IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14398 of 2006(L)
1. MONSON JOB @ MANOJ,
... Petitioner
Vs
1. THE COMMISSIONER,
... Respondent
2. THE PROJECT OFFICER,
3. GOVERNMENT OF INDIA,
For Petitioner :SRI.S.ABDUL RAZZAK
For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :05/03/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 14398 of 2006-L
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Dated this the 5th day of March, 2010.
JUDGMENT
Aggrieved by the termination of contract at the risk and cost of the
petitioner, the petitioner has filed this writ petition. The impugned order
has been produced as Ext.P16.
2. The petitioner was awarded with the contract under the scheme
framed by the Central Government, viz. Central Government Rural Roads
Connectivity Scheme in Erattupettah Block. Ext.P1 is the copy of the
agreement. The work involved is the construction of two roads. The
agreement is dated 16.5.2002 and the time stipulated for completing the
work was 24.1.2003. The site was formally handed over on 23.5.2002, but
the petitioner contends that the initial levels were reported for sanction of
the Superintending Engineer only on 7.9.2002 as evidenced by Ext.P2. By
Ext.P3, the Superintending Engineer approved the initial levels on
20.11.2002. The work was started accordingly and the various part bills
have been sanctioned to him as evidenced by Exts.P4 to P6.
3. There was an inspection by the Joint Director, NRRDA (National
Rural Roads Development Agency) and the inspection report has been
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produced as Ext.P7. The inspection report showed that there was a
suggestion for changing the alignment with reduced gradient and to prepare
a revised estimate.
4. Thereafter, the Project Officer, the second respondent herein,
who is a party to Ext.P1 agreement, requested the first respondent for
sanction to complete the road as per the estimate already sanctioned and
approved. The above proposal was made stating that the land owners are
not willing to surrender more agricultural land for the construction of the
road and 80% of the works have been completed. The petitioner submits
that in the light of these developments, the work had to be stopped awaiting
further orders. The first respondent addressed the third respondent,
Ministry of Rural Development, Government of India, in the matter for
giving sanction to complete the road as per the already sanctioned estimate.
This was followed by another inspection and the same is evident from
Ext.P10 letter issued by the Director addressed to the Prof. of Engineering,
College of Engineering, Thiruvananthapuram, who was directed to conduct
the site inspection. On the basis of the inspection, Ext.P11 report was
forwarded by the second respondent to the first respondent.
5. As no further action was being taken in the matter, the petitioner,
by Ext.P12 representation addressed to the second respondent requested to
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take a decision without delay to complete the work after providing a hike
in the rates also. He approached this Court by filing W.P.(C)
No.32624/2005 which was disposed of by Ext.P13 judgment dated 5.1.2006
directing the first respondent herein to take a decision in the matter in
accordance with law, after affording an opportunity of being heard to the
petitioner. Immediately, the petitioner was served with Ext.P14 notice by
the second respondent informing him that the work has not been completed
and unless it is completed within 15 days, the agreement will be cancelled.
Ext.P15 is the communication by the Commissioner of Rural Development
in answer to his representation stating that no hike in the rates is allowable.
Finally, by Ext.P16, the work was terminated at his risk and cost and further
it was proposed to recover the same by appropriate legal action.
6. The respondents have filed a counter affidavit justifying the order.
7. Heard Shri S.A. Razak, learned counsel for the petitioner and
learned Govt. Pleader.
8. Shri S.A. Razak, learned counsel for the petitioner submitted that
the view taken in Ext.P16 cannot be supported. The petitioner was
proceeding with the work in the right earnest and 80% of the work was
completed to the satisfaction of all and there was no default on his part at
all. At the time an inspection was conducted by the Central agency, viz. the
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Joint Director who suggested a realignment, and thereafter he was asked to
stop the work which is evident from Ext.P8 also. It is not a case where the
petitioner, in violation of the obligations under the contract, had stopped the
work. It is only at the instance of the concerned officials, the work had to
be stopped. It is evident from the various communications that respondents
2 and 3 were also seeking for the sanction of the Central agency to continue
the work as per the sanctioned estimate without any modification, in view
of the difficulty to get surrender of required land by the land owners and
the said action was finalized only by Ext.P11 dated 8.3.2004. It is therefore
submitted that the decision to terminate the contract at his risk and cost is
clearly arbitrary. It is further pointed out that only after this Court directed
the respondents to consider the representation filed as Ext.P12 as per
Ext.P13 judgment, immediately Ext.P14 notice was issued even before the
first respondent communicated their decision as per Ext.P15. It is submitted
that the department is trying to wriggle out of their responsibilities in the
matter by merely blaming the petitioner for the delay. It is further
contended that the stand taken in the counter affidavit that there was no
direction to stop the work, is not correct and the same is belied by the
contents of Ext.P8 and other documents.
