George Kuruvila vs. State Of Kerala

The subject issue relates to a contract awarded to the appellant by the State Government. Brief material facts for the disposal of the writ appeal are as follows; appellant is a Public Works Department A Class Contractor and claims to be doing the contract work for the past more than

According to the appellant, as per Exhibit P3 letter dated 7.2.2018, appellant has informed the Superintending Engineer that the work of improvement of the road is to be undertaken through a paddy land, and that it is marshy in nature. It was further stated that during the construction of the first reach of the road, the road sank because of the marshy nature of the land and therefore, requested the Superintending Engineer to inspect the site and give proper direction to do foundation work of the road. According to the appellant, though the appellant was issued with the work order, the Executive Engineer, PWD Roads Division, Kottayam - 3rd respondent, was convinced that if the road is constructed without soil test, it will be an exercise detrimental to the department , and accordingly

The case of the appellant is that because of lack of communication from the department, the appellant could not even start the work or complete the work within 6 months as is stipulated in the agreement. Other contentions were also raised in the writ petition explaining the circumstances disabling the appellant to proceed with the work.

Anyhow on 20.8.2018 appellant requested for extension of work and also sought to take a decision regarding the construction of a foundation and conduct of soil test as is suggested by the Executive Engineer in Exhibit P4 letter. It appears without mentioning anything with respect to the soil test or the foundation work, the Superintending Engineer, extended the time for work up to 19.12.2018 and directed the appellant to sign the contract. Having not been satisfied with the mere extension of work, appellant had submitted Exhibit P7 representation, and in that he had requested for return of the advance amount and the bank guarantee apart from claiming damages. According to the appellant, even though he has

From the record of proceedings, it is seen that there were no further proceedings issued in that regard till 21.12.2020, on which date Exhibit P9 notice was issued by the Executive Engineer, PWD Roads Division, Kottayam directing the appellant to start the construction within 10 days. Thereupon, appellant preferred Exhibit P10 reply dated 1.1.2021 (wrongly noted the date as 1.1.2020) wherein, it was mentioned that a revised estimate has to be made and the construction is to be permitted on the basis of revised estimate including the GST and if done so, appellant can proceed with the work.

Therefore, the sum and substance of the contention was that unless and until a revised estimate was prepared to carry on with the work, the appellant was not interested in proceeding with the work. Which thus means appellant was not prepared to complete the work on the rate agreed as per Exhibit P1 work order dated 29.1.2018. It was thus seeking to quash Exhibit P9 and to command the Superintending Engineer to refund the security deposit and the bank guarantee, the writ petition was filed.

The learned Single Judge after taking into account the rival

The learned Single Judge had also found that the appellant never approached the respondents to get the agreement extended and he has never conveyed that he was willing to carry out the work even though it is stated so in the writ petition. Therefore, taking into account the interest expressed by the appellant to complete the work in the writ petition, the direction was issued in the judgment to complete the work before 31.5.2021. 10. In fact a detailed counter affidavit was filed in the writ petition by the Executive Engineer, in which it was stated that even though the work site was handed over, appellant has not cared to complete the work within

The basic contention advanced by the appellant in the appeal is that the appellant has submitted in the writ petition his willingness to complete the work,on condition that a fresh estimate is prepared for the work taking into account the soil and other conditions of the site in question, but the learned Single Judge had ignored the said vital aspect though it was recorded that the appellant has expressed his willingness to complete the work.

We have heard Senior Adv.Sri.Ranjith Thampan appeared for the appellant, assisted by Sri.V.M.Krishnakumar, Sri.Surin Geroge Ipe, learned Senior Government Pleader, for the respondents and perused the pleadings

It is an admitted fact that on the basis of the tender submitted by the appellant, the work was awarded to the appellant as per Exhibit P1 work order dated 29.1.2018. As per the terms and the conditions prescribed under the work order, a security amount was deposited and a bank guarantee was also extended and executed Exhibit P2 agreement. It is also an admitted fact that the appellant did not proceed with the work assigning the reason that the site in question is a marshy land and unless and until the foundation work is carried out, there is every likelihood of the road being damaged because of that. It is evident from Exhibit P3 that even before issuance of the work order, appellant had addressed the Superintending Engineer as per Exhibit P3 letter dated 7.2.2018 explaining about the nature of the land and the likelihood of damage being caused to the road unless the foundation is strengthened. In fact, the Executive Engineer, consequent to the representation of the appellant, had addressed the Superintending Engineer as per Exhibit P4 letter dated 13.6.2018 presumably after visiting the site and expressed his apprehension of the damage of the road consequent to the marshy nature of the property and suggested soil test.

Anyhow it is clear that the issue remained dormant after the Exhibit P4 letter issued by the Executive Engineer till Exhibit P9 communication dated 21.12.2020 was issued by the Executive Engineer directing the appellant to start the work within 7 days. It is also evident from the records that appellant had addressed the Superintending Engineer on 19.10.2018 also expressing his concern of not taking steps to consider the request made by the appellant in regard to the soil test and proceeding with the work or in the alternative, repayment of the security deposit and return of the bank guarantee.

Therefore, assimilating the fact situation, we are of the considered opinion that various issues were pointed out by the appellant either immediately before or after Exhibit P1 work order was issued to the appellant. The apprehension voiced by the appellant was very well supported by the Executive Engineer as per Exhibit P4 communication dated 13.6.2018, which is narrated above. It is also curious to note that after Exhibit P4 dated 13.6.2018, there was no communication till Exhibit P9 dated 21.12.2020 directing the appellant to start the work within 7 days without addressing the issue raised by the appellant in regard to the conditions of the work site.

It may be true the appellant has stated in the writ petition that he is prepared to carry on with the work. But going by the record of proceedings, it is clear that appellant has undertaken to continue with the work on condition that the work was re-estimated with enhancement of rates. Therefore, the findings rendered by the learned Single Judge that since the appellant admitted to carry on with the work, and thus granting time to the appellant to complete the work on or before 31.5.2021 without addressing the issue of demand made by the appellant for re-estimate of the work may not be a correct approach to the issue.

We are also of the view that the learned Single Judge, relied upon the counter affidavit filed by the Assistant Engineer, PWD Works Department, PWD Roads Division, Kottayam, and probably was of the opinion that the appellant must have visited the site before the tender was submitted. In the absence of Exhibit P4 letter addressed by the Executive Engineer dated 13.6.2018 to the Superintending Engineer, the apprehension of damage of the road consequent to the marshy nature of land and proceeding without conducting soil test before starting construction of the road, the findings of the learned Single Judge would have been correct. But in our view the issue should have been considered and adjudicated, taking