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Judgment
N. NAGARESH, J.
R.P. Nos.229 and 289 of 2022 arise out of the common judgment dated 26.04.2021 passed in W.P.(C) Nos.23006 of 2019 and 15489 of 2020 respectively. The writ petitioner in W.P.(C) No.23006 of 2019 is the review petitioner in both the review petitions.
In W.P.(C) No.23006 of 2019, the petitioner who is Project Management Consultant insisted that no further amount should be paid to the 4th respondent-Contractor without considering the objections of the petitioner. The contract in question related to the construction of campuses for the Kerala Maritime Institute at Neendakara. The 4th respondent-Contractor filed W.P.(C) No.15489 of 2020 seeking to release ₹2,72,98,311/- illegally withheld from him with 18% interest per annum.
In the construction work, the piling work was proposed to a depth of 22 metres. After piling to a depth of 22 metres, no hard strata was found. Hard strata could not be found even after further piling up to a depth of 50 metres and thereupon, foundation drawings had to be changed. The Director of Ports therefore did not pay consultant fee to the petitioner. The petitioner alleged that the loss, if any, caused in piling work is due to the fault of the Contractor and no further amount should be paid to the Contractor.
This Court, after examining the pleadings and perusing the documents, found that the loss in piling / foundation work was due to the drawings prepared based on soil investigation report prepared by M/s.LAN-Dec Engineers, Cochin which was an agency engaged by the petitioner. The extra cost incurred was as a result of the petitioner engaging a substandard agency for soil testing. Taking into consideration the facts of the case, W.P.(C) No.23006 of 2019 filed by the petitioner was dismissed and a direction was given in W.P.(C) No.15489 of 2020 to release the amount withheld from the Contractor.
To arrive at the conclusion, this Court relied on the findings of the Director of Ports to the effect that the petitioner sought recovery of loss from the Contractor in a revenging manner. The Chief Executive Officer of the Kerala Maritime Board also had filed a counter affidavit stating that there are sufficient reasons to terminate the agreement with the petitioner due to inadequacy of service. The Chief Executive Officer had also found that the excess work was necessitated as a result of violation of conditions of agreement by the petitioner who made deviation, alteration and addition to the approved drawings without the knowledge and prior written consent.
The petitioner states that M/s.LAN-Dec Engineers, Cochin was engaged as Soil Testing Agency by the Government and hence the petitioner cannot be blamed for engaging them. The second agency M/s.CGL-GEO Infomatic was engaged by the Contractor. The finding to the contrary by this Court is erroneous.
The petitioner further states that loss, if any, occurred because excavation was carried by the mining agency in non-excavation zone and the mining agency refused to carry out back filling of the excavated area, which affected the soil bearing capacity. The Finance Department of the Government of Kerala conducted enquiry and their report suggested that extra mining and extra construction work were done by the respondents without getting approval from superior or approving authority. Hence, the judgment of this Court suffers from errors apparent on the face of the record and the judgment is liable to be reviewed, contended the petitioner.
Pursuant to the direction of this Court, the 1st respondent-State of Kerala has filed a Statement dated 04.08.2022 in R.P. No.229 of 2022. The Statement discloses that the Finance Inspection Wing of the Government has recommended to conduct investigation by CBI/VACB regarding the collusion of Port officials and IREL regarding the excavation and extraction of minerals and back filling of excavated land. Disciplinary action is also recommended against the officials.
After hearing the Senior Counsel assisted by the counsel for the review petitioner and the Senior Government Pleader, the Standing Counsel and the counsel appearing for the respondents, this Court finds that the common judgment in the writ petitions was delivered based on the documents available on record. As regards engagement of M/s.LAN-Dec Engineers, Cochin for Soil Investigation / Test by the petitioner, though the petitioner has stated that the agency was engaged by the Principal Surety, there is no document on record to establish the statement. The counter affidavit filed by the 6th respondent in W.P.(C) No.23006 of 2019 would go to show that it is the petitioner who recommended under letter dated 11.11.2010 for issuance of work order to M/s.LAN-Dec, Cochin for soil testing. Therefore, I do not find any error in the judgment in that regard.
However, since the Finance Inspection Wing has recommended CBI/VACB enquiry in the matter, the review petitions are disposed of with the following clarifications:
The judgment in W.P.(C) No.15489 of 2020 should be treated as one upholding the claim of the Contractor for receiving the amounts withheld from them. Any observation in the common judgment dated 26.04.2021 in the writ petitions shall not prejudice any CBI/VACB enquiry, if conducted. It shall also not affect the claims/entitlement, if any, of the review petitioner against the Kerala Maritime Society / Kerala Maritime Board.