P. M. Muneer v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** ## **WP(C).No.24886 OF 2012(I)** ## **PETITIONER:** **P.M.MUNEER AGED 41 YEARS** **PWD CONTRACTOR,KAMBAR HOUSE,BEDRADUKA.P.O,KASARAGOD DISTRICT.** **BY ADVS. SRI.K.L.VARGHESE (SR.) SRI.RANJITH VARGHESE SRI.RAHUL VARGHESE SMT.SANTHA VARGHESE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,FISHERIES & PORTS(B)DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.** - **2 THE SUPERINTENDING ENGINEER HARBOUR ENGINEERING (NORTH CIRCLE),KOZHIKODE-673006.** - **3 THE EXECUTIVE ENGINEER HARBOUR ENGINEERING (NORTH CIRCLE),KOZHIKODE-673006.** - **4 THE CHIEF ENGINEER HARBOUR ENGINEERING DEPARTMENT,THIRUVANANTHAPURAM.** - **5 THE SECRETARY FINANCE DEPARTMENT,GOVT.OF KERALA,THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER GP. SHRI. RON BASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.24886 OF 2012(I)** **2** ## **JUDGMENT** **Dated this the 3rd day of December 2019** This writ petition is filed seeking the following prayers: _“(i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 1, 4 and 5 to grant the benefit of Ext.P3 circular as per their commitment in Exts.P5 and P6 and considering the endorsement of the 2[nd] respondent about the 'good' performance of the petitioner.”_ 2. Heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that petitioner is an 'A' class registered contractor of the Kerala Public Works Department who has been entrusted a work of construction of Quay on Pile and Slab, Auction Hall and Reclamation at the Fishery Harbour Project at Ponnani by Ext.P1 work order dated 22.10.2005. The learned counsel for the petitioner submits that the work was undertaken on the basis of the 1999 schedule of rates. It is stated that due to unprecedented rise in the cost of steel and cement, the petitioner was unable to carry out the work. It is stated that at the relevant time, 302 works including 89 bridges, 122 roads and 91 buildings had come to a stand still due to the unexpected rise in the **WP(C).No.24886 OF 2012(I)** **3** cost of materials and Ext.P3 circular was issued specifying that works which could not be completed for no fault of the contractors would be permitted to be completed granting revised rates in respect of cement and steel. It is stated that without considering Ext.P3 circular, the contract given to the petitioner was terminated with risk and cost by Ext.P4. The petitioner challenged the said termination before this Court filing W.P(C) No.13053/2008. While so, on the basis of a meeting convened by the Minister for Fisheries and for Local Administration, Ext.P5 letter was issued revoking the termination and requiring the petitioner to complete the balance work. It was stated in Ext.P5 that an amount of Rs.45,000/- should be paid as fine by the petitioner and that the balance work is to be completed by 31.12.2008. It is stated that the petitioner recommenced the work on the basis of Ext.P5, but heavy floods occurred and damage was caused to the completed work. It is submitted that Ext.P6 report of the Chief Engineer would make this factual aspect clear. It is stated that the work was ultimately completed on 31.08.2009 and Ext.P7 certificate was issued to that effect. However, the benefit of revised rate for cement and steel at 2008 schedule of rates without tender excess was not granted **WP(C).No.24886 OF 2012(I)** **4** to the petitioner as held out in Ext.P5 which resulted the petitioner approaching this Court with this writ petition. 4. A counter affidavit has been placed on record by the 1[st] respondent contenting that Ext.P5 had been issued on the specific condition that revised rate of cement and steel as per 2008 schedule of rates without tender excess will be paid to the contractor for the balance work, if the Finance Department agrees. It is stated that there was a specific condition in Ext.P5 that the work should be complete in all respects within 31.12.2008. It is stated that since the petitioner did not complete the balance work before 31.12.2008, he is not entitled to the revised schedule of rates of cement and steel. 5. The petitioner has filed a reply affidavit reiterating that there was flood and tidal waves on 17.10.2008 and 18.10.2008 and that much of the work which have been done by the petitioner had been washed away as a result. It is stated that the time for completion of the work was therefore, extended without any fine and the petitioner had completed the work. 6. Relying on the decision of this Court in _**B.Anas Babu and Ors.