M/S. J AND B ENGINEERING AND CONSTRUCTION COMPANY v. KERALA WATER AUTHORITY

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Single Judge
Judgment Date: 2023-07-26
Court Decision / Holding: Ext. P18 in WP(C) No.15649/2023 is set aside. The 3rd respondent is directed to reconsider and pass appropriate orders on Exts. P16 and P17 after affording the petitioner a hearing, within one month from receipt of a stamped copy of the judgment. In light of this, no further directions were deemed necessary in WP(C) No.15067/2023. WP(C) Nos. 15067/2023 and 15649/2023 disposed of by common judgment.
Final Disposition: Ext.P18 set aside; directions to reconsider Exts.P16 and P17 with hearing; WP(C) No.15067/2023 disposed of with no further directions.

Parties to the Case

Appellants / Petitioners

M/S. J AND B ENGINEERING AND CONSTRUCTION COMPANY

Respondents

KERALA WATER AUTHORITY HEAD OFFICE, JALABHAVAN THIRUVANATHAPURAM, PIN - 695033
THE CHIEF ENGINEER SOUTHERN REGION HEAD OFFICE, JALABHAVAN KERALA WATER AUTHORITY THIRUVANATHAPURAM, PIN - 695033
THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY P.H. CIRCLE, COLLECTORATE KOTTAYAM, PIN - 686002
THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY P.H. CIRCLE, COLLECTORATE KOTTAYAM, PIN - 686002

Legal Representation & Advocates

Counsels for Petitioners

• ALIAS M.CHERIAN
• K.M.RAPHY
• BRISTO S PARIYARAM
• ARUN C.S.

Case Synopsis & Summary

Two related writ petitions, WP(C) Nos. 15067/2023 and 15649/2023, were heard together before the Kerala High Court and disposed by a common judgment of Justice P.V. Kunhikrishnan on 26 July 2023. The petitioner, M/S J and B Engineering and Construction Company, had entered into Ext. P1 with the 3rd respondent for pipeline works, claiming to have laid 32 km of pipes and supplied materials for 51 km. The project stalled for want of road-cutting permission from local authorities, and the petitioner contended that road-cutting permissions were pending with the Gram Panchayat and PWD due to public obstruction. Ext. P3 extended the contract period to 31 December 2022, but no road-cutting permission was obtained. Petitions sought: (i) extension of the contract until 31.12.2023; (ii) directions to obtain road-cutting permissions; (iii) consideration of Exts. P14–P16 and protection against coercive action; and (iv) other appropriate reliefs. The respondents disputed the extension and termination of the contract, noting Ext. P18 terminated the contract despite pending representations in Exts. P12–P17. The court stayed coercive steps and, after examining Exts. P16–P18, held Ext. P18 to be inadequately reasoned. It directed the 3rd respondent to reconsider Exts. P16–P17 after hearing, within a month, with no further directions in WP(C) 15067. WP(C) 15649/2023 was accordingly disposed with a similar effect.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner argued for extension of the Ext. P1 agreement till 31.12.2023, insistence on road-cutting permissions from Gram Panchayat and PWD prior to extension, and consideration of Exts. P16–P17 with a stay on coercive action until resolution. They contended that without road-cutting permission, further work is impracticable and sought timely relief to avoid termination and ensure project continuity.

