Anwar.P vs Calicut University

N. Nagaresh, J

Petitioner, who is an A Class Contractor undertaking works for PWD, has approached this Court seeking to quash Exts.P8 and P11 and to direct respondents 1 and 2 to disburse the security deposit to the petitioner by executing Ext.P3 agreement. The petitioner has also sought for certain incidental reliefs.

The petitioner was awarded with the work of Construction of Ring Road connecting newly constructed Life Science and Mathematics Department by the University of Calicut. Ext.P3 agreement was executed on 27.02.2020. The estimate amount was ₹23,35,925.67. The petitioner states that though Ext.P2 agreement was executed and work had to be completed within six months, the respondents did not handover the work site to the petitioner. The petitioner submitted Ext.P5 representation dated 09.03.2020, Ext.P6 representation dated 19.03.2020 and Ext.P7 registered letter dated 13.07.2021 to the respondents. In spite of the representations and letters, work site was not handed over.

To the surprise of the petitioner, the respondents passed Ext.P8 order dated 22.07.2021 directing the petitioner to start work within three days failing which the security deposit was to be forfeited and the contract was to be cancelled at the risk and cost of the petitioner. The petitioner states that the said order was passed without considering Exts.P6 and P7 representations. To Ext.P8, the petitioner sent Ext.P9 representation dated 10.08.2021 pointing out that the site has not been handed over to the petitioner in spite of his request.

The respondents, however, passed Ext.P11 order dated 10.09.2021 cancelling Ext.P3 agreement at the risk and cost of the petitioner. An amount of ₹1,16,800/- by way of security deposit was forfeited. The petitioner states that Ext.P11 order is against Clause 22 of Ext.P2 and paragraphs 14.3, 14.4, 14.5 and 2102.1 of the Kerala Public Works Department Manual.

The learned counsel for the petitioner argued that Exts.P8 and P11 were passed without hearing the petitioner, in violation of the principles of natural justice. The respondents have not complied with Clause 22 of Ext.P2 and paragraphs 14.3, 14.4, 14.5 and 2102.1 of the PWD Manual.

The respondents failed to handover the site. The petitioner had submitted Exts.P5 and P6 representations requiring to handover the same. No action was taken thereon. Now, the contract has been terminated at the risk and cost of the petitioner. For no fault of the petitioner, he is being penalised, contended the counsel for the petitioner.

The 1st respondent-University resisted the writ petition. The 1st respondent stated that Ext.P5 and P6 are fraudulent documents which were never received by the University. The site was handed over to the petitioner within time in terms of the agreement. The site was available free of any hindrance or encumbrance, since it is only a road within the University. The petitioner did not turn up to execute the work.

The Standing Counsel for the respondents further argued that as per paragraph 2116.1 of the Kerala PWD Manual, the Agreement Authority has the power to cancel the contract and arrange the work otherwise, in the event of default by the contractor. The damages and penalties and can be recovered from the contractor.

I have heard the counsel for the petitioner and the Standing Counsel for the respondents.

The case put forward by the petitioner is that as per paragraph 14.3 of the PWD Manual, the contractor has to take over charge of the site by signing the acknowledgment form and commence the work within ten days from the date of execution of agreement. As per paragraph 2102.1, after executing the agreement, the contractor or the authorised agent shall take over the site from the Assistant Engineer within ten days and commence the work immediately. If the contractor does not turn up, the acknowledgment form for handing over of the site duly signed by the Assistant Engineer shall be sent to the contractor through registered post and it shall be deemed that the contractor has taken over the site from the date of posting. In the case of the petitioner, no such communication has been sent to the petitioner through registered post. Therefore, termination of the work with risk and cost of the petitioner is illegal and unsustainable.

Admittedly, the petitioner had executed Ext.P3 agreement on 27.02.2020. Thereafter, no work was carried out. The petitioner claims that he has sent Exts.P5 and P6 representations 09.03.2020 to the Executive Engineer. The respondents would dispute this. According to the respondents, the Executive Engineer has not received Exts.P5 and P6 representations and those are concocted documents.

The petitioner states that he had sent Ext.P7 letter by registered post. However, the postal acknowledgment receipt and the delivery slip of Ext.P7 letter issued by the postal authorities, copies of which were made available to the Court, would show that Ext.P7 registered letter was delivered to the Executive Engineer only on 26.07.2021, after the Executive Engineer directed the petitioner to start the work within three days, as per Ext.P8.

It has to be further noted that the petitioner has not submitted any application for extension of time to complete the work, before the expiry of the agreement period. As per paragraph 2112 of the PWD Manual, even if the failure of the contractor to complete the work on the stipulated date is due to any departmental delays, the contractor has to apply for extension of time through the Assistant Engineer before the expiry of the period of completion. The petitioner has not submitted such an application.

In the facts and circumstances of the case, this Court is not inclined to interfere with the impugned orders at Ext.P8 and P11 passed by the respondents. The writ petition fails and it is accordingly dismissed.