K.P. THOMAS v. GOVERNMENT OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **THURSDAY ,THE 28TH DAY OF MARCH 2019 / 7TH CHAITHRA, 1941** ## **WP(C).No. 11107 of 2018** ## **PETITIONER/S:** **K.P. THOMAS, AGED 67 YEARS, S/O. LATE K.T. PHILIP, KOZHIMATTAM HOUSE, NEELAMPEROOR P.O., KOTTAYAM DISTRICT, PIN - 686 534. BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT/S:** - **1 GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HARBOUR ENGINEERING, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 SUPERINTENDING ENGINEER, HARBOUR ENGINEERING, CENTRAL CIRCLE, 2ND FLOOR, COCHIN CORPORATION SHOPPING COMPLEX CUM OFFICE BUILDING, HAJEE KCM MATHER ROAD, ERNAKULAM NORTH, KOCHI - 682 018.** - **3 NEELAMPEROOR GRAMA PANCHAYAT, EERA P.O, ALAPPUZHA, PIN 686 534, REPRESENTED BY ITS SECRETARY.** - **4 DEPUTY TAHSILDAR (RR), CHANGANACHERRY TALUK, CHANGANACHERRY P.O., KOTTAYAM DISTRICT, PIN 686 101.** **BY ADVS. GOVERNMENT PLEADER PRADEEP T.P. S.SREEDEV** **R1, R2 & R4 BY SRI. K.V.MANOJ KUMAR, SENIOR GOVERNMENT PLEADER. R3 BY SRI. T.P. PRADEEP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.11107 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner who is a contractor engaged by the State Government, seeking to quash Ext.P17 proceedings, whereby, based on the termination of the contract of the petitioner at the risk and cost, an amount of Rs.30,86,682/- is imposed as damages, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. In pursuance of the tender notice No.30/201213/HECC issued by the 2[nd] respondent, petitioner submitted sealed tender for the work “Up-gradation of Coastal Roads in Alappuzha District-Cherukara Kappelapalli-Cherukara Shappu Chira Road” in Neelamperoor Grama Panchayat, and selection notice dated 30.07.2012 was issued to the petitioner. According to the petitioner, immediately before executing the agreement and pursuant to the selection notice dated 30.07.2012, the land owners through whose properties the proposed road was passing, issued Ext.P1 notice to the petitioner, informing that they have not surrendered their properties for the construction of the road and hence, if the petitioner constructs the W.P.(C) No.11107 of 2018 3 road through their properties, petitioner would face the legal proceedings. Several other persons including the signatories in Ext.P14 representation have informed the petitioner that they have not surrendered their properties for the construction of the road and hence they would not permit the construction. It was thereupon that petitioner submitted Ext.P2 representation before the 2[nd] respondent, requesting to exempt him from executing the agreement in pursuance of the selection notice. 3. Later, as per Exts.P3 and P4 proceedings, the local people have obstructed the execution of the road, on the ground that, without providing drainage facilities to the road, the construction cannot be carried on. As per Ext.P5 proceedings dated 10.01.2014 of the 2[nd] respondent, the 3[rd] respondent was informed that the provisions for drainage would be incorporated in the schedule of the work, after getting the Administrative and Financial Sanction from the Government. Thereafter, as per Ext.P6 resolution dated 14.02.2014, it was resolved by the 3[rd] respondent in its meeting dated 08.07.2015 to construct the road by excluding the properties of the signatories in Ext.P14 representation. W.P.