N.V.RAJU v. STATE OF KERALA

SRI. VENUGOPAL V. GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

09.01.2024, ALONG WITH WP(C).41747/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) Nos.41793 & 41747/2018 -2- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945 WP(C) NO. 41747 OF 2018 PETITIONER/S: N.V.RAJU AGED 59 YEARS GOVERNMENT CONTRACTOR, NJATTUTHOTTIYIL HOUSE, KOLENCHERRY, ERNAKULAM. BY ADV. SRI.DEEPU LAL MOHAN RESPONDENT/S: 1 2 3 4 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES (IRRIGATION) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. THE CHIEF ENGINEER, KUTTANAD PACKAGE, THIRUVAMPADY, ALAPPUZHA 688 009. THE SUPERINTENDING ENGINEER, KUTTANAD DEVELOPMENT CIRCLE, CHENGANOOR 689 121. THE EXECUTIVE ENGINEER, KUTTANAD DEVELOPMENT DIVISION, VEZJHAPRA P.O, MANCOMPU, ALAPPUZHA 689 595 SMT. RESHMI THOMAS, GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

09.01.2024, ALONG WITH WP(C).41793/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) Nos.41793 & 41747/2018 -3- J U D G M E N T The petitioner is common in both these writ petitions. The petitioner is a Government Contractor. He has filed these writ petitions claiming that he is entitled to incentives in terms of Section 2112.1 of the Kerala Public Works Department Manual (In short 'the Kerala PWD Manual') for having completed the work entrusted to him ahead of the schedule.

2. In W.P (C) No. 41793/2018 the petitioner was awarded with the work 'Kuttanad Package Flood Management Programme – Mitigation of flood in the padasekharams of Kuttanad Taluk – Mitigation of flood in Uthenveli Padasekharam in Champakkulam Panchayat'. In W.P (C) No. 41747/2018 the work awarded to the petitioner was 'Kuttanad Package - Flood Management Programme – Mitigation of flood in the padasekharams of Kuttanad Taluk – Mitigation of flood in Chempady Chakkumkary Padasekharam in Champakkulam Panchayat'. According to the petitioner both the aforesaid works awarded to the petitioner were completed ahead of the schedule, thereby entitling the payment of incentive in terms of the aforesaid provisions of the Kerala PWD Manual.

3. The learned counsel for the petitioner refer to the provisions of the Kerala PWD Manual to contend that if a Government Contractor who is awarded with the work subject to the provisions of the Kerala PWD Manual completed the work ahead of the schedule, the contractor is entitled to W.P (C) Nos.41793 & 41747/2018 -4- incentive which is equivalent 1% of the estimate PAC subject to a maximum of Rs.4,00,000/-. It is submitted that since there is no dispute that the petitioner had completed the work in question prior to schedule the petitioner is entitled to incentive in terms of the aforesaid provision.

4. The learned Government Pleader would submit that this is not a case where the petitioner was entitled to any incentive in terms of the provisions contained in the Kerala PWD Manual. It is submitted with reference to Ext.P9 in both cases that there was an exclusion of certain items of work originally allotted to the petitioner based on the request of the Padasekharam committee. It is submitted that the early completion of the work was on account of such reduction in the work allotted to the petitioner and therefore the petitioner is not entitled to any incentive in terms of Section

2112.1 of the Kerala PWD Manual. It is submitted that in respect of the work which is subject of W.P (C) No. 41793/2018 on account of the reduction only 63% of the work originally allotted had to be completed by the petitioner. Reference is made in this regard to Ext.R3 (a). With regard to to W.P (C) No. 41747/2018 it is submitted that there was a reduction of 25% of the work originally allotted and the work quantity got reduced to 75% of the work originally alloted. It is therefore submitted that in both these cases since the work was completed earlier than the original schedule owing to reduction of work required to be done, the petitioner is not entitled to incentive in terms of W.P (C) Nos.41793 & 41747/2018 -5- provisions contained in the Kerala PWD Manual.

