P. P. Abdul Nazir v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 22ND DAY OF JANUARY 2013/2ND MAGHA 1934** **WP(C).No. 5967 of 2012 (U) -------------------------------------** ## **PETITIONER(S):** **--------------------------** ## **P.P.ABDUL NAZIR, AGED 47 YEARS, S/O BEERAN, GOVERNMENT CONTRACTOR, PAZHAYAPUTHUVEETTIL HOUSE, PARIYAPURAM, PACHATTHIRI P.O, TIRUR, 676105MALAPURAM** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 6950001** **2. CHIEF ENGINEER, PWD, ROADS AND BRIDGES, NEAR MUSEUM, THIRUVANANTHAPURAM- 695001.** **3. THE SUPERINTENDING ENGINEER, ROADS AND BRIDGES, PWD, NORTH CIRCLE, KOZHIKODE-673635.** **4. THE EXECUTIVE ENGINEER, PWD, ROADS DIVISION, MANJERI-673701.** **BY ADV.SRI.NOUSHAD THOTTATHIL, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WP(C).No. 5967 of 2012 (U)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** - **EXT. P1: A TRUE COPY OF THE RELEVANT PAGES OF THE AGREEMENT NO SE(K) 39/2005-06 DATED 25-05-2005 EXECUTED BETWEEN THE PETITIONER AND THE GOVERNMENT** - **EXT. P2: A TRUE COPY OF THE ABSTRACT OF ORIGINAL AND REVISED ESTIMATE WITH EXPLANATION FOR DIFFERENCE IS QUANTITIES APPROVED BY THE 3RD REESPONDENT, SUPERINTENDENT ENGINEER ALONG WITH HIS COVERING LETTER WITH NO DC 5/96/2005 DATED 11/7/2005** **EXT. P3: A TRUE COPY OF THE COMPLETION CERTIFICATE DATED 09-08-2007 ISSUED BY THE 3RD RESPONDENTS** **EXT. P4: A TRUE COPY OF THE JUDGMENT DATED 31-03-2010 OF THIS HON'BLE COURT IN W.P(C) NO 34273/2009** - **EXT. P5: A TRUE COPY OF THE LETTER DATED 22-07-2011 SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT, ALONG WITH THE STATEMENT AND DETAILS OF THE BILL** - **EXT. P6: A TRUE COPY OF THE G.O. DATED 07/02/2012 ISSUED TO THE PETITIONER** - **EXT.P7: A TRUE COPY OF THE I.A.NO.11223/2010, IN W.P.(C).NO.3473/2009 FILED FOR EXTENSION OF TIME FOR COMPLIANCE OF EXHIBITS P4 JUDGMENT.** - **EXT.P8: A TRUE COPY OF THE CHECK MEASUREMENT REPORT FORWARDED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE CHIEF TECHNICAL EXAMINER, EVIDENCING QUANTITY OF THE MATERIALS CHECK MEASURED IS UPDATE TO THE QUANTITY, WHICH WAS OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** **EXT.P9: A TRUE COPY OF THE LETTER OF CREDIT DATED 31/03/2012, ISSUED FOR MAKING PAYMENT TO COMPLY WITH THE DIRECTIONS IN EXHIBIT P4 JUDGMENT.** ## **RESPONDENTS' EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **AS** ## **A.M.SHAFFIQUE, J** ## **---------------------------------------** ## **W.P. (C) NO. 5967 of 2012** **----------------------------------------** Dated this the 22[th] day of January, 2013 ## JUDGMENT This writ petition is filed by the contractor who remains unpaid despite the fact that he had completed the work as early as in 2007. 2. The main contention of the petitioner is that an amount of Rs.21,51,897/- is outstanding and due to him for the work done by him in respect of the road work from K.M. 0/000 to 5/000 (first reach in Malappuram District). 3. The petitioner quoted 31.33% below the estimated amount of Rs.69 lakhs. It seems that though the contract was for Rs.49,90,422/- against the estimate of Rs.67,75,399/-, when the work was completed the total amount of the work came to Rs.86,21,428/-. After completion of work, by Ext.P3 the Superintending Engineer PWD Roads and Bridges had confirmed that the entire work had been completed at the revised estimate of Rs.86,21,428/-. 4. Since the amount was not paid, the petitioner approached this Court and by Ext.P4 judgment in 2 ## **W.P. (C) NO. 5967 of 2012** WPC.No.34273/2009 this Court directed the first respondent to take appropriate action in accordance with law, within a stipulated time. 5. In compliance with the above judgment Ext.P5 communication is issued by the Executive Engineer to Chief Engineer stating that the revised estimate has to be approved for funds to the tune of Rs.22,13,411/- and letter of credit has to be sanctioned for Rs. 21,02,077/-. It is stated in Ext.P5 that during annual audit of Accountant General, objection was raised regarding the procedure adopted for sanction of revised estimate after deducting the below quoted rate and approval ought to have been obtained from the competent authority for making the payment for the executed quantity. It seems that since actual amount was above the estimated amount the payment was not made. 6. Subsequently the Government passed Ext.P6 order stating that an amount of Rs.21,51,892/- had to be deducted from the total amount payable. But no specific reason is stated to deny the payment other than referring to the factual aspects in **W.P. (C) NO. 5967 of 2012** 3 the matter and referring to the earlier proceedings. 