Contentions of Respondents

Respondents contended that termination under Ext. P18 was valid and that extensions could not be granted without road-cutting permissions; they highlighted pending approvals and the requirement for compliance with procedural prerequisites before extending the contract. They maintained that Ext. P18 reflected a bona fide decision in light of practical impediments and sought to sustain orderly contract termination and resolution through the official channels.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 WP(C) NO. 15067 OF 2023`** ## **`PETITIONER:`** ``` M/S. J AND B ENGINEERING AND CONSTRUCTION COMPANY KUTTOOR P.O, THIRUVALLA PATHANAMTHITTA DISTRICT, PIN - 689106 REPRESENTED BY ITS PARTNER K.A. ABRAHAM ``` ``` BY ADVS. ALIAS M.CHERIAN K.M.RAPHY BRISTO S PARIYARAM ARUN C.S. ``` ## **`RESPONDENTS:`** - `1 KERALA WATER AUTHORITY HEAD OFFICE, JALABHAVAN THIRUVANATHAPURAM, PIN - 695033 REPRESENTED BY ITS MANAGING DIRECTOR` - `2 THE CHIEF ENGINEER SOUTHERN REGION HEAD OFFICE, JALABHAVAN KERALA WATER AUTHORITY THIRUVANATHAPURAM, PIN - 695033` - `3 THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY P.H. CIRCLE, COLLECTORATE KOTTAYAM, PIN - 686002` - `4 THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY P.H. CIRCLE, COLLECTORATE KOTTAYAM, PIN - 686002 ADV.GEORGIE JOHNY, SC` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2023, ALONG WITH WP(C).15649/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.15067 & 15649 of 2023 **2** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 WP(C) NO. 15649 OF 2023 ``` ## **`PETITIONER:`** ``` M/S. J AND B ENGINEERING AND CONSTRUCTION COMPANY KUTTOOR P.O, THIRUVALLA PATHANAMTHITTA DISTRICT, PIN - 689106 REPRESENTED BY ITS PARTNER K.A. ABRAHAM BY ADVS.ALIAS M.CHERIAN K.M.RAPHY BRISTO S PARIYARAM ARUN C.S. ``` ## **`RESPONDENTS:`** ``` 1KERALA WATER AUTHORITY HEAD OFFICE, JALABHAVAN THIRUVANATHAPURAM, PIN – 695033 REPRESENTED BY ITS MANAGING DIRECTOR 2THE CHIEF ENGINEER SOUTHERN REGION HEAD OFFICE, JALABHAVAN KERALA WATER AUTHORITY THIRUVANATHAPURAM, PIN - 695033 3THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY P.H. CIRCLE, COLLECTORATE KOTTAYAM, PIN - 686002 4THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY P.H. CIRCLE, COLLECTORATE KOTTAYAM, PIN - 686002 SRI. GEORGIE JOHNY, SC (KWA) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2023, ALONG WITH WP(C).15067/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.15067 & 15649 of 2023 **3** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).Nos.15067 & 15649 of 2023 ---------------------------------------------Dated this the 26[th ] day of July, 2023** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment. I will narrate the facts in W.P.(C). No.15649/2023 first: Petitioner had executed Ext.P1 agreement with the 3[rd] respondent in connection with a pipe line work. It is the case of the petitioner that they had laid pipes for 32 km and supplied pipes for 51 km. It is the further case of the petitioner that the remaining work could not be completed for want for road cutting permission. The road cutting permission is to be obtained by the respondents from the local Panchayat/PWD. It is submitted that there is strong obstruction from the public in cutting the roads as well. Hence it is stated that the period of contract is extended by Ext.P3 order till 31.12.2022. But it is stated that, still no road WP(C).No.15067 & 15649 of 2023 **4** cutting permission was obtained. According to the petitioner, Exts.P4 to P8 and Exts.P12 to P17 are the requests submitted by them to extend the period of contract, to pay the part bill and to release the retention amount. It is stated that, although respondents 2 and 4 agreed in Exts.P10 and P11 joint meeting to solve all problems, no action was taken. According to the petitioner, the remaining pipes cannot be laid without getting the road cutting permission. The grievance of the petitioner is that the respondents are not prepared to appreciate that reality and blaming the petitioner for noncompletion of work. When the petitioner came to know that respondents are proceeding to terminate the contract, at the risk and cost of the petitioner, the petitioner filed W.P.