Kabeer M. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE ACTING CHIEF JUSTICE MR.S.V.N.BHATTI** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 30[TH] DAY OF MAY 2023 / 9TH JYAISHTA, 1945 WA NO. 1020 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 1323/2023 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER:** KABEER M. AGED 40 YEARS S/O. M. ABDULLA, CONTRACTOR, MUNDANGALAM HOUSE, THEKKIL FERRY P.O., KASARAGOD DISTRICT, PIN - 671541 BY ADVS. P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR SABU PULLAN GOKUL D. SUDHAKARAN R.BHASKARA KRISHNAN K.P.SATHEESAN (SR.) ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (ROADS), PUBLIC OFFICE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033 4 EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, ROADS DIVISION, KOZHIKODE DISTRICT, PIN – 673020 2 ## W.A.No.1020/2023 - 5 ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, ROADS SUB DIVISION, KOYILANDI, KOZHIKODE DISTRICT, PIN - 673305 - 6 ASSISTANT ENGINEER PUBLIC WORKS DEPARTMENT, ROADS SECTION, PERAMBRA, KOZHIKODE DISTRICT, PIN - 673525 GOVERNMENT PLEADER T.K. VINPINDAS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.1020/2023 3 ## **JUDGMENT** ## **M.R.Anitha,J** This writ appeal has been filed against the judgment in W.P.(C) No.1323 of 2023. The same was filed by the appellant challenging the order dated 05/01/2023 terminating the agreement dated 17/05/2022 in between the appellant and third respondent and also seeking for an issue of writ of mandamus to the 2[nd] respondent, the Chief Engineer, Public Works Department to issue approval of the revised estimate so as to enable the appellant to commence the execution of work comprised in the agreement No.SE(K) 18/2022-23 dated 17/05/2022. 2. The facts in brief is as follows: The work was originally awarded to Mr.Faiz.M.D of Kasaragod. But that was terminated at the risk and cost of the said person, at the time when the application seeking revision of W.A.No.1020/2023 4 schedule of work consequent to the enhancement of the width of the road from 3.5 meters to 5.5 meters was pending consideration before the 2[nd] respondent, Chief Engineer, PWD (Roads), Thiruvananthapuram. After inviting re-tender, selection notice was issued to the appellant. Consequent to that, appellant executed agreement dated 17/05/2022 with third respondent on providing performance guarantee of Rs.10,72,500/- and an additional performance guarantee of Rs.37,42,802/- in accordance with Ext.P1 selection notice. It is alleged by the appellant that when the work was in progress, the third and the fourth respondents proposed to enhance the width of the road from 3.5 meters to 5.5 meters. Hence, the revision of estimate according to the appellant has become essential and necessary as contemplated under Clause 2111 of PWD Manual Revised Edition, 2012. It is alleged that the tender notification was issued when the proposal for revision of estimate was pending consideration of the 2[nd] respondent. It is the case of the appellant that based on Ext.P4 detailed estimate of the work, the W.A.No.1020/2023 5 initial levels of the work were recorded by the appellant as per Ext.P5 in the presence of the 6[th] respondent, the Assistant engineer and other officials. It is alleged that Ext.P5 was submitted to the 6[th] respondent along with Ext.P6 letter dated 14/07/2022. Hence the appellant could commence the work only if Ext.P5 initial levels were reported to the Chief Technical Examiner (CTE). But the respondent withheld initial levels without reporting to the CTE and even now Ext.P5 initial levels were not reported to CTE. 6[th] respondent as per Ext.P7 letter dated 18/07/2022 directed the appellant to record the initial levels of the road at the width of 8 meters deviating from the provisions of work contemplated in Ext.P4 detailed estimate. Thereafter, the 5[th] respondent issued Ext.P8 letter dated 20/07/2022 reiterating the directions in Ext.P7 letter. It is contended that without considering any of the contentions raised by the appellant, the 4[th] respondent without allowing the appellant to execute a supplementary agreement, gave Ext.P13 letter to the third respondent recommending to terminate the W.A.No.1020/2023 6 contract with the appellant at the risk and cost of the appellant and to black list the appellant. Thereafter appellant submitted representation to the third respondent and as per Ext.P15, appellant was informed that unless he commences the work within seven days, coercive action would be initiated against him. On getting the letter, appellant submitted a representation requesting to get the approval of the revised estimate for enabling him to commence the work. But it was not heeded and Ext.P17 letter was issued by the third respondent. Thereupon, appellant filed W.P.C No.40025 of 2022 and this Court directed the third respondent to consider the representation filed by the appellant after considering the issue and pass a reasoned order within two weeks as per Ext.P19 judgment. Pursuant to Ext.P19 judgment the third respondent rejected the representation filed by the appellant by Ext.P20 order. But, without any further action, the request made was rejected as per Ext.P21 dated 05/01/2023 terminating the contract. Challenging Ext.P21, writ petition was filed. W.A.No.1020/2023 7 3. 