(C) No.11107 of 2018 4 4. Pursuant to the judgment of this Court in W.P. (C) No.9905 of 2015 dated 31.03.2015, Ext.P15 minutes dated 28.12.2015 were adopted by the 2[nd] respondent, holding that the alignment of the road would be shifted by excluding the properties of the signatories in Ext.P14 representation. Later, a new alignment was prepared by 2[nd] and 3[rd] respondents by excluding the properties of the signatories in Ext.P14 representation and as detailed in Ext.P16 sketch. While so, as per Ext.P17 proceedings, the 2[nd] respondent unilaterally quantified the liability of Rs.30,86,682/- against the petitioner and in pursuance of the same, Ext.P19 Revenue Recovery proceedings were initiated by the 4[th] respondent to recover the amount so quantified. 5. The 2[nd] respondent has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. It is stated thereunder that, the offer of the petitioner was 26.20% below the Probable Amount of Contract (PAC), and the petitioner was directed to execute the agreement after depositing a security amount of Rs.1,00,000/- and a Performance Guarantee of Rs.9,21,850/-, evident from Ext.R2(c). It was also stipulated in the selection W.P.(C) No.11107 of 2018 5 notice that the tender will be rejected, if the agreement is not executed within 30 days of dispatch and the work will be re-arranged as per Rules. Accordingly, petitioner was duty bound to execute the agreement on or before 01.09.2012. However, petitioner did not take any steps to execute the agreement. It was also clearly stipulated in the selection notice that any failure to do so would result in forfeiting of the Earnest Money Deposit (EMD) made by the petitioner, and he will be liable to pay the Government the entire loss that may be caused due to the re-tender or rearrangement of work, and all such losses shall be recovered from the contractor under the provisions of the Revenue Recovery Act. 6. That apart, as per Clause 13 of form 83-84, and also as per the preliminary agreement and petitioner's Selection Notice, petitioner shall execute an agreement for the work in PWD schedule form. Since the petitioner failed to do so, the EMD and Security Deposit shall be forfeited to Government and fresh tenders shall be called and the loss caused to the Government will be recovered, evident from Exts.R2(d) and R2(e), respectively. However, petitioner did not take any action to execute the agreement in terms of W.P.(C) No.11107 of 2018 6 the Notice Inviting Tender, Selection Notice etc. etc. But, it is admitted that, petitioner informed that the neighbouring property owners, viz., T.R.Nateshan, T.R.Narayanan, T.N.Suresh Kumar etc. objected the proposed construction activities, stating that they had not given any consent/willingness to construct the road through their property. The Department invited the tender on the assurance of hindrance free site for the said construction from the concerned local Panchayat. Technical Sanction was also issued by the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam for the said work. However, in spite of all the relevant sanctions and authority conferred on the respondents, petitioner was raising baseless arguments regarding the obstructions of site, which was existing in nearly 90 metres stretch of the said road, even before he executed an agreement. It is also pointed out that, the issue was sorted out by the 3[rd] respondent Grama Panchayat, which was informed to the petitioner as per Ext.R2(g) communication dated 18.02.2013. In spite of all these, petitioner refused to execute the agreement and start the work. 7. It is also pointed out that, Exts.R2(h) and R2(i) letters dated 20.05.2013 and 11.11.2013 were W.P.