B. ABOOBACKER v. STATE OF KERALA

SMT. RESHMI THOMAS (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.34775/2014 -2- J U D G M E N T The petitioner is a Government Contractor. He was awarded two separate contract works vide agreement No.6/2009-2010 dated 23-12-2009 and agreement No.17/2009-2010 dated 15-01-2010. Both these agreements were executed by the petitioner and the Executive Engineer, Minor Irrigation Division, Kasaragod. It is the case of the petitioner that owing some unavoidable situations including health condition of the petitioner, the petitioner could not complete the work allotted to him leading to the issuance of Ext.P1 order terminating / rearranging the work at the risk and cost of the petitioner. Thereafter by Ext.P2 letter dated 25-01-2012 the Superintending Engineer, Minor Irrigation Circle, Kozhikode required determination of the risk and cost liability of the petitioner. Rs.23,31,840/- was determined as the amount to be paid by the petitioner towards his risk and cost liability. The petitioner approached the Government seeking relive him from the imposition of risk and cost liability. However, the Government by Ext.P10 order rejected the said request.

2. The learned counsel for the petitioner would submit that the petitioner could not complete the work under the agreements in question only on account of unforeseen circumstances beyond the control of the petitioner. It is submitted that there was default in completing the work on account of the health condition of the petitioner and there was even a recommendation W.P (C) No.34775/2014 -3- of the Executive Engineer that the petitioner may be relieved of the liability under risk and cost clause. Reference is made in this regard to Ext.P5. It is submitted that the question as to whether there can be a unilateral determination of the liability as in Ext.P3 was considered by this court in a recent judgment of this court in Kaikkara Construction Company v State of Kerala and another; 2022 (2) KHC 541. It is submitted that Ext.P3 order is liable to be set aside as the liability was fixed without affording an opportunity of being heard.

3. The learned Government Pleader would submit that the law laid down by this court in Kaikkara Construction Company (supra) may not fully apply to the facts of the present case. It is submitted that from a reading of judgment of this court in Kaikkara Construction Company (supra) it is clear that the same was a case where there was certain delay on the part of the authority which awarded the work and for which an extension of time was granted to the Contractor in that case. It is submitted that it is also clear from the judgment that the said case was a case where the Contractor had taken the plea that he was not at all responsible for the delay in completing the work. It is submitted that from the pleadings in the present writ petition it is clear that after executing the agreements in question the petitioner did not even commence the work and this is not a case where there was any default on the part of the respondents resulting in the petitioner W.P (C) No.34775/2014 -4- being unable to complete the work. It is submitted that this is a case where the petitioner, on account of illness, could not complete the work and therefore this is not a case where the damages under the risk and cost of clause has to be adjudicated through civil court or through the Arbitrator as held in Kaikkara Construction Company (supra). The learned Government Pleader also submit that despite the Department being ready to grant extension of time, the petitioner was not ready to execute a supplemental agreement for the said purpose.

4. The learned counsel for the petitioner in reply would submit that it is clear from Ext.P5 recommendation of the Executive Engineer that the work was not rearranged within a period of one month, the petitioner may not be liable for any loss caused to the Government on account of higher cost for completing the project.

5. Having heard the learned counsel appearing for the petitioner and the learned Government Pleader, I am of the view that this writ petition can be disposed of setting aside Ext.P3 and directing the competent authority to reconsider the matter after affording an opportunity of hearing to the petitioner. The question as to whether the adjudication of liability of the petitioner (if any) under the risk and cost clause requires the initiation of proceedings before the civil court or before an Arbitrator is left open for consideration. While taking a fresh decision in the matter, the competent W.P (C) No.34775/2014 -5- authority shall have also due regard to Ext.P5 recommendation. I am inclined to set aside Ext.P3 as above, as it appears that Ext.P3 is not preceded by notice and hearing. Accordingly this writ petition will stand allowed by quashing Ext.P3 and directing reconsideration of the matter as directed above by the 4th respondent also having due regard to Ext.P5. The petitioner or his authorised representative shall appear before the 4th respondent together with a copy of the writ petition and a certified copy of this judgment at 11 a.m on 08-02-2024. Thereafter the matter shall be adjudicated without any further delay and at any rate within a period of 3 months from the date of receipt of a certified copy of this judgment. AMG Sd/- GOPINATH P. JUDGE W.P (C) No.34775/2014 -6- APPENDIX OF WP(C) 34775/2014 PETITIONER EXHIBITS EXHIBIT P1: TRUE COPY OF THE ORDER NO.D3-1349/2009 DATED 7.2.2011 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2: TRUE COPY OF THE LETTER DATED 25.1.2012 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3: TRUE COPY OF THE LETTER NO.D3-1339/2009 DATED 9.5.2011 ISSUED BY THE FOURT RESPONDENT. EXHIBIT P4: TRUE COPY OF THE GO(O)314/72/PWD DATED 21.12.72. EXHIBIT P5: TRUE COPY OF THE LETTER DATED 22.5.2013 ISSUED BY THE 4TGH RESPONDENT. EXHIBIT P6: TRUE COPY OF THE LETTER DATED 28.6.2012 FROM THE PRINCIPAL SECRETARY. EXHIBIT P7: TRUE COPY OF THE LETTER DATED 4.7.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8: TRUE COPIES OF THE LETTER DATED 3.9.2013. EXHIBIT P8(A): TRUE COPIES OFTHE LETTER DATED 24.9.2013. EXHIBIT P9: TRUE COPY OF THE CERTIFICATE DATED 6.9.2013 ISSUED BY THE VILLAGE OFFICER. EXHIBIT P10: TRUE COPY OF THE ORDER DATED 28.11.2014 ISSUED BY THE IST RESPONDENT.