7. Ext. P6 is impugned in this writ petition and the petitioner seeks for a direction to effect payment without any deduction. 8. Counter affidavit is filed by the first respondent inter alia contending that the payment was made after deducting Rs.21,51,897/- on account of the fact that the thickness in the road work was less than what was recorded. On that premise, the learned Government Pleader contends that being a dispute relating to a contract this Court should not interfere in the matter and the petitioner cannot seek the directions as prayed for. 9. Heard the learned counsel for the petitioner Smt. M.A. Vaheeda Babu and learned Government Pleader. On behalf of the petitioner it is argued that the liability to pay the amount claimed is admitted in Exts.P3 and P5. Even in the earlier proceedings which culminated in Ext.P5, there was no dispute regarding the liability to pay the amount whereas the only objection was that the Government has not sanctioned the funds on account of the objection from the Accountant General stating 4 ## **W.P. (C) NO. 5967 of 2012** that the total amount of work exceeded the probable amount of contract value. 10. It cannot be disputed that the total value of the work done by the petitioner is Rs.85,19,108/- after all deductions as evident from Exts.P3 and P5, but the fact remains that it was more than the estimated cost. That by itself does not mean that the contractor is not entitled for the payment especially when it is certified by the concerned department. Once the work is approved and certified even if it is more than the PAC, the contractor is entitled to get the payment, unless other wise stated in the agreement. 11. Then the only question is whether the objection or dispute now raised by the respondents is bonafide or not. Having regard to the facts and circumstances as evident from Ext.P3,P5 and P6 I could not find any specific ground which indicates that the bill amount was not paid on account of lesser thickness of the road. This ground I do not think is a bonafide dispute and the writ petition cannot be thrown out on the ground that there are disputed questions relating to the contract. **W.P. (C) NO. 5967 of 2012** 5 12. Learned Government Pleader however, tried to convince this Court that being a contractual matter it may not be possible for this Court to interfere in the case and direct payment, over looking the order passed as Ext.P6. I do not think that this Court does not have the jurisdiction to direct payment of amounts which are admittedly due to the petitioner. Though a dispute is raised, this Court has jurisdiction to consider whether the dispute is bonafide or not. I have already indicated that the dispute by raised in the counter affidavit is not bonafide. 13. The fact remains that the petitioner had completed the work and since there is no bonafide dispute on the quantum of the work done, the petitioner is entitled for the balance amount as claimed. It is trite law that Court can consider disputed questions relating to contractual issues as held by the by Supreme Court in ABL International Limited And Another vs. Export Credit Guarantee Corporation of India And Others (2004 3 SCC). That being the situation, I am of the view that this writ petition is only to be allowed. In the result Ext.P6 is quashed. The respondents 1 and 2 6 ## **W.P. (C) NO. 5967 of 2012** shall pay to the petitioner the balance amount of Rs.21,51,897/within a period of 2 months from the date of receipt of a copy of this judgment. If there is failure to pay the aforesaid amount within the said period it shall carry interest at the rate of 9% per annum from the date of this judgment. A.M.SHAFFIQUE, J JUDGE AS