(C) No.11107 of 2018 7 issued to the petitioner requesting to execute the agreement. That apart, it is stated that, the alignment of the proposed road was pegmarked and the land was transferred to Harbour Engineering Department by the Panchayat, evident from Ext.R2(j). Other contentions are also raised, justifying the stand adopted by the respondents in proceeding against the petitioner to recover the amounts due as per Ext.P17. It is also pointed out that, the issues raised by the signatories in Ext.P14 representation were not genuine at all, and the petitioner refused to carry out the work, in spite of all earnest efforts made by the respondents, and therefore, the quantification made against the damages suffered is in accordance with law. 8. I have heard Sri. G.Sreekumar (Chelur) appearing for the petitioner, Sri. K.V. Manoj Kumar, learned Senior Government Pleader appearing for respondents 1, 2 and 4, and Sri. T.P. Pradeep, learned counsel appearing for the 3[rd] respondent Panchayat. Perused the pleadings and the documents on record. 9. The discussion of facts made above would make it clear that, even though a selection notice was issued to the petitioner, petitioner did not execute any agreement on the pretext that in respect of the 8 W.P.(C) No.11107 of 2018 road work tendered, disputes are raised by the local people with respect to the surrender of property by them, and therefore, petitioner was unable to execute the agreement, and carry on with the work. It is also pointed out that, certain deviations were made as per Ext.P16, which were also not finalized, basing on the afore-stated facts. The contention put forth by the petitioner is that, the 2[nd] respondent being the authority responsible for issuance of the tender, the said authority is not at liberty to quantify the damages against the petitioner, and according to the learned counsel, it is a settled principles of natural justice that, no one can be a judge of his own cause, and since respondents 2 and 3 are the responsible persons for the decision taken to construct the road by excluding the properties of the signatories in Ext.P14, 3 ½ years of issuing the selection notice, makes it clear that, there was no site, free from objections or obstructions. Therefore, according to the petitioner, Ext.P17 quantification made cannot be sustained under law, especially when it is made in violation of the principles of natural justice, having not provided any opportunity to the petitioner to raise objections to the same. It is also pointed out that, even though 9 W.P.(C) No.11107 of 2018 Ext.P18 objection was submitted, none of the aspects put forth thereunder were taken into account before issuing recovery notices as per the provisions of the Kerala Revenue Recovery Act. 10. _Per contra_ , learned Senior Government Pleader submitted that, Ext.P17 order quantifying damages is on the basis of termination of the contract of the petitioner as per the order dated 29.10.2014 at the risk and cost of the petitioner, which is not under challenge in this writ petition, and therefore, it was only by virtue of the provisions contained under the Notice Inviting Tender, which is the rule of the game and other provisions of the PWD Rules alone, quantification was done, which process was well aware to the petitioner while participating in the tender. Therefore, the contention advanced by the petitioner that the 2[nd] respondent is not vested with powers for quantifying the damages cannot be sustained under law. 11. I have evaluated the rival submissions made across the Bar. In my considered view, the question with respect to quantification of the damages by the very same authority was a subject matter of consideration by a Full Bench of this Court in ' _**Abdul**_ _**Rahiman v. Divisional Forest Officer**_ ' [1988 (2) KLT 290 W.P.