M/S. EVEREST INFRAVENTURES INDIA PVT. LTD.OR BABUKHAN MILLENNIUM CENTRE v. STATE OF KERALA

SRI. GEORGIE JOHNY, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2024, ALONG WITH WP(C).2544/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2310 OF 2024 & con.case 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 22ND DAY OF JANUARY 2024 / 2ND MAGHA, 1945 WP(C) NO. 2544 OF 2024 PETITIONER: M/S. EVEREST INFRA VENTURES INDIA PVT. LTD., BABUKHAN MILLENNIUM CENTRE, 6-3-1099/1100, NORTH BLOCKNO. 701, 7TH FLOOR, SOMAJIGUDA, HYDERABAD, TELANGANA STATE REPRESENTED BY ITS MANAGING DIRECTOR, K. ANINDITH REDDY, AGED 33 YEARS, S/O. KONDA VISHWESHWAR, REDDY., PIN - 500082 GEORGE MATHEW SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S. RESPONDENTS: 1 2 3 4 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT 'SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, P.H. CIRCLE, KERALA WATER AUTHORITY, MUVATTUPUZHA, PIN - 686670 THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY, PROJECT DIVISION, KATTAPPANA, IDUKKI DISTRICT, PIN – 685515 WP(C) NO. 2310 OF 2024 & con.case 4 5 THE FINANCE MANAGER & CHIEF ACCOUNTS OFFICER KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 SRI. GEORGIE JOHNY, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2024, ALONG WITH WP(C).2310/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2310 OF 2024 & con.case 5 JUDGMENT [WP(C) Nos.2310/2024, 2544/2024] The petitioner in these two cases – which are being heard together taking note of the analogous factual circumstances presented – is stated to be a company, which has entered into various contracts with the Kerala Water Authority (KWA).

2. According to the petitioner, even though they had procured their materials and have completed their part of the contract, to the extent to which they had expected to as per the stages specified, their part bills have not been honoured solely saying that they have not completed the work as per the agreed schedule. They assert that they are, in fact, incapacitated from working as per the said schedule because the KWA has not been able to obtain road cutting permits from the PWD and such other agencies, which own the roads; and hence that they are now entitled, even as per the contract, to the part bills as submitted by them. They, therefore, pray that the respondents be directed to immediately effect part payment towards the cost of materials supplied and the works executed by them until now, based on the contract value, as per the terms of the agreement entered WP(C) NO. 2310 OF 2024 & con.case 6 into between them and the 'KWA'.

3. In response, Sri.Georgie Johny – learned standing counsel for the 'KWA', however, submitted that the payment of part bills is not dependent upon the procurement and supply of materials, but on the actual execution of the work. He explained that there is a schedule of work as agreed to between the parties and that, it is only when they are completed and certified by the competent Authorities, will the part payments be released. He relied upon clause 8 of the contract, particularly clause 8.16 thereof, in substantiation; adding that, any other payment would amount to “Mobilisation Advance”, which is prohibited as per clause 8.8 of the said agreement. He, therefore, prayed that this writ petition be dismissed.

4. When I consider and evaluate the afore submissions, it is rendered limpid that the real disputation between the parties are not with respect to the terms of the agreement, or the nature of the work completed, but as to whether the 'KWA' has been able to obtain road permits. This is because, the petitioner specifically asserts that it is because the 'KWA' has not been able to obtain such permits, that they have been unable to complete the work and reach the targets as specified in the schedule. WP(C) NO. 2310 OF 2024 & con.case 7