9. What is pointed out in the counter affidavit and argued by the
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learned Govt. Pleader is that there was no written communication to the
petitioner to stop the work or to deviate from the programme and he was
bound to complete the work and the communication between respondents
1 and 2 and the Central agency are only routine communications and he
ought to have completed the work.
10. Herein, some of the relevant aspects have to be discussed That
the work was being earnestly performed by the petitioner is clear from
Exts.P4 to P6 part bills evidencing payment for a total amount of nearly
Rs.57 lakhs. Ext.P8 is the copy of the report forwarded by the second
respondent to the first respondent after the Joint Director of the Central
agency inspected the sites. In relation to Melukavumattom – Kalluvettam
Road, it is stated as follows:
“Work of the above road is in good progress. 80% of the
formation of the road and protection work completed. Out of 10
culverts 6 Nos have been completed. Approximately Rs.30 lakhs
have been spent for the construction of the road. Most of the
inhabitants of this road are Scheduled Tribes. Work of the above
road is stopped as per the above note. Considering these facts,
gradient given to this road may be admitted and sanction may be
given to complete the road at the earliest as per the already
sanctioned and approved estimate.”
wpc 14398/2006 6
In regard to the second road, viz. Ottayeetti – Thazhathukattupara Road, the
following are the contents of Ext.P8:
“As per the above referred inspection note, gradient between 0.90m
and 800-1020m is steep and Joint Director has directed to re align
the portion. Land owners in the chainages of road are willing to
surrender the extra land free of cost for the construction of this
road. Instructions have already been given to Assistant Engineer,
Erattupetta Block for preparing the topographical survey and
revised estimate of this road. Construction has completed 80% of
th formation of the road. The construction of the road is in good
progress and formation of the road is nearing completion.”
The above position may please be informed to Government of India and
sanction may please be obtained to complete the work as suggested above.”
11. Therefore, the following important aspects are clear from
Ext.P8. It is based on the letter of the Joint Director, NRRDA and the
inspection report. It is clear that in respect of these two roads, the Joint
Director had directed to realign the work. Ext.P7 is the inspection report
by the Central agency which will reveal that he had found that the gradient
is too steep and therefore the topographical survey has to be conducted by
the Project Implementing Unit to facilitate the realignment. Preparation of
revised estimate has also been suggested. Therefore, the entire thing was
dependent upon the preparation of revised estimate after fixing the
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realignment in respect of both the roads which is evident from a combined
reading of Exts.P7 and P8. That is why in Ext.P8 it is specifically requested
that approval may be granted for the estimate prepared, as difficulties
arose with regard to the surrender of land by the land owners for
construction of the roads as proposed by the Central agency. What is
suggested in Ext.P8 is to obtain a sanction from the Central agency itself for
completing the work in respect of these two roads as per the approved
estimate. It is clear from Ext.P8 itself that the work has been stopped as per
the note issued by the Central agency. It cannot therefore be said that
stopping of the work is a unilateral act on the part of the petitioner. True
that written communications have not been served on the petitioner to stop
the work, but in the light of the inspection report of the Central agency it is
clear that the work had to be stopped as the realignment had to be
undertaken, if sanctioned. This is further reinforced by the letter
Ext.P9 from the first respondent to the Ministry of Rural Development,
Government of India, viz. the third respondent herein. This is dated
10.12.2003. In respect of both these works, after referring to the inspection
reports, sanction has been sought to complete the roads at the earliest, as
already sanctioned and as per the approved estimate. Therefore, it is
ununderstandable as to how respondents 1 and 2 could have turned round
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later to put the entire blame on the petitioner for stopping the work.
