Shaji Thomas vs The Superintending Engineer, The Executive Engineer and The Asst. Executive Engineer

Antony Dominic, J.—In this writ petition, Petitioner challenges Exts. P9 and P10.

Briefly stated facts of the case are that the work of construction of earthern road in the campus of Government Engineering College, Painavu was awarded to the Petitioner. Ext.P1 is the agreement that was entered into between the Petitioner and the first Respondent, which contains the agreement schedule as well. As per Clause 4 of the agreement, the contractor was to have completed the works within six months from the date of handing over of the site. Ext.P2 shows that the site was handed over to the Petitioner on 19-03-2010. Relying on Ext.P3, a circular issued by the Chief Engineer on 28-08-1978, Petitioner submits that the earth work could not have been started before the initial levels are approved by the competent authority of the department.

It is the case of the Petitioner that, immediately after Ext.P1 agreement was signed on 11-03-2010, he made arrangements for clearing the thick and thorny jungle and small trees of girth up to 30 cm in order to enable the Respondents to take the initial levels. It is stated that, despite his having made the site ready for the Respondents to take the initial levels, there was no action from their part, as a result of which, he could not commence the work. It is stated that, in the meanwhile, recognising the cost escalation both towards material and wages, the rates were revised by 30% with effect from 13-05-2010. As in the meanwhile, there was no progress in the matter on account of the inaction of the Respondents, it is alleged that the Petitioner issued Ext.P4letter dated 30-07-2010, informing the first Respondent that, on account of the delay in taking the initial levels, he was unable to commence the work. However, the second Respondent issued Ext.P5 letter dated 10-08-2010, accusing the Petitioner of being guilty of delay.

It is stated that, on receipt of Ext.P5, Petitioner issued Exts.P6 and P7 letters to the Respondents, informing them that on account of delay in taking initial levels, he cannot commence the work. In these letters, Petitioner also stated that, on account of the delay of the Respondents, since work could not be commenced and that, as in