M.K. Jose v. State Of Kerala

JUDGMENT

K.T Sankaran, J.:— The work of “Stimulus package - improvements to Kannavam - Idumba - Trikadaripoyil Road Km. 0/000 to 6/100” in Kannur District was awarded to the appellant who is a PWD contractor. The agreement was executed by the appellant on 18.12.2010 According to PWD, the site of the work was handed over to the contractor on 27.12.2010 The period of completion of the contract was 12 months from 27.12.2010 The work was not completed within time. Extension was applied for by the appellant and it was granted up to 30.6.2012 and later up to 31.3.2013 Taking the view that the contractor failed to complete the work as scheduled, the Executive Engineer issued a stop memo to the appellant on 14.2.2013

2. Several Writ Petitions were filed by the appellant after the award of the work. In the meanwhile, finally the appellant was heard by the Secretary of the Public Works Department on 14.12.2012 and 3.1.2013 After the hearing was completed, the Public Works Department put up a consolidated note (Exhibit P19) in which it is stated thus:

“26. As per the direction of the Hon. High Court hearing was conducted by the Secretary, Public Works Department on 3.1.2013 The contentions raised by the petitioner in Ext.P23 and P24 have been examined in detail. (Details of the contentions raised by the petitioner in Ext.P23 and P24 and para-wise remarks furnished by the Chief Engineer (R&B) may be seen consolidated at Flag-C. The Assistant Engineer, PWD Roads Section, Kuthuparamba, who was present in the hearing, was directed to furnish the details of additional financial commitment that may arise if enhanced rate is allowed for the balance work. The Assistant Engineer vide letter dt.P-331 CF, has reported that the excess amount required for the balance work carried out and to be carried out on the proposed revised estimate after third bill of quantities measured up to 1.6.2012 as per Schedule of Rates -2012 comes to Rs. 1,35,56,496/-. Detailed statement in this regard may be seen at P-333 to 353 CF. After due consideration of all the facts and figures presented at the time of hearing, the contentions with regard to Revised Estimate and enhanced rates for the balance work, to be executed is found to be maintainable. Hence, it is decided to get concurrence of Finance Department before issuing formal orders, in compliance of order of Hon. High Court.”

3. However, final order (Exhibit P15) was passed by the Superintending Engineer, PWD (Roads & Bridges), North Circle, Kozhikode, on 25.7.2013, terminating the contract at the risk and cost of the appellant. The security deposit pledged by the contractor was forfeited to Government. The appellant filed W.P(C). No. 22541 of 2013 challenging Exhibit P15 order. The reliefs prayed for in the Writ Petition reads as follows:

“(a) Call for the records leading up to Ext.P15 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction.

(b) Pass an order staying all further proceedings in pursuance to Ext.P15, pending disposal of this Writ Petition (Civil).

(c) issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1, 3 and 4 to take steps for taking measurements of the work already completed by the petitioner and making corresponding entries in the measurement book.

(d) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioners may pray from time to time.”

4. The learned Single Judge disposed of the Writ Petition as per the judgment dated 11th November, 2013, directing the respondent concerned to give notice to the appellant/Writ Petitioner with regard to the measurement of the work completed by him, to effect necessary entries in the measurement book before finalisation of the tender proceedings, if any, in respect of the balance work. The judgment of the learned Single Judge is under challenge in this Writ Appeal.

5. It is submitted that the learned Single Judge did not consider the reliefs (a) and (b) in the Writ Petition. In Exhibit P15, it is seen that the Secretary found that more than 50% of the work was remaining to be completed. Going by Exhibit P15, the Secretary heard the appellant lastly on 3.1.2013 and Exhibit P15 order was passed on 25.7.2013 The statement in Exhibit P15 that more than 50% of the work was remaining to be completed was challenged by the appellant/Writ Petitioner. At his instance, Joint Commissioners were appointed by us to measure the work done by the appellant. Advocates Prijith. P. and Vinay. V., the Commissioners, submitted the report dated 10 February, 2014. The Commissioners were assisted by K. Sivadasan, Assistant Executive Engineer (Retd.), PWD. He submitted a report to the Commissioners which was appended to the Commissioners' report. The Commissioners reported in the report, under the heading “Whether 90% of the construction work is over?”, thus:

“(1) Whether 90% of the construction work is over? The expert Engineer was requested to assist us in preparing the report with respect to the works done at the site. He had prepared a report and also prepared abstract of details of work as appendix to his reports. The appendix to the report is marked as Annexure A which is produced along with the report prepared by the expert Engineer. As per the report percentage of work done is calculated based on the cost of construction and original and revised estimate recommended. As per the report of the Engineer value of work done by the appellant till 14.2.2013 will come to Rs. 2,08,23,690/- which will come to 72.8% of the original estimate of Rs. 2,34,73,852/-. PWD authorities admits the work done till 14.2.2013 which is the date of stop memo issued by the PWD. As per the report of the expert Engineer, the value of work done by the appellant till 14.2.2013 will be 66% if the same is calculated based on the revised estimate recommended by the PWD which is equal to Rs. 3,15,50,000/-.