5. If the afore assertions of the petitioner are true, obviously, they cannot be put to blame - even if it is assumed, for the sake of argument, that they have not been able to attain the amount of work as stipulated in the schedule between the parties. Indubitably, it is for the 'KWA' to look into this aspect and take a decision in terms of the request of the petitioner, after affording them necessary opportunities of being heard. In the afore circumstances, these writ petitions are disposed of with the following directions: (a) The competent Authority of the 'KWA' will immediately hear the petitioner and decide upon their allegation that they have been unable to complete the work as per the schedule, even though they have completed the procurement and supply of materials, solely because the 'KWA' has not been able to obtain the road permits from the competent Authorities. (b) While the afore exercise is completed, the competent Authority of the 'KWA' will be at liberty to impress upon the petitioner that road cutting permits have been obtained and will give them copies of the same; in which event, the petitioner will be obligated to complete the work as per the schedule and only then obtain the amounts under the bills. WP(C) NO. 2310 OF 2024 & con.case 8 (c) If, on the contrary, the KWA has been unable to obtain the road permits and are unable to give copies of the same to the petitioner during the afore hearing, then the bills shall be dealt with in terms of the contract de hors the schedule and subject to further terms therein and also the completion of the work finally as per law. (d) The afore exercise shall be completed by the competent Authority of the KWA as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. (e) I, however, make it clear that I have not entered into the merits of any other contentions of the rival parties and that all of them are left open to be decided appositely during the afore exercise. Sd/- DEVAN RAMACHANDRAN JUDGE WP(C) NO. 2310 OF 2024 & con.case 9 APPENDIX OF WP(C) 2544/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF RELEVANT PAGES OF NIT RE-E- TENDER NO: 07/2023-24/SE/PHC/MVPA WITH LAST DATE OF SUBMISSION ON 27.04.2023 Exhibit P1(A) TRUE COPY OF WORK ORDER DTD. 01.08. 2023 ISSUED BY 3RD RESPONDENT Exhibit P2 TRUE COPY OF RELEVANT PAGES OF RE-E-TENDER NO: 42/2023-24/SE/PHC/MVPA WITH LAST DATE OF SUBMISSION ON 16.06.2023 Exhibit P2(a) TRUE COPY OF WORK ORDER DTD.22.07.2023 ISSUED BY 3RD RESPONDENT Exhibit P3 TRUE COPY OF RELEVANT PAGES OF RE-E-TENDER NO: 63/2023-24/ SE/PHC/MVPA WITH LAST DATE OF SUBMISSION ON 14.07.2023 Exhibit P3(a) TRUE COPY OF WORK ORDER DTD. 18.08.2023 ISSUED BY 3RD RESPONDENT WP(C) NO. 2310 OF 2024 & con.case 10 APPENDIX OF WP(C) 2310/2024 PETITIONER EXHIBITS Exhibit p1 TRUE COPY OF RELEVANT PAGES OF NIT E- TENDER NO: WRD/KWA-CE(SR)/TR/8631/2022-5- 4-3/1 WITH LAST DATE OF SUBMISSION ON 19.06.2023 Exhibit p1(a) TRUE COPY OF WORK ORDER NO. 800/D2/2022/PHC-KTM/P3-KARUKACHAL DTD.01.08.2023 ISSUED BY 3 RD RESPONDENT Exhibit P2 TRUE COPY OF RELEVANT PAGES OF E-TENDER NO: WRD/KWA- CE(SR)/TR/8631/2022-26-19- 18/1 WITH LAST DATE OF SUBMISSION ON 7 22.06.2023 Exhibit P2(a) TRUE COPY OF WORK ORDER NO. 800/D2/2022/PHC-KTM/P2- NEDUMKUNNAM DTD.01.08.2023 ISSUED BY 3 RD RESPONDENT Exhibit p3 TRUE COPY OF RELEVANT PAGES OF 1 ST RE E- TENDER NO: WRD/KWA- CE(SR)/TR/8631/2022-5- 1-1/1 WITH LAST DATE OF SUBMISSION ON 04.07.2023 Exhibit p3(a) TRUE COPY OF WORK ORDER NO. 800/D2/2022/PHC-KTM/P4-KANGAZHA DTD. 01.08.2023 ISSUED BY 3 RD RESPONDENT Exhibit p4 TRUE COPY OF RELEVANT PAGES OF E-TENDER NO: WRD/KWA CE(SR)/TR/13162/2022-26-1-1/1 WITH LAST DATE OF SUBMISSION ON 10.07. 2023 Exhibit p4(a) TRUE COPY OF WORK ORDER NO. 1621/D1/2022/PHC-KTM DTD. 28.10. 2023 ISSUED BY 3 RD RESPONDENT