(C). No.15067/2023 with following prayers: - i. To issue a writ of mandamus or any other appropriate writs, directions or orders directing the respondents 1 to 3 to extend the period of Ext.P1/agreement till 31.12.2023. - ii. To issue a writ of mandamus or any other appropriate writs, directions or orders directing the respondents 1 to 3 to obtain road cutting permission from the concerned Grama WP(C).No.15067 & 15649 of 2023 **5** Panchayath and also from public works department, before extending the period of Ext.P1/agreement. iii. To issue a writ of mandamus or any other appropriate writs, directions or orders directing the respondents 1 to 3 to consider and pass orders on Ext.P14 to P16/representations, respectively and after hearing the petitioner and till then no coercive action shall be taken on Ext.P1/agreement. - iv. To grant such other reliefs which are deem fit and proper in the facts and circumstances of the case. - v. To grant the cost of the petitioner for these proceedings from respondents. - vi. The petitioner may be dispensed with production of the English translated copies of vernacular documents in the writ petition. (SIC) 2. In the above case, this Court stayed further coercive steps against the petitioner and the interim order is in force. But it stated that the 3[rd] respondent, as per Ext.P18 order, terminated the contract. It is submitted that Ext.P18 order is passed while Exts.P12 to P17 representations are pending. It is also the case of the petitioner that Ext.P18 order is silent as to the non-receipt of road cutting permission from the concerned Grama Panchayath and Municipality. WP(C).No.15067 & 15649 of 2023 **6** Aggrieved by Ext.P18 order, W.P.(C). No.15649/2023 is filed with following prayers: - i. To issue a writ of Certiorari or any other appropriate writs, directions or orders calling for the records leading up to Ext.P18/order and set aside the same. - ii. To grant such other reliefs which are deem fit and proper in the facts and circumstances of the case. - iii. To grant the cost of the petitioner for these proceedings from respondents. - iv. The petitioner may be dispensed with production of the English translated copies of vernacular documents in the writ petition. ## (SIC) 3. When this writ petition came up for consideration, this Court was pleased to stay coercive proceedings against the petitioner. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 5. The main grievance of the petitioner is that Ext.P18 order produced in W.P.(C). No.15649/2023 is passed without considering Exts.P16 and P17. In Exts.P16 and P17, the main prayer is to extend the contract and to obtain the road cutting WP(C).No.15067 & 15649 of 2023 **7** permission for laying pipes. A perusal of ext.P18 would not show that the contention of the petitioners in Exts.P17 and P18 are adverted to. If that be the case, I am of the considered opinion that Ext.P18 in W.P.(C). No.15649/2023 can be set aside and there can be a direction to the 3[rd] respondent in that writ petition to reconsider the matter based on Exts.P16 and P17. Therefore, these writ petitions are disposed of in the following manner: 1. Ext.P18 in W.P.(C). No.15649/2023is set aside. 2. The 3[rd] respondent in W.P.(C). No.15649/2023 is directed to reconsider and pass appropriate orders in Ext.P16 and P17, after affording an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within one month from the date of receipt of a stamped certified copy of this judgment. The petitioner will produce a stamped certified copy of this judgment before the 3[rd] respondent for compliance. 3. In the light of the directions issued in W.P.(C). WP(C).No.15067 & 15649 of 2023 **8** No.15649/2023, no further directions are necessary in W.P.(C). No.15067/2023. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.15067 & 15649 of 2023 **9** ## **`APPENDIX OF WP(C) 15067/2023`** |`PETITIONER EXHIBITS`|`PETITIONER EXHIBITS`| |---|---| |`ExhibitP1`|`TRUE COPY OF AGREEMENT NO.06/SE/`| ||`PHCK/2021-22 FOR WORKS DATED`| ||`28/06/2021 SIGNED BETWEEN THE`| ||`PETITIONER AND 3RD RESPONDENT`| |`Exhibit P2`|`TRUE COPY OF ABSTRACT OF AGREEMENT NO.`| ||`PHCK/A3/1515/2019/PH2/AY1 DATED`| ||`19/07/2021 ISSUED BY THE 3RD`| ||`RESPONDENT`| |`Exhibit P3`|`TRUE COPY OF ORDER NO.