(C) No.11107 of 2018 10 (F.B.)], and held that, there is no legal inhibition standing in the way of making such quantification, which is agreed to by the contracting parties. However, it was held thereunder that if the termination of the agreement is under challenge, then the very same authority cannot sit over the said order of termination and adjudicate it. But, fact remains, petitioner has not challenged the termination of the contract as per the order specified above. On the other hand, petitioner has only challenged the quantification made in Ext.P17. Therefore, one thing is clear, there is no legal inhibition standing in the way of the 2[nd] respondent in quantifying the damages, as is agreed upon. In my view, in contractual matters, strict view is to be adopted, failing which, the activities of the Government to protect public interest will be in peril and doldrums, and it will be difficult to enforce discipline and order among the successful bidders. 12. But, on analysing the issues and when such a large amount was involved in the subject matter, I am of the considered view that a notice of hearing should have been provided to the petitioner by issuing a show cause notice, proposing the damages. That exercise was not undertaken by the 2[nd] respondent before finally W.P.(C) No.11107 of 2018 11 quantifying the damages and no opportunity of hearing was provided to the petitioner in spite of submission of Ext.P18 objection. Matters being so, I find force in the contention advanced by the petitioner that, the order impugned is violative of the principles of natural justice in the matter of quantification of the amount, though the 2[nd] respondent has the power to adjudicate the issue. I am also of the view, when disputed questions of facts are involved, it is always fair and better to provide a notice and finalize the proceedings in order to avoid such technical issues raised by the aggrieved. Such a procedure will avoid delay in implementation of the order also. 13. Therefore, Ext.P17 communication is treated as a show cause notice issued to the petitioner, and the petitioner is given the liberty to file any additional objection to Ext.P17, within a month from the date of receipt of a copy of this judgment, and if any such additional objection is so filed, or not, notice of hearing shall be provided to the petitioner and finalize the entire proceedings within three months from the date of receipt of a copy of this judgment. Till such time, the coercive action pertaining to Ext.P19 series of notice issued under Sections 34 and 7 W.P.(C) No.11107 of 2018 12 of the Kerala Revenue Recovery Act shall be kept in abeyance. The writ petition is disposed of accordingly. **Sd/-** **SHAJI P.CHALY JUDGE** St/29.03.2019 W.P.(C) No.11107 of 2018 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE NOTICE DATED 17.8.2012**| |---|---| ||**SENT BY MR. T.R NADESAN, T.R NARAYANAN,**| ||**SURESH KUMAR T.N AND BINDU T.N. TO THE**| ||**PETITIONER.**| |**EXHIBIT P2**|**TRUE COPY OF THE LETTER DATED 22.8.2012**| ||**SUBMITTED BY THE PETITIONER BEFORE THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**25.11.2013 SUBMITTED BY MR.RAJAN KALATHIL**| ||**CHERUKARA ALONG WITH PT KUNJACHAN,**| ||**KALAPURAKKAL, CHERUKARA, BEFORE THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**10.12.2013 SUBMITTED BY MR.RAJAN KALATHIL**| ||**CHERUKARA AND 24 OTHERS BEFORE THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE LETTER DATED 10.1.2014 OF**| ||**THE 2ND RESPONDENT FORWARDED TO THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE RESOLUTION NO.IV(3) DATED**| ||**14.2.2014 PASSED BY THE 3RD RESPONDENT**| ||**PANCHAYAT.**| |**EXHIBIT P7**|**TRUE COPY OF THE LETTER DATED 19.2.204 OF**| ||**THE 3RD RESPONDENT FORWARDED TO THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P8**|**TRUE COPY OF THE DIRECTION DATED 28.4.2014**| ||**ISSUED BY THE 2ND RESPONDENT.