12. It is evident from Exts.P10 and P11 that the Central Agency
wanted to conduct another inspection and deputed Dr. K.P. Isaac, Professor
in Civil Engineering, College of Engineering, Thiruvananthapuram to
inspect the site and to furnish a detailed report regarding the existing
conditions and guidance given by him in this regard. That the work has
already been delayed, is clearly stated in Ext.P10 itself and actually the
Central agency wanted to depute him so as to complete the execution of
the work after assessing the various local conditions. Again, the second
respondent after the visit by the said Professor, addressed the first
respondent by Ext.P1 stating that even after meetings of the land owners
and the Panchayath members were called several times, the land owners are
not willing to surrender land for additional length as suggested. It is
evident from Ext.P11 that the State Technical Authority for PMGSY,
during the visit, directed to demarcate additional length for easing the
gradient. Evidently, therefore, the same was under contemplation and
therefore the petitioner could not have completed the work as per the
original alignments.
13. These facts were pointed by the petitioner in Ext.P12 wherein he
has stated that because of the delay there had been hike in the cost of diesel,
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steel, cement, sand, rubble and metal.
14. Therefore, the stand taken in Exts.P14 and P15 by the respondents
herein that there was no hurdle from any corner to complete the work in the
stipulated time, cannot be accepted at its face value. This is clearly a
distorted attempt to pass the buck to the petitioner for the delay occurred
which was not because of any inaction on his part and 80% of the work was
already over also. In fact, a reading of Ext.P16 shows that the notices have
been issued to him only from 31.10.2005 onwards which is even after
receipt of Ext.P12 request made by the petitioner. They were issued long
period after Exts.P10 and P11 were addressed to the respective parties.
This also justifies the conclusion that the work was stopped after the
period of inspection by the Joint Director, NRRDA and as sanction was
sought for by the first respondent from the Central Government to complete
the work as per the original estimate. In fact, the Ministry agreed to
proceed with the work only by Ext.R2(a) letter. Para 2 of Ext.R2(a)
evidences the decision of the Ministry in the following words:
“……this Ministry hereby agrees to allow the Executing Agency to
complete the road with gradients marginally more than the
exceptional gradient on limited stretches with necessary
cautionary boards indicating the steep gradient. However, the
State Government may ensure that such instances of providing
wpc 14398/2006 10
steep gradients beyond the permissible values should not get
repeated and the State Executing Agency has to prepare a
comprehensive DPR and make sure that all geometric parameters
are as per Rural Roads Manual for any project submitted for
consideration in future.”
Finally, it is requested that “further necessary action to complete the road
work may please be taken accordingly.”
15. These are documents in support of the plea of the petitioner that
he cannot be blamed at all for the stoppage of work and there was actually a
proposal for realignment and to revise the estimate. What is attempted in
the counter affidavit is to show that no written communications were issued
to the petitioner to stop the work or deviate from the programme. The
evidence, as above, shows the other way, especially Ext.P8 which records
that the work remained stopped already, in view of the intervening
developments.
16. In that view of the matter, the termination of the work at the risk
and cost of the petitioner is clearly arbitrary and is without any application
of mind and also without considering the relevant aspects. Any
administrative decision in such circumstances cannot survive.
17. The termination of the work at the risk and cost of the petitioner,
wpc 14398/2006 11
cannot therefore be upheld and the petitioner cannot be saddled with any
liability for the loss and damages as indicated in Ext.P16. Hence, Ext.P16 is
quashed. The learned counsel for the petitioner had submitted that various
amounts towards bank guarantee, performance guarantee, redemption
amount, security and balance payment are due to the petitoner. There will
be a direction to the respondents to release the various amounts due to the
petitioner towards bank guarantee, performance guarantee, redemption
amount, security and the balance payment, if any, for the work already
done. The same will be quantified and disbursed within a period of three
months from the date of receipt of a copy of this judgment.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/