Judgment
W.P.(C) No. 21086 of 2022 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 5TH DAY OF JANUARY 2023 / 15TH POUSHA, 1944 WP(C) NO. 21086 OF 2022 PETITIONER/S:
K.K.VARGHESE, AGED 62 YEARS S/O. KURUVILLA, KUNNATH HOUSE, PERIKKALLOOR P.O, PULPALLY, WAYANAD DISTRICT 673 579.
BY ADVS.
ABRAHAM MATHEW (VETTOOR) ANIL ABEY JOSE RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, L.S.G DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.
2 SUPERINTENDING ENGINEER, LSGD, NORTH CIRCLE, MANANCHIRA, KOZHIKODE , PIN 673 001.
3 EXECUTIVE ENGINEER, L.S.G.D. WAYANAD, PIN 673 121.
4 ASSISTANT EXECUTIVE ENGINEER, L.S.G.D., PANAMARAM BLOCK PANCHAYATH, PIN 673 122.
5 PULPALLY GRAMA PANCHAYATH, PULPALLY P.O, WAYANAD DISTRICT, PIN 673 509, REPRESENTED BY ITS SECRETARY.
BY ADV MANOJ RAMASWAMY OTHER PRESENT:
GP RIYAL DEVASSY
W.P.(C) No. 21086 of 2022 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 21086 of 2022 3 V.G.ARUN J.
------------------------------------- W.P.(C) No.21086 of 2022 --------------------------------- Dated this the 5th day of January 2023 JUDGMENT The petitioner was awarded the work of 'Re-tarring of Thazhangadi Meenangkolli Road, including construction of Culvert' by the 4th respondent, for and on behalf of the Pulpally Grama Panchayath. The petitioner executed Ext.P7 agreement on 3/3/2022 and the site was handed over immediately. For the purpose of commencing the construction, the petitioner had brought men and materials to the site, including bitumen. The petitioner thereafter requested respondents 4 and 5 to demarcate the site for construction of culvert. As there was no positive response, the petitioner was disabled from commencing the work. At that stage, the petitioner was served with Ext.P14 informing that the contract is terminated. Aggrieved, this writ petition was filed.
2. I heard the learned Counsel for the petitioner and the learned Standing Counsel for the Panchayat.
3. Although various contentions are raised by the Counsel for the petitioner and refuted by the Standing Counsel for the Panchayat, I am primarily impressed with the contention that there cannot be any termination of contract without issuing notice to the petitioner and
W.P.(C) No. 21086 of 2022 4 affording an opportunity of hearing. Apart from the contention that such procedure militates against the fundamental principles of natural justice, learned Counsel relied on Clause 10 of Ext.P7 to point out that, even as per the terms of the agreement, the Panchayat is bound to give 14 days notice to the petitioner before proceeding to terminate the contract. It is also essential to note the submission based on Exts.P8, P9 and P11 that huge amounts have already been expended for the construction.
The writ petition is hence disposed of as under;
i). Ext.P14 is quashed.
ii). The 5th respondent shall issue notice to the petitioner regarding its proposal to terminate the contract and afford reasonable opportunity of hearing to the petitioner before finalising the proposal.
iii). While issuing the final order, the 5th respondent shall take into account the fact that the petitioner has expended huge amounts for effecting the construction.
iv). The proceedings, as directed above, shall be finalised within an outer limit of one month of receipt of a copy of this judgment.
v). Till such time, the subject work shall not be re tendered.
Sd/-
V.G.ARUN
JUDGE dpk
W.P.(C) No. 21086 of 2022 5 APPENDIX OF WP(C) 21086/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE PWD LICENSE BEARING NO.
EE/B/76C ISSUED BY THE EXECUTIVE ENGINEER PWD, BUILDINGS DIVISION, KALPETTA, IN FAVOR OF THE PETITIONER AND RENEWED UP TO 31.03.2023.
Exhibit P2 A TRUE COPY OF THE ABSTRACT ESTIMATE OF THE WORK PULLPALLY GP/171/2021-22/ THAZGANGADI MEENAGKOLLI ROAD, RE-TARRING /MG (R) /2320000 OBTAINED FROM THE WEBSITE OF THE RESPONDENTS.
Exhibit P3 A TRUE COPY OF THE COVERING LETTER SUBMITTED BY THE PETITIONER ALONG WITH HIS QUOTATION FOR THE WORK COUNTER SIGNED BY THE 4TH RESPONDENT DATED 08.12.2021.
Exhibit P4 A TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER WITH REGARD TO NEGOTIATION OF RATES DATED 08.12.2021.
Exhibit P5 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT ACCEPTING THE TENDER SUBMITTED BY THE PETITIONER DATED NIL.
Exhibit P6 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT WITH REGARD TO THE AWARD OF WORK ORDER IN FAVOR OF THE PETITIONER DATED NIL.
Exhibit P7 A TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND 4TH RESPECT TO THE WORK OF PULLPALLY GP /171/2021-22/ THAZGANGADI MEENAGKOLLI ROAD RE-TARRING/MG (R) /2320000 DATED 03.03.2022.
Exhibit P8 A TRUE COPY OF THE TERM DEPOSIT (FIXED DEPOSIT) CERTIFICATE NO. JL0099148 FOR RS.
57,000/- ISSUED BY THE TREASURY OFFICER DATED
W.P.(C) No. 21086 of 2022 6 03.03.2022.
Exhibit P9 A TRUE COPY OF THE RECEIPT FOR REMITTING THE CONTRACTOR'S EARNEST MONEY OF RS. 31070/- DATED 08.12.2021.
Exhibit P10 A TRUE COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE PETITIONER FOR HANDOVER OF THE SITE FOR THE WORK, DATED 07.03.2022.
Exhibit P11 A TRUE COPY OF THE GST INVOICE FOR PURCHASE OF BITUMEN FOR THE VALUE OF RS. 4,95,010/- FROM THE BHARATH PETROLEUM CORPORATION LTD.
DATED 10.03.2022.
Exhibit P12 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE 4TH RESPONDENT WITH REGARD TO MARKING THE MEASUREMENTS AT SITE DATED 29.03.2022.
Exhibit P13 A TRUE COPY OF THE REPRESENTATION MADE BY PETITIONER TO THE 5TH RESPONDENT WITH COPY TO RESPONDENTS 2 TO 4 TOGETHER WITH THE POSTAL RECEIPTS DATED 06.04.2022.
Exhibit P14 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT INTIMATING CANCELLATION OF THE WORK AS PER DECISION NO. 211 DATED 24.03.2022 OF THE 5TH RESPONDENT DATED 18.04.2022.
Exhibit P15 A TRUE COPY OF THE COMMUNICATION MADE BY THE 4TH RESPONDENT TO THE PRESIDENT/SECRETARY OF THE PULLPALLY GRAMA PANCHAYATH DATED 23.7.2022