GEORGE MATHEW v. STATE OF KERALA

BY ADVS.SHRI.V.N.HARIDAS, SC, GURUVAYUR MUNICIPALITY BIJILY JOSEPH K.K.CHANDRAN PILLAI (SR.) V.V.JOSHI V.N.HARIDAS SAIFUDEEN T.S PARVATHY S.R. SRI. V.V.JOSHY, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15636 OF 2021 -3- JUDGMENT The petitioner is a contractor who has taken up certain works under a contract entered into with the 2nd respondent – Kerala Water Authority (KWA).

2. In a nutshell, the allegation of the petitioner is that, though he completed 93% of the works as entrusted to him, he was unable to complete the balance for reasons that are not attributable to him. He asserts that this was known to the Superintending Engineer of the ‘KWA’ also, who issued Ext.P7 order, relieving the petitioner of “executing the balance work and to short-close the contract with him and to rearrange the balance work.” (sic). He points out that the said order also thereafter says that the contract is “hereby terminated” (sic).

3. The petitioner argued that, when Ext.P7 WP(C) NO. 15636 OF 2021 -4- has been issued by the Superintending Engineer and the same has not yet been varied or modified, refusal of the ‘KWA’ to honour his Final Bills with respect to the works he has admittedly completed and to release the amounts towards Retention, Security and Guarantee Deposits and Testing Charges is illegal and unlawful. He thus prays that the respondents be directed to forthwith pay all eligible amounts under his Final Bills, Security and Guarantee Deposits, Testing Charges and Retention Amounts to him.

4. Sri.V.V.Joshy – learned Standing Counsel for the ‘KWA’, in response to the afore submissions of Sri.George Mathew – learned counsel for the petitioner, submitted that a counter affidavit has been placed on record, wherein, it has been explained that the petitioner has virtually abandoned the work WP(C) NO. 15636 OF 2021 -5- without commissioning it or by interconnecting with the existing pipeline. He added that the petitioner has also not returned the materials unused, and this is a flagrant violation of Clause 8.22 of the General Conditions, covering the contract.

5. Sri.V.V.Joshy explained that, as per the aforesaid Clause, every contractor is to conduct the charging and commissioning of the pipeline by interconnecting it with the existing pipeline, and to assure the Authority of the quality of the works executed. He argued that, when the petitioner has chosen not to do so, he cannot now claim any benefit, as has been sought for in this writ petition.

6. Sri.V.N.Haridas – learned Standing Counsel for respondents 6 and 7, submitted that his client has no comment to make on the controversy projected, because they have already WP(C) NO. 15636 OF 2021 -6- deposited the entire money with respect to the works with the ‘KWA’; and therefore, prayed that no further orders be issued against them.

7. When I evaluate and consider the afore rival submissions of the parties, it is indubitable that, had the contract been still in force, then the petitioner certainly could have been made to answer the remaining work, including the commissioning of the pipeline.

8. However, in this case, it is pertinent that the Superintending Engineer of the ‘KWA’ himself has issued Ext.P7 - which is dated

28.05.2021 - relieving the petitioner from the balance work and short-closing his contract, thus leading to the rearrangement of the balance work. The order, as rightly argued by the learned counsel for the petitioner, then says that the contract with the petitioner stands terminated. WP(C) NO. 15636 OF 2021 -7-

9. Obviously, therefore, the arguments of the respondents, that the petitioner ought to have completed the balance work, including by commissioning and charging the pipeline, cannot be accepted by this Court in any manner, particularly when it is unequivocally conceded by Sri.V.V.Joshy – learned Standing Counsel for the ‘KWA’, that the contract with the petitioner has been terminated consequent to Ext.P7 and the balance work rearranged as mentioned therein.

10. This is more so for the reason that the Municipality has already deposited the money, the petitioner’s claims must be confined to the work he has completed, namely to 93%, as is virtually admitted.

11. That said, as regards the allegation of the ‘KWA’, that the petitioner has not returned the unused materials, prima facie, this is also belied by Ext.P8 document produced by the WP(C) NO. 15636 OF 2021 -8- latter. I do not propose to speak on this any further on account of the same reasons as indited above, namely that the contract has already been terminated.

12. Apodictically, had there been any complaint against the petitioner - either that he has to continue with the balance work, or that he has not returned the unused materials - the Superintending Engineer would never had issued Ext.P7 relieving him of all his contractual obligations and then terminating the contract without any risk and cost being attached to him.

13. In the afore circumstances, I am of the firm view that the petitioner is entitled to relief. Consequently, I order this writ petition and direct the competent Authority of the ‘KWA’ to take up the Final Bills of the petitioner and WP(C) NO. 15636 OF 2021 -9- disburse eligible amounts under it; however, only with respect to the actual work completed by him, along with the Retention Amounts, Security and Guarantee Deposits, if any, and such other corollary payments as are entitled to him. The afore shall be done as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Sd/- DEVAN RAMACHANDRAN JUDGE WP(C) NO. 15636 OF 2021 -10- APPENDIX OF WP(C) 15636/2021 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 TRUE COPY OF WORK ORDER NO KWA/PHC/TSR/D1-211/2018 DATED 19.8.2018 ISSUED BY 4TH RESPONDENT TRUE COPY OF RELEVANT PAGES OF AGREEMENT NO 07/SE/PHC/TSR/2018-19 DATED 27.9.2018 ENTERED INTO BETWEEN PETITIONER AND 4TH RESPONDENT TRUE COPY OF REPRESENTATION DATED 18.12.2020 SUBMITTED BY PETITIONER TO 4TH RESPONDENT TRUE COPY OF LETTER NO D3-135/17-18 DATED 5.1.2021 ISSUED BY TH RESPONDENT TO PETITIONER TRUE COPY OF REPRESENTATION DATED 8.1.2021 SUBMITTED BY PETITIONER TO 5TH RESPONDENT TRUE COPY OF JUDGMENT DATED 15.3.2021 IN WPC NO 6491 OF 2021 TRUE COPY OF ORDER NO KWA/PHE/PSR/D1/1211/18 DATED 28.5.2021 PASSED BY 4TH RESPONDENT TRUE COPY OF MATERIAL RETURN NOTE DTD. 17.9.2021 ISSUED BY ASST.ENGINEER TRUE COPY OF LETTER NO-D3-135/2017- 2018 DTD 24.1.2022 ISSUED BY 5TH RESPONDENT EXHIBIT P10 TRUE COPY OF LETTER NO-D3-135/2017- 2018 DTD 14.2.2022 ISSUED BY 5TH WP(C) NO. 15636 OF 2021 -11- RESPONDENT EXHIBIT P11 EXHIBIT P12 EXHIBIT P13 TRUE COPY OF REPLY DTD 15.2.2022 SUBMITTED BY PETITIONER TO 5TH RESPONDENT TRUE COPY OF NOTICE DTD.10.2.2022 ISSUED BY FINANCING BANK TO PETITIONER. TRUE COPY OF LETTER NO.JS/305/2002/(VOL3) DTD.24/8/2022 ISSUED BY 4TH RESPONDENT RESPONDENT EXHIBITS EXHIBIT-R2(A) TRUE COPY OF THE NIT CONDITION 8.22 (TESTING OF COMPLETED WORK)