M/S THERUVATH BUILDERS v. THE KERALA ROAD FUND BOARD

The petitioner is stated to be a Firm, who had undertaken the work relating to improvements of ‘Changanassery – Kaviyoor Road 0/000 to 13/300’ in the Pathanamthitta District. They say that they have completed 80% of the work, but had been incapacitated from completing the balance, since the road in question had been handed- over by the 1st respondent - Kerala Road Fund Board to the Kerala Water Authority (KWA) for installing pipes. They say that, however, without considering any of these aspects, Ext.P12 has been now issued by the Project Director terminating the contract, that too, at their risk and cost; and therefore, that they have been constrained to approach this Court, through this Writ Petition.

2. Sri.Vijayamohanan P.K. – learned counsel for the petitioner, pointed out that, as evident from Exts.P4, P5 and P6, that the KWA was in charge of the road in question, during which his client could not complete the work in any manner whatsoever. He argued that, therefore, even though his client does not stand in the way of termination of the contract - since it is impossible for them WPC 21606/22 3 to complete the work on account of the fact that the KWA is still in possession of the stretch in question - imposition of risk and cost against them is unfair, illegal and uncharitable. He, therefore, prayed that Ext.P12, to the extent to which it imposes risk and cost against his client, be set aside.

3. Sri.K.V.Manoj Kumar – learned Senior Government Pleader, who is also the Standing Counsel for the 1st respondent – Kerala Road Fund Board, pointed out that the afore assertions of the petitioner are self-serving because, it is evident from Ext.P5 – which was issued on 03.11.2021 – that they were asked to complete the work on the stretches on which ‘KWA’ had laid their pipeline and also to finish the works on other parts of the road, except which had been marked for the purpose of such works by the said Authority. He submitted that, not only the petitioner refused to abide by the instructions in Ext.P5, but they chose not even to commence work in any manner whatsoever; thus constraining the Project Director to issue Ext.P12. He vehemently argued that Ext.P12 suffers from no vice and therefore, prayed that this Writ Petition be dismissed. WPC 21606/22 4

4. I must record upfront that the specific contentions of the petitioner, as voiced by their learned counsel, is that the road in question was handed over by the 1st respondent to the ‘KWA’ as early as on 03.02.2020 and that it has not been returned to them even as of today. They assert that this is a fundamental breach of contract; and that, therefore, no risk and cost can be imposed against them.

5. I do not propose to speak on the rival contentions affirmatively, since it will have the effect of pre-deciding the issue, particularly when the intent of this Court is to direct the competent Authority to reconsider the imposition of risk and cost against the petitioner for the reasons that I will presently state.

6. I propose to be very brief for the aforesaid reason and will record the reasons as compendiously as possible.

7. There can be little doubt – as is also admitted by Sri.K.V.Manoj Kumar – that, at least certain stretches of the road in question had been handed over to the ‘KWA’ for the pipeline works. This is manifest from Exts.P3 and P4; but the question is whether the petitioner could have completed the work, as ordered by the WPC 21606/22 5 competent Authority through Ext.P5 on 03.11.2021.

8. For this, one will have to have a glance through Ext.P12, wherein, it is unequivocally stated that the contract of the petitioner was extended, first upto 03.03.2020 and thereafter, upto 30.04.2022, without fine. Prima facie, this would only indicate that there were no reasons found attributable to the petitioner at that time, for the delay in completing the project. Ext.P12 further goes to say that the work is 80% complete and that only the Bitumen Macadam layer has been laid by the petitioner. However, it then says that ‘even though KWA utility shifting works got completed, the Contractor has not made any earnest attempts to resume the works till date’ (sic). Here is where the real problem lies, because Ext.P12 does not cite with precision when the ‘KWA’ give back the road to the Kerala Road Fund Board; nor as to the time frame available to the petitioner to have completed the work, particularly when their contract was valid only till 30.04.2022, as conceded therein. To add to this, when one examines Ext.P13, which is a letter issued by the ‘KWA’ on

09.05.2022, it indicates that they were still in possession of the road - at least to some stretches - because they say that, apart from WPC 21606/22 6 those, the road laying work can be completed on the balance. Of course, this is not an affirmative finding, but a prima facie one, based on the documents on record.