5. Having heard the learned counsel for the petitioner in these cases, and the learned Government Pleader, I am of the opinion that the learned Government Pleader was right in contending that the petitioner is not entitled to incentive in terms of the provisions contained in Section 2112.1 of the Kerala PWD Manual. Section 2112.1 of the Kerala PWD Manual reads as follows:- “Incentives of timely completion: Incentive at the rate of 1% of the estimate PAC subject to the maximum of Rs.4 lakhs will be paid to the contractor if the work is completed with the original time of completion. This clause is applicable only for works within TS powers of Chief Engineer.” It is clear from a reading of the aforesaid provision that the clause contemplates payment of incentive for timely completion of the entire work awarded to a contractor and does not contemplate a situation where there is completion of work ahead of the stipulated time on account of reduction in the quantity of work. Therefore, I am of the view that the petitioner is not entitled to the reliefs claimed in these writ petitions. Writ petitions fail and they are accordingly dismissed. AMG Sd/- GOPINATH P. JUDGE W.P (C) Nos.41793 & 41747/2018 -6- APPENDIX OF WP(C) 41747/2018 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 THE PHOTOCOPY OF THE SELECTION NOTICE NO. 1747/SEKDC/GGNR/2013 DATED 20-04-2015 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT THE PHOTOCOPY OF THE RELEVANT PAGES OF THE AGREEMENT NO. 09/SEKDC/CGNR/2015-16 DATED 21-04- 2015 ENTERED INTO BY THE PETITIONER WITH THE 3RD RESPONDENT THE PHOTOCOPY OF THE LETTER NO. D1.1747/SE/KDC/CGNR/2013 DATED 02-05-2016 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT FORWARDING THE COMPLETION CERTIFICATE FOR THE WORK. EXHIBIT P4 THE PHOTOCOPY OF THE COMPLETION CERTIFICATE APPENDED TO EXT.P3 EXHIBIT P5 THE PHOTOCOPY OF REPRESENTATION DATED 27-07-2017 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P6 THE PHOTOCOPY OF JUDGMENT DATED 06-12-2017 OF THIS HON'BLE COURT IN W.P(C) NO. 32718/2017. EXHIBIT P7 THE PHOTOCOPY OF LAWYER NOTICE DATED 02-05-2018 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT P8 THE PHOTOCOPY OF LAWYER NOTICE DATED 30-06-2018 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT P9 THE PHOTOCOPY OF ORDER NO. D1.1747/SE/KDC/CGNR/2013 DATED 27-07-2018 ISSUED BY THE 3RD RESPONDENT. RESPONDENT EXHIBITS ANNEXURE R3(A) TRUE COPY OF THE CHART SHOWING THE DIFFERENCE IN THE AGREED QUANTITY IN EACH APPENDIX AND THE ACTUAL EXECUTED QUANTITY W.P (C) Nos.41793 & 41747/2018 -7- APPENDIX OF WP(C) 41793/2018 PETITIONER EXHIBITS EXHIBIT P1 THE PHOTOCOPY OF SELECTION NOTICE NO. 1746/SEKDC/CGNR/2013 DATED 23.03.2015 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P2 THE PHOTOCOPY OF THE RELEVANT PAGES OF THE AGREEMENT NO. 41/SE/KDC/CGNR/2014-15/ DATED 30.03.2015 ENTERED INTO BY THE PETITIONER WITH THE 3RD RESPONDENT. EXHIBIT P3 THE PHOTOCOPY OF THE LETTER NO.D1/1746/KDC/CGNR/2013 DATED 21.03.2016 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT FORWARDING THE COMPLETION CERTIFICATE FOR THE WORK. EXHIBIT P4 THE PHOTOCOPY OF THE COMPLETION CERTIFICATE TO EXT.P3. EXHIBIT P5 THE PHOTOCOPY OF THE REPRESENTATION DATED 27.07.2017 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P6 THE PHOTOCOPY OF THE JUDGMENT DATED 13.12.2017 OF THIS HON'BLE COURT IN W.P.(C) NO. 32719/2017. EXHIBIT P7 THE PHOTOCOPY OF LAWYER NOTICE DATED 02.05.2018 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P8 THE PHOTOCOPY OF LAWYER NOTICE DATED 30.06.2018 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P9 THE PHOTOCOPY OF ORDER NO. D5.1526(6)/SEKDC/CGNR/2013 DATED 30.07.2018 ISSUED BY THE 3RD RESPONDENT.