`| ||`PHCK/A3/1515/2019/PH2/AY1 DATED`| ||`04/09/2022 ISSUED BY THE 3RD`| ||`RESPONDENT`| |`Exhibit P4`|`TRUE COPY OF LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 10/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 1ST`| ||`RESPONDENT`| |`Exhibit P5`|`TRUE COPY OF LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 10/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 2ND`| ||`RESPONDENT/CHIEF ENGINEER, KWA,`| ||`THIRUVANANTHAPURAM`| |`Exhibit P6`|`TRUE COPY OF LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 17/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 1ST`| ||`RESPONDENT`| |`Exhibit P7`|`TRUE COPY OF LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 17/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 2ND`| ||`RESPONDENT/CHIEF ENGINEER,`| ||`THIRUVANANTHAPURAM`| |`Exhibit P8`|`TRUE COPY OF THE LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 17/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 4TH`| ||`RESPONDENT`| |`Exhibit P9`|`TRUE COPY LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 20/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 3RD`| ||`RESPONDENT`| |`Exhibit P10`|`TRUE COPY OF EXTRACT OF THE MINUTES OF`| WP(C).No.15067 & 15649 of 2023 **10** ``` THE MEETING HELD ON 11/01/2023 IN THE CHAMBER OF THE 2ND RESPONDENT/CHIEF ENGINEER ``` ``` Exhibit P11TRUE COPY OF EXTRACT MINUTES OF THE MEETING HELD ON 28/02/2023 IN THE CHAMBER OF THE 4TH ``` ``` RESPONDENT/EXECUTIVE ENGINEER, KOTTAYAM ``` ``` Exhibit P12TRUE COPY OF THE REPRESENTATION DATED 12/04/2023 TO THE 3RD RESPONDENT ``` ``` Exhibit P13 ``` ``` TRUE COPY OF THE REPRESENTATION DATED 13/04/2023 TO THE DISTRICT COLLECTOR, KOTTAYAM ``` ``` Exhibit P14TRUE COPY OF REPRESENTATION DATED 28/04/2023 GIVEN TO THE MANAGING DIRECTOR OF KERALA WATER AUTHORITY ``` ``` Exhibit P15 ``` ``` Exhibit P16 Exhibit P17 ``` ``` TRUE COPY OF THE REPRESENTATION DATED 28/04/2023 GIVEN TO THE 2ND RESPONDENT TRUE COPY OF THE REPRESENTATION DATED 28/04/2023 GIVEN TO THE 3RD RESPONDENT TRUE COPY OF THE REPRESENTATION DATED 28/04/2023 GIVEN TO THE 4TH RESPONDENT ``` WP(C).No.15067 & 15649 of 2023 **11** ## **`APPENDIX OF WP(C) 15649/2023`** |`PETITIONER`|`EXHIBITS`| |---|---| |`Exhibit P1`|`TRUE COPY OF AGREEMENT NO.06/SE/`| ||`PHCK/2021-22 FOR WORKS DATED`| ||`28/06/2021 SIGNED BETWEEN THE`| ||`PETITIONER AND 3RD RESPONDENT`| |`Exhibit P2`|`TRUE COPY OF ABSTRACT OF AGREEMENT NO.`| ||`PHCK/A3/1515/2019/PH2/AY1 DATED`| ||`19/07/2021 ISSUED BY THE 3RD`| ||`RESPONDENT`| |`Exhibit P3`|`TRUE COPY OF ORDER NO.`| ||`PHCK/A3/1515/2019/PH2/AY1 DATED`| ||`04/09/2022 ISSUED BY THE 3RD`| ||`RESPONDENT`| |`Exhibit P4`|`TRUE COPY OF LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 10/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 1ST`| ||`RESPONDENT`| |`Exhibit P5`|`TRUE COPY OF LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 10/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 2ND`| ||`RESPONDENT/CHIEF ENGINEER, KWA,`| ||`THIRUVANANTHAPURAM`| |`Exhibit P6`|`TRUE COPY OF LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 17/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 1ST`| ||`RESPONDENT`| |`Exhibit P7`|`TRUE COPY OF LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 17/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 2ND`| ||`RESPONDENT/CHIEF ENGINEER,`| ||`THIRUVANANTHAPURAM`| |`Exhibit P8`|`TRUE COPY OF THE LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 17/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 4TH`| ||`RESPONDENT`| |`Exhibit P9`|`TRUE COPY LETTER JBEC/AGMNT NO.`| ||`06/2021 - 22 DATED 20/10/2022 ISSUED`| ||`BY THE PETITIONER TO THE 3RD`| ||`RESPONDENT`| WP(C).No.15067 & 15649 of 2023 **12** - `Exhibit P10 TRUE COPY OF EXTRACT OF THE MINUTES OF THE MEETING HELD ON 11/01/2023 IN THE CHAMBER OF THE 2ND RESPONDENT/CHIEF ENGINEER` - `Exhibit P11 TRUE COPY OF EXTRACT MINUTES OF THE MEETING HELD ON 28/02/2023 IN THE CHAMBER OF THE 4TH RESPONDENT/EXECUTIVE ENGINEER, KOTTAYAM` - `Exhibit P12 TRUE COPY OF THE REPRESENTATION DATED 12/04/2023 TO THE 3RD RESPONDENT` - `Exhibit P13 TRUE COPY OF THE REPRESENTATION DATED 13/04/2023 TO THE DISTRICT COLLECTOR, KOTTAYAM` - `Exhibit P14 TRUE COPY OF REPRESENTATION DATED 28/04/2023 GIVEN TO THE MANAGING DIRECTOR OF KERALA WATER AUTHORITY` - `Exhibit P15 TRUE COPY OF THE REPRESENTATION DATED 28/04/2023 GIVEN TO THE 2ND RESPONDENT` - `Exhibit P16 TRUE COPY OF THE REPRESENTATION DATED 28/04/2023 GIVEN TO THE 3RD RESPONDENT` - `Exhibit P17 TRUE COPY OF THE REPRESENTATION DATED 28/04/2023 GIVEN TO THE 4TH RESPONDENT` - `Exhibit P18 TRUE COPY OF THE ORDER NO. PHCK/A3/1515 /2019/PH2/AY1DATED 04/05/2023 PASSED BY THE 3RD RESPONDENT` - `Exhibit P19 TRUE COPY OF THE INTERIM ORDER DATED 05/05/2023 IN WP(C) NO.15067 OF 2023 PASSED BY THE THIS HON'BLE COURT`