9. Suffice to say, the reasons stated in Ext.P12 would not be sufficient to impose risk and cost against the petitioner without the afore facts being properly assessed, evaluated and determined. The petitioner cannot be put to prejudice for reasons that cannot be attributed to them; and this is a matter for enquiry, which ought to have been done by the competent Authority comprehensively and effectively, before a drastic order akin to Ext.P12 could have been issued.

10. That said, since the petitioner does not challenge the termination of contract per se, but only the imposition of risk and cost, I am of the view that they are entitled to relief. In the afore circumstances, I allow this Writ Petition and set aside Ext.12, however, solely to the extent to it imposes risk and cost against the petitioner; with a consequential direction to the competent Authority to reconsider their claim for being freed of all obligations under the contract, after evaluating and assessing all WPC 21606/22 7 relevant and germane inputs and aspects, and after affording them an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than six months from the date of receipt of a copy of this judgment. Solely by way of a reiterated clarification, I specify that the directions above will not stand in the way of re-tendering the work or cancellation of contract against the petitioner, subject to the afore enquiry, but only that the imposition of risk and cost has been interdicted. RR Sd/- DEVAN RAMACHANDRAN JUDGE WPC 21606/22 8 APPENDIX OF WP(C) 21606/2022 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 Exhibit P12 Exhibit P13 Exhibit P14 THE TRUE COPY OF THE LETTER DATED 04/02/2020 OF THE PETITIONER TO THE 1ST RESPONDENT. THE TRUE EXTRACT FROM THE GENERAL TERMS AND CONDITIONS OF THE TENDER. THE TRUE COPY OF THE LETTER DATED 20/12/2020 OF THE PETITIONER TO THE 1ST RESPONDENT. THE TRUE COPY OF THE LETTER NO.PWD004-62- TIW-PIP-01 DATED 13/07/2021 OF THE 2ND RESPONDENT TO THE 1ST RESPONDENT. THE TRUE COPY OF THE LETTER NO.KRFB-PTA/KTM/AE1-19/2021 DATED 03/11/2021 OF THE 1ST RESPONDENT TO THE PETITIONER. THE TRUE COPY OF THE LETTER NO.17/TB/CKROAD/2019 DATED 18/11/2021 OF THE PETITIONER TO THE 1ST RESPONDENT. THE TRUE COPY OF THE JUDGMENT DATED 11/03/2022 IN WPC NO.28122/2021. THE TRUE COPY OF WRITTEN STATEMENT DATED 19/04/2022 BEFORE THE 1ST RESPONDENT. THE TRUE COPY OF EMAIL COMMUNICATION DATED 31/05/2022 FROM THE 1ST RESPONDENT. THE TRUE COPY OF REPRESENTATION NO.133/TB/CKR/2019-20 BEFORE THE 1ST RESPONDENT. THE TRUE COPY OF EMAIL COMMUNICATION DATED 28/06/2022 FROM THE 1ST RESPONDENT. THE TRUE COPY OF THE ORDER NO.172/PWD 004- 68/PD/PMU-KRFB/137R/PTA/2018 DATED 23/06/2022 OF THE FIRST RESPONDENT. THE TRUE COPY OF THE COMMUNICATION NO.AB3- 2308/2019(PRICE.EST) DATED 09/05/2022 OF THE EXECUTIVE ENGINEER, KWA TO THE 1ST RESPONDENT. THE TRUE COPY OF THE ABOVE ORDER NO.172/PWD004-68/PD/PMU-KRFB/137R/PTA/2018 DATED 07.11.2022 OF THE 1ST RESPONDENT.