 of the Constitution of India and therefore, Writ Petition under Art.226 of the Constitution is clearly maintainable. The said decision was rendered by this Court in the context of a claim raised by another contractor who has undertaken a work of the Board. In the light of the said judgment, the contention of the Board that the petitioner could not have approached this Court in relation to the contract in question, cannot be accepted. In the result, the Writ Petition is allowed, Exts.P5 and P11 orders are quashed and the fourth respondent is directed to W.P.(C).No.33856 of 2011 **==> picture [7 x 10] intentionally omitted <==** consider the claim raised by the petitioner for revision of rates for the work covered by Ext P1 work order afresh within a period of three months from today. **P.B. SURESH KUMAR, JUDGE.** Stu //True copy// P.A to Judge