5[th] respondent, on the other hand, contended that the width of the road proposed to be constructed is 3.80 meters (width of tarring portion) and not 3.50 meters. The proposal was made for improving the road to BM and BC standards with a width of 3.80 meters wide carriage way, apart from concrete drains, culverts etc. But, when the work was started by the previous contractors, there was request from the people of the locality as well as Member of Legislative Assembly, to the department to form a carriage way (tarring width) to 5.50 meters instead of 3.80 meters proposed in the estimate. The department agreed for considering the proposal. During that time, the then contractor was doing the work very slowly and hence department terminated the contract at his risk and cost and consequent to that, the proposed revised estimate also cancelled and department decided to carry out the work as envisaged in the original sanctioned estimate with 3.80 meter wide road and the balance work awarded to the appellant was tendered accordingly. The contention of the 5[th] respondent is that the attempt of the W.A.No.1020/2023 8 appellant is to make out a case on the basis of the claim raised by the previous contractor for revision of estimate on the basis of the earlier demand for widening the carriage way to 5.50 meters which is not in force at all, since that was cancelled after the termination of the previous contract. It is also contended that if any of the quantities so worked out exceeds the quantities in the agreement, the contractor is bound to execute the said items of work at his agreed rates till 125% of the agreed quantity and he is entitled to get negotiated rates for quantities executed above 125% based on agreement condition. 4. After hearing both sides, the learned Single Judge found that the appellant executed an agreement in pursuance of Ext.P1 selection notice with respondent No.3 and is bound by the agreement conditions. But the appellant is relying on Ext.P3 proforma of the work issued by the Superintending engineer as against the contract with the previous contractor and consequent detailed estimate in regard to the same. It is also observed that though a proposal was made at the request of the member of the W.A.No.1020/2023 9 legislative assembly to widen the carriage way to 5.8 meters while the work was being carried out by the previous contractor it was terminated. Later, proposal made for widening the carriage way was given up and tender was invited with a carriage way of 3.8 meters and the appellant participated in the tender formalities knowing the nature of the work to be carried out. It is also found that though in the communication issued by the Superintending engineer and other authorities it is stated that the level was to be done as 8 meters from 5.50 meters it never directed the appellant to carry out any work by extending the level to 5.50 meters and further to 8 meters. It was found that there is no deviation from the award of the contract to the appellant as per Ext.P1 selection notice. Ultimately, it has been found that appellant has not made out a case of arbitrariness and illegality for enabling this Court to make interference with respect to Ext.P21 termination order passed by respondent No.3. The decision reported in **State of Kerala v. M.K.Jose : 2015 (9) SCC 433** is also relied on. W.A.No.1020/2023 10 5. Aggrieved by the same, the appellant filed this writ appeal. One of the arguments advanced by the learned counsel for the appellant is that appellant cannot commence the work since the initial level is not approved by CTE and it is his contention that the respondent wanted to terminate the contract in one way or the other. The respondent wanted to award the work to Ooralunkal Labour Co-operative Society and with this motive the contract with appellant is terminated at his risk and cost without any reason. 6. It is well settled that writ jurisdiction under Article 226 of the Constitution can be invoked only if appellant could make out any case of illegality or arbitrariness justifying interference. ## **Radhakrishna Agarwal v. State of Bihar : 1977 KLT Online** **1153 (SC)** laid down the proposition that when the State or the officers purport to operate within the contractual field and only grievance of the citizen could be that the contract between the parties is broken when the action complained of, the appropriate remedy is not by way of a petition under Article 226 of the W.A.No.1020/2023 11 Constitution. In paragraph 24 of **Har Shankar and Ors. v. The Dy. Excise and Taxation Commissioner and Others : MANU/SC/0321/1975 : [1975] 3 SCR 254** it has been held that a concluded contract must be held to have come into existence between the parties and a writ petition is not an appropriate remedy for impeaching contractual obligations. In **Banchhanidhi Rath v. The State of Orissa and Others : AIR** **1972 SC 843** it has been held in para 17 that a contractual employment could not be enforced under Article 226 of the Constitution. In **Lekhraj Satramdas Lalvani v. Deputy Custodian – cum – Managing Officer and Others : MANU/SC/0010/1965** it has been held that writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ court is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits W.A.No.1020/2023 12 of their jurisdiction. Hence, it is held that any duty or obligation falling upon a public servant out of a contract entered into by him as a public servant cannot be enforced by the machinery of writ under Article 226 of the Constitution. 7. But, as has been found by the learned single Judge, when the tender was confirmed with the appellant and agreement was executed, appellant is duty bound to complete the work as agreed upon between the parties. As per Ext.P2 proforma of the work, a milestone is fixed with regard to the rate of progress and consequent to which appellant had to attain 25% at the end of third month, 75% at the end of sixth month and 100% at the end of 8[th] month. Admittedly, the appellant could not attain the milestone prescribed as per the agreement executed by and between the parties. If the work is not carried out by the appellant in terms of the agreement, the tender authority is vested with the power to terminate the work. That is what has been done by the respondent in the present case. There appears to have no arbitrariness or illegality in the action W.A.No.1020/2023 13 taken by the respondent. So we do not find any illegality or impropriety in the impugned judgment passed by the learned Single Judge. In the result, writ appeal dismissed. However, liberty is given to the appellant to resort to appropriate proceedings against termination and the consequential steps taken by the respondent. All the contentions raised by the appellant before this Court are left open. (sd/-) ## **S.V.N.BHATTI ACTING CHIEF JUSTICE** (sd/-) **M.R.ANITHA JUDGE** jsr