**| |**EXHIBIT P9**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**8.5.2014 SUBMITTED BY THE PETITIONER BEFORE**| ||**THE 2ND RESPONDENT.**| |**EXHIBIT P10**|**TRUE COPY OF THE LETTER DATED 17.6.2014**| ||**ISSUED BY THE 2ND RESPONDENT.**| |**EXHIBIT P11**|**TRUE COPY OF THE RE-TENDER NOTICE DATED**| ||**23.12.2014 ISSUED BY THE 2ND RESPONDENT.**| |W.P.(C) No.11107 of 2018|14| |---|---| |**EXHIBIT P12**|**TRUE COPY OF THE PROCEEDING NO.A2.1467/15**| ||**DATED 20.7.2015 OF THE 3RD RESPONDENT**| ||**PANCHAYAT FORWARDED TO THE ASSISTANT**| ||**EXECUTIVE ENGINEER, HARBOUR ENGINEERING SUB**| ||**DIVISION, THOTTAPPALLY.**| |**EXHIBIT P13**|**TRUE COPY OF THE COMPLAINT DATED 28.12.2015**| ||**FILED BY SMT. T.N JAYASREE BEFORE THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P14**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**19.1.2015 FILED BY SMT. LAKSHMI BOBAN ALONG**| ||**WITH SMT.JAYASREE BEFORE THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P15**|**TRUE COPY OF THE MINUTES OF THE MEETING**| ||**HELD BY THE 2ND RESPONDENT DATED**| ||**28.12.2015.**| |**EXHIBIT P16**|**TRUE COPY OF THE REVISED SKETCH OF THE ROAD**| ||**CHERUKARA KAPPELAPPALLY CHERUKARA SHAPPU**| ||**CHIRA ROAD IN NEELAMPEROOR PANCHAYATH.**| |**EXHIBIT P17**|**TRUE COPY OF THE PROCEEDING DATED 2.12.2016**| ||**OF THE 2ND RESPONDENT.**| |**EXHIBIT P18**|**TRUE COPY OF THE OBJECTION DATED 27.12.2016**| ||**FILED BY THE PETITIONER BEFORE THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P19**|**TRUE COPY OF THE REVENUE RECOVERY**| ||**PROCEEDINGS DATED 16.3.2018 ISSUED BY THE**| ||**4TH RESPONDENT.**| |**EXHIBIT P20**|**A TRUE COPY OF THE TAX RECEIPT DATED**| ||**09.05.2018.**| |**RESPONDENT'S/S EXHIBITS:**|| |**EXHIBIT R2(A).**|**TRUE COPY OF GO(RT) NO.159/12/F&PD DATED**| ||**25.02.2012.**| |**EXHIBIT R2(B)**|**TRUE COPY OF TENDER NOTICE NO.30/2012-**| ||**13/HECC DATED 14.06.2012.**| |**EXHIBIT R2(C).**|**TRUE COPY OF SELECTION NOTICE NO.D3-**| ||**2144/12/HECC DATED 30.07.2012.**| |**EXHIBIT R2(D).**|**TRUE COPY OF THE RELEVANT PAGES OF FORM 83-**| ||**84 AND PRELIMINARY AGREEMENT.**| W.P.(C) No.11107 of 2018 15 **EXHIBIT R2(E). TRUE COPY OF THE RELEVANT PAGES OF FORM 8384 AND PRELIMINARY AGREEMENT. EXHIBIT R2(F). A TRUE COPY OF THE DETAILED ESTIMATE OF TECHNICAL SANCTION ESTIMATE. EXHIBIT R2(G). TRUE COPY OF LETTER NO.D3-2144/12/HECC DATED 18.02.2013. EXHIBIT R2(H). TRUE COPY OF LETTER DATED 20.05.2013. EXHIBIT R2(I). TRUE COPY OF LETTER DATED 11.11.2013. EXHIBIT R2(J). TRUE COPY OF PANCHAYATH DECISION NO.IV(5) DATED 30.01.2013. EXHIBIT R2(K). TRUE COPY OF REPRESENTATION DATED 25.11.2013. EXHIBIT R2(L). TRUE COPY OF REPRESENTATION DATED 15.03.2014. EXHIBIT R2(M). TRUE COPY OF TENDER NO.71/2014-15/HECC/E/TS DATED, 23.12.2014. EXHIBIT R2(N). TRUE COPY OF LETTER DATED 18.01.2014. EXHIBIT R2(O). TRUE COPY OF THE PANCHAYATH'S REQUISITION. EXHIBIT R2(P). TRUE COPY OF LETTER DATED 28.04.2014. EXHIBIT R2(Q). TRUE COPY OF LETTER NO.D3-2144/12/HECC DATED 17.06.2014. EXHIBIT R2(R). TRUE COPY OF THE JUDGMENT DATED 20.08.2014. EXHIBIT R2(S). TRUE COPY OF LETTER NO.D3-2144/12/HECC DATED 30.09.2014. EXHIBIT R2(T). TRUE COPY OF ORDER NO.A1-5538/13/HECC DATED 22.12.2014. EXHIBIT R2(U). TRUE COPY OF LETTER DATED 20.07.2013. EXHIBIT R2(V). TRUE COPY OF THE MINUTES OF MEETING HELD ON 28.12.2015. EXHIBIT R2(W). TRUE COPY OF ALIGNMENT DRAWING.** |W.P.(C) No.11107 of 2018|16| |---|---| |**EXHIBIT R2(X).**|**TRUE COPY OF ORDER NO.D3/2144/12/HECC DATED**| ||**29.10.2014.**| |**EXHIBIT R2(Y).**|**TRUE COPY OF JUDGMENT DATED 31.03.2015.**| |**EXHIBIT R2(Z).**|**TRUE COPY OF LETTER NO.D3-2144/12/HECC**| ||**DATED 02.12.2016.**| **//TRUE COPY// P.S. TO JUDGE** **St/-**