Jose Thomas M. vs. State Of Kerala
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941 WP(C).No.39289 OF 2018(I) PETITIONER :- JOSE THOMAS M., JOSE BUNGALOW, PIDAVOOR P.O, PATHANAPURAM, KOLLAM - 689 695. BY ADVS. SRI.K.BABU THOMAS SMT.MARYKUTTY BABU RESPONDENTS :- 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, WATER RESOURCES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001 2 THE CHIEF ENGINEER PROJECT -II, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM - 695 033 3 THE SUPERINTENDING ENGINEER, PROJECT CIRCLE, MUVATTUPUZHA - 686 661. BY SRI.MATHEW GEORGE VADAKKEL, GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.39289 OF 2018(I) -: 2 :- JUDGMENT Dated this the 10th day of January 2020 The petitioner has approached this Court seeking the following prayers :- “(i) Issue a writ of certiorari, or any other appropriate writ, or order, or direction to the respondents calling for the records of the case leading up to Ext.P12 and quash Ext.P10. (ii) Issue a writ of mandamus, or any other appropriate writ, or order, or direction to the respondents requiring to reconsider and pass orders on Ext.P5, P7 and P9, to allow extension of intended completion period by 24 months to carry out and complete the works envisaged in Ext.P1 at 9.90% above the estimate rate based on 2013 DSR as sought, in view of the implementation of GST with effect from 1-7-2017 imposing additional burden of tax at the rate of 12% of value of works. (iii) Issue a writ of mandamus, or any other appropriate writ, or order, or direction to the respondents requiring to allow the petitioner to resume the works immediately so as to make use of the present favorable working season to carry out and complete the same on an early date. (iv) Declare that the petitioner is entitled to extension of intended completion period by 24 months as sought in Ext.P5 and P9 from the date of resuming the work in view of the period of completion stipulated in Ext.P1 and suspension of work continued from 31-5-2016 onwards due to non-finalization of design, drawings and structural particulars of Mini dam with regulator-cum-bridge.
WP(C).No.39289 OF 2018(I) -: 3 :- (v) Declare that termination of contract by Ext.P10 in gross violation of the provisions of clauses 2111, 2115 and 2116.2 of Ext.P4 is unauthorised, illegal, without juri iction, invalid and null and void and that the petitioner is entitled to carry out and complete the works at 9.90% above DSR 2013 and in the event of preventing the same, the respondents are liable to pay 15% of the value of works of Rs.15,94,69,449/- not allowed to be carried out at Rs.2,39,20,417/- towards gains deprived by the illegal termination of the contract.”
Heard the learned counsel for the petitioner and the learned Government Pleader.
It is submitted by the learned counsel for the petitioner that in a similar case, the Government by Ext.P12, permitted the contractor to continue the balance work by granting a revised estimate based on the Schedule of Rates of 2012 without deducting the tender deficit of 10.5%. It is stated that the same benefit is liable to be granted to the petitioner also and that the termination of the agreement by Ext.P10 by the Superintending Engineer was unsustainable in the facts and circumstances of the case.
The learned Government Pleader would submit that in case the petitioner approaches the Government with an appropriate representation as against Ext.P10 order of termination, the same shall be considered appropriately by the Government, taking note of Ext.P12 as well.