**_ _**v Union of India and Ors. 2018 (1) KLT 437**_ and an unreported decision **WP(C).No.24886 OF 2012(I)** **5** of this Court in W.P(C) No.6982 of 2011, the learned counsel for the petitioner would contend that the factual aspects and the effect of the escalation of the price of cement and steel had been taken judicial note of by this Court and termination of contracts during the relevant period at risk and cost had been set aside. It is further submitted that in several other cases, the benefit of Ext.P3 circular had been granted to persons similarly situated like the petitioner and even to contractors who had undertaken work under the 2004 schedule of rates and who had completed the works subsequent to the completion of the work by the petitioner. Specific reference is made to the Government Order G.O.(Rt) No.1462/11/PWD dated 27.10.2011. 7. I have considered the contentions advanced on either side. The contention of the petitioner is with regard to the applicability of Ext.P3 circular in respect of the works admittedly completed by the petitioner pursuant to Ext.P5. It was the specific case of the petitioner that petitioner had challenged Ext.P4 order of termination at risk and cost and that thereafter, on the basis of a meeting held by Government Officials and Ministers, it was decided that the **WP(C).No.24886 OF 2012(I)** **6** termination was not on account of any fault of the petitioner and that the petitioner is to be permitted to complete the work. It is stated that on the said basis, the petitioner had been required to withdraw the writ petition filed by him against Ext.P4 and to proceed with the work. The petitioner contends that even after he had resumed the work pursuant to Ext.P5, natural calamities had occurred which are referred in Ext.P6 report of the Chief Engineer of the Harbour Engineering Department. It is stated that in view of the fact that benefits of Ext.P3 had been granted to similarly situated contractors taking note of the factual situations prevalent at the relevant time, it is only just and proper that the issue is considered by the Government and an appropriate decision is taken with regard to the claim of the petitioner. 8. Having considered the contentions advanced, I am of the opinion that since the petitioner has raised a specific case that it was not on account of any fault on his part that the delay in completion of the work occurred and that the benefit of Ext.P3 circular had been extended to identically placed contractors, it is for the Government to take an appropriate decision in the petitioner's case as well. In **WP(C).No.24886 OF 2012(I)** **7** case the petitioner approaches the 1[st] respondent with a representation pointing out his grievances and seeking the benefit of Ext.P3, the Government shall consider the contentions of the petitioner with specific reference to the reports placed by the Chief Engineer of the Harbour Engineering Department as evidence by Exts.P6 and P10. The benefit granted to other similarly situated contractors especially by the Government order dated 27.10.2011 shall also be taken note of. The petitioner shall be given an opportunity of hearing and the material to be produced by him shall be examined and an informed decision shall be taken by the Government in accordance with law. Appropriate orders shall be passed after hearing the petitioner also within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN JUDGE** **SVP** **WP(C).No.24886 OF 2012(I)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF WORK ORDER DT.22.10.2005 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** **EXHIBIT P2** **TRUE COPY OF AGREEMENT DT.16.11.2005 ENTERED INTO BETWEEN THE PETITIONER AND THE 2ND RESPONDENT ALONG WITH PROCEEDINGS DT.16.11.2005** **EXHIBIT P3 TRUE COPY OF CIRCULAR DT.10.10.2008 ISSUED BY THE GOVERNMENT OF KERALA, FINANCE (IND. & PWD (B) DEPARTMENT)** - **EXHIBIT P4** **TRUE COPY OF THE ORDER OF TERMINATION DT.31.03.2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P5 TRUE COPY OF LETTER DT.10.06.2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P6 TRUE COPY OF THE REPORT OF THE CHIEF ENGINEER PURSUANT TO THE INSPECTION ON 05.12.2008 AND 06.12.2008** **EXHIBIT P7** **TRUE COPY OF CERTIFICATE DT.03.05.2010 ISSUED BY THE 2ND RESPONDENT**