IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1112 of 2007()
1. JOSE THOMAS M., GOVERNMENT CONTRACTOR,
... Petitioner
Vs
1. UNION OF INDIA, REP.BY THE
... Respondent
2. THE CHIEF ENGINEER,
3. THE DEPUTY CHIEF ENGINEER (CONSTRUCTION)
4. THE ASSISTANT EXECUTIVE ENGINEER
For Petitioner :SRI.K.BABU THOMAS
For Respondent :SRI.ALEXANDER THOMAS, SC,RAILWAYS
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :25/05/2007
O R D E R
H.L. DATTU, C.J. & K.T. SANKARAN, J.
-------------------------------------
W.A. No.1112 of 2007
------------------------------------
Dated this, the 25th day of May, 2007.
JUDGMENT
H.L. DATTU, C.J.
This appeal is filed against the order passed by the learned
single Judge in W.P.(C) No.10406 of 2007.
2. The petitioner is a contractor. He was before this court, inter
alia, seeking the following reliefs:
“(i) Issue a writ of mandamus, or any other appropriate writ, or
order, or direction to the respondents requiring to consider
and pass orders on Ext.P6, P7 and P9, to take final level
measurement of all items and quantities carried out by the
petitioner in the presence, before allowing to carry out the
balance works at site.
(ii) Issue a writ of prohibition, or any other appropriate writ, or
order, or direction to the respondents, interdicting them from
in any way allowing to carry out the balance works at site
specified in Ext.P1, till final measurement of all items and
quantities is taken in the presence of the petitioner and
copy of recorded measurement is handed over to him, to
raise objection, if any as is required.
(iii) Appoint an Advocate Commissioner to oversee final
measurement of all items and quantities of work carried out
by the petitioner at site pursuant to Ext.P1 before allowing
to carry out the balance works at site, to prevent alteration
of the quantity, appearance, and nature of the work carried
out by him, in any manner; and
(iv) Grant such other reliefs this Hon. Court may deem proper,
just, equitable and necessary in the peculiar facts and
circumstances of the case including the costs incurred by
the petitioner in these proceedings.”
W.A.No.1112 of 2007
:: 2 ::
3. This court, while entertaining the writ petition, had
granted an interim order dated 27.3.2007. The interim order reads as
under:
“If the petitioner appears before the 4th
respondent, tomorrow at 10 A.M., measurement shall
be taken at his presence. This order is being issued on
the basis of the submissions made by the learned
counsel for the respondents.”
4. Alleging that the respondents have wilfully and
deliberately disobeyed the orders and directions issued by this court,
the petitioner had filed Contempt Petition No.577 of 2007. This court
by its order dated 30.3.2007 has rejected the writ petition and the
contempt petition, and while doing so the learned Judge has observed as
under:
“If there is any controversy as to whether
measurements following the order dated 27.3.2007 have
not been appropriately taken, the Railways have to
sustain their decision and action on the basis of
measurements taken by them earlier, which, according to
them, have been recorded in the presence of
independent witnesses. At any rate, I am of the firm view
that any dispute between the parties cannot further deter
the work in question, firstly because the work has been
re-arranged and, secondly, because any further delay in
carrying on with the work will adversely affect the
exchequer by any intervening monsoon. That apart, the
questions raised are essentially disputed questions of
W.A.No.1112 of 2007
:: 3 ::
facts, which cannot be left to be decided in the writ
petition. I also do not find that the respondent in the
contempt case, is at least prima facie, guilty of
disobedience.”
5. Aggrieved by the aforesaid order of the learned single
Judge, the appellant is before us in this appeal.
6. As we understand, the primary relief sought for by the
petitioner in the writ petition was for a direction to the 4th respondent to
take appropriate measurement of the work done by the petitioner
pursuant to a contract awarded to him. In fact, by an interim order, this
court had granted the main relief itself to the petitioner.
7. Since, according to the petitioner, the respondents had
not complied with the interim order dated 27.3.2007, he filed a contempt
petition before this court as C.O.C.No.577 of 2007. This court, after
detailed consideration of the allegations made, has rejected the same and
thereby rejected the writ petition also.
8. As we have already stated, the main relief sought for
by the appellant/petitioner against the respondents was to direct them
to make appropriate measurement of the work carried out by the
petitioner pursuant to contract awarded to him. This court, while
entertaining the writ petition, had directed the 4th respondent to take
appropriate measurement of the work done by the petitioner. Since the
main prayer sought for by the petitioner is granted, while granting the
W.A.No.1112 of 2007
:: 4 ::
interim prayer by this court it cannot be said that the writ petitioner is
aggrieved by the orders passed by this court on 27.3.2007 and 30.3.2007.
In view of the above, writ appeal deserves to be rejected and accordingly
it is rejected. Ordered accordingly.
Sd/-
H.L. DATTU,
CHIEF JUSTICE.
Sd/-
K.T. SANKARAN,
JUDGE.
sk/DK.
//true copy//
P.S. To Judge