WP(C).No.39289 OF 2018(I) -: 4 :- In the above view of the matter, there will be a direction that in case the petitioner approaches the Government with an appropriate representation, the same shall be considered by the 1st respondent and an appropriate decision shall be taken, after hearing the petitioner and specifically taking note of Ext.P12 order. Orders shall be passed within a period of two months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. ANU SIVARAMAN
JUDGE Jvt/14.1.2020
WP(C).No.39289 OF 2018(I) -: 5 :- APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF RELEVANT PORTION OF AGREEMENT NO. 9/SEPCM/2016-2017. EXHIBIT P2OF LETTER OF THE PETITIONER REPORTING NO HARD ROCK EVEN AT DEPTH OF 7.50 M. EXHIBIT P3OF G.O (RT) NO. 245/18/WRD/2018 ADMINISTRATIVE SANCTION FOR RS.15,94,69,449/- EXHIBIT P4OF RELEVANT PORTION OF CLAUSE 2111, 2115,2116 OF THE PWD MANUAL. EXHIBIT P5OF REPRESENTATION, REQUESTING EXTENSION OF TIME BY 24 MONTHS. EXHIBIT P6OF REPRESENTATION REQUESTING TO ALLOW RATE AT. 9.90 % ABOVE 2013 DSR. EXHIBIT P7OF REPRESENTATION DETAILING THE ARRANGEMENTS MADE FOR CARRYING OUT THE WORKS. EXHIBIT P8OF LETTER OF THE 3RD RESPONDENT FOR WILLINGNESS TO EXECUTE THE WORK. EXHIBIT P9OF REPLY OF THE PETITIONER INTIMATING WILLINGNESS TO CARRY OUT WORK. EXHIBIT P10OF THE ILLEGAL ORDER OF TERMINATION OF EXT.P1 AGREEMENT. EXHIBIT P11 TRUE EXTRACT OF THE RELEVANT QUANTITIES INCLUDED IN THE REVISED ESTIMATE BEYOND THE CEILING LIMIT. EXHIBIT P12OF G.O(RT) NO. 473/2018 WRO/2012 ALLOWING ESTIMATE RATES. EXHIBIT P13 TRUE COLOR PHOTOGRAPH OF FOUNDATION EXCAVATED EXHIBIT P13(a): TRUE COLOR PHOTOGRAPH OF SITE OF WORK- FOUNDATION EXCAVATED WITH RING BUNDS EXHIBIT P13(b): TRUE COLOR PHOTOGRAPH OF FOUNDATION EXCAVATED EXHIBIT P13(c): TRUE COLOR PHOTOGRAPH OF FOUNDATION EXCAVATED
WP(C).No.39289 OF 2018(I) -: 6 :- EXHIBIT P14: TRUE COLOR PHOTOGRAPH OF 20MM STONE AGGREGATES AND STEEL RODS STOCKED AT THE SITE. EXHIBIT P14(a): TRUE COLOR PHOTOGRAPH OF 20MM STONE AGGREGATES STOCKED AT THE SITE. EXHIBIT P15: TRUE COLOR PHOTOGRAPH OF THE STEEL RODS STOCKED AT SITE. EXHIBIT P15(a): TRUE COLOR PHOTOGRAPH OF THE STEEL RODS STOCKED AT SITE. EXHIBIT P15(b): TRUE COLOR PHOTOGRAPH OF THE STEEL RODS STOCKED AT SITE. EXHIBIT P15(c): TRUE COLOR PHOTOGRAPH OF THE STEEL RODS STOCKED AT SITE. EXHIBIT P15(d): TRUE COLOR PHOTOGRAPH OF THE STEEL RODS STOCKED AT SITE WITH BATCHING PLANT. EXHIBIT P16: TRUE COLOR PHOTOGRAPH OF SPECIALLY MANUFACTURED STEEL SHUTTERS. EXHIBIT P16(a): TRUE COLOR PHOTOGRAPH OF SPECIALLY MANUFACTURED STEEL SHUTTERS. EXHIBIT P16(b): TRUE COLOR PHOTOGRAPH OF SPECIALLY MANUFACTURED STEEL SHUTTERS. EXHIBIT P17; TRUE COLOR PHOTOGRAPH OF GABION NETS STOCKED AT SITE. EXHIBIT P17(a): TRUE COLOR PHOTOGRAPH OF GABION NETS STOCKED AT SITE. EXHIBIT P18: TRUE COLOR PHOTOGRAPH OF STEEL CRIBS STOCKED AT SITE. EXHIBITP18(a): TRUE COLOR PHOTOGRAPH OF STEEL CRIBS STOCKED AT SITE. EXHIBIT P19: TRUE COLOR PHOTOGRAPH OF 'N' TRUSS STOCKED AT SITE. EXHIBIT P19(a): TRUE COLOR PHOTOGRAPH OF 'N' TRUSS STOCKED AT SITE. EXHIBIT P19(b): TRUE COLOR PHOTOGRAPH OF 'N' TRUSS STOCKED AT SITE.
WP(C).No.39289 OF 2018(I) -: 7 :- EXHIBIT P19(c): TRUE COLOR PHOTOGRAPH OF 'N' TRUSS STOCKED AT SITE. EXHIBIT P20: TRUE COLOR PHOTOGRAPH OF SAND STOCKED AT SITE. EXHIBIT P20(a): TRUE COLOR PHOTOGRAPH OF SAND STOCKED AT SITE. EXHIBIT P21:OF THE REPRESENTATION OF THE PETITIONER. //// P.A. TO JUDGE
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.