The Engineer had reported that appellant had executed additional works after 14.2.2013 i.e, after the stop memo. The works so done by the appellant is not accepted by the PWD authorities since the same is executed without their consent ignoring stop memo dated 14.2.2013 The value of work done after 14.2.2013 will come to Rs. 19,66,693.00. If the additional work done is assessed on the original estimate it will come to 97.09% of the work. Engineer also reported that percentage of total work after 14.2.2013 if assessed on the revised estimate recommended it will come to 72.24%. Engineer had told that work done after 14.2.2013 can only be assessed as per the revised estimate recommended, otherwise it will be conflicting with reality. Absence of necessary provisions in original estimate had necessitated revised estimate.

Engineer has also reported that if the work is executed in a proper manner with sufficient men and machinery and in a systematic manner the remaining works can be completed within a period of 60 days.”

6. The Engineer, who assisted the Commissioners, stated in his report, under the heading “Details of work done at site, thus:

“Anyhow the contractor has executed a minimum amount of work so far up to the commission inspection date of 3.1.2014 of Rs. 2,27,90,383/- which is 72.24% of the revised estimate and 97.09% of the original work (Estimate PAC). There are some minor damages in the completed portion of BT Surface and white topped portion (Concrete Road) and the general condition of the whole work executed by the contractor is satisfactory. A detailed item wise statement is prepared and appended herewith for perusal as Annexure A.”

7. The Commissioners' report would indicate that factual details upon which Exhibit P15 order is founded, are erroneous. An order passed on erroneous data has affected the rights of the appellant/Writ Petitioner. On that short ground Exhibit P15, in our view, is liable to be quashed. Accordingly, we quash Exhibit P15.

8. The Superintending Engineer, PWD, Roads & Bridges, North Circle, Kozhikode, will consider and dispose of the matter afresh, as expeditiously as possible, after affording an opportunity of being heard to the appellant/Writ Petitioner. The Commissioners' report and the Engineer's report and account shall be produced by the appellant/Writ Petitioner before the Superintending Engineer. The Superintending Engineer shall take into account the Commissioners' report as well as the Engineer's report before taking a final decision in the matter.

9. The work involved was in respect of a road. The contract was awarded in 2010. Even now it is not completed. The original period for completing the work was extended twice. The purpose for which the work was awarded has been defeated by all the concerned to the detriment of the general public. If the completion of a contract for construction/repair of a road is not made even within four years, the plight of the users of the road can well be imagined. The parties accuse against each other. The net result is the misery of the general public. The authorities concerned will take into account all these aspects and pass appropriate orders in accordance with law.

10. Since Exhibit P15 order is passed on incorrect data and since that data was found to be incorrect by appointing Joint Commissioners, we are of the view that the Government should bear the expenses of the Commissioners and expenses of the Engineer in submitting the reports. Before conducting a final hearing, a sum of 40,000/- shall be paid by the first respondent to the appellant/Writ Petitioner. Taking into account the work done by the Engineer, we think that an additional remuneration of 5,000/- should be paid to the Engineer. The appellant/Writ Petitioner shall pay the said amount of 5,000/- to the Engineer within 15 days and proof thereof shall be produced by the appellant before this Court.

11. The Writ Appeal is allowed as above.

W.A No. 1912 of 2013

Dated this the 19 day of December, 2013

K.T Sankaran, J.:— When the Writ Appeal came up for admission on 17 December, 2013, we passed the following order:

“We heard the learned counsel for the appellant at length. Ext.P15 order shows that more than 50% of the work remains to be completed. The learned counsel for the appellant referred to paragraph 10 of the counter affidavit filed by the first respondent dated 15.3.2013 in W.P(C) No. 5690 of 2013 (another Writ Petition filed by the appellant) wherein it is stated that “over all 70% of total works completed so far”. The learned counsel for the appellant submitted that nearly 90% of the work was over and the work could not be completed within the extended period since the Department did not fulfil certain mandatory requirements in order to complete the work and since a stop memo was issued even before the expiration of the extended period.

2. Learned counsel for the appellant submitted that the appellant is prepared to take out a commission to substantiate the contention that 90% of the work is over. Learned Government Pleader sought for a short time to get instructions. Since the matter is urgent and since the Courts are going to be closed on 20.12.2013, we are inclined to grant only a day's time to get instructions on the prayer made by the appellant that a Commissioner may be appointed.”

2. Learned Government Pleader submitted that the respondents have no objection in appointing a Commissioner.

3. Accordingly, Advocate Prijith. P. and Advocate Vinay. V. are appointed as Joint Commissioners to inspect the site and to submit report in respect of the disputed questions mentioned above. The Commissioners would be free to seek the help of a competent Engineer for the purpose of enabling them to prepare a report which would throw light on the disputed question involved in the case. The appellant as well as respondents would provide all assistance to the Commissioners for execution of their work. The Commissioners would be entitled to call for any record from the appellant as well as respondents 3 and 4 for the purpose of executing the work entrusted to them.

4. The initial batta of the Commissioners is fixed at Rs. 15,000/- each, which shall be paid by the appellant directly to the Commissioners before executing the work. The batta payable to the Engineer is fixed at Rs. 10,000/-. The Commissioners shall file the report on or before 6 January, 2014.

5. In the meanwhile, the work shall not be entrusted to any other contractor by the respondents till 8 January, 2014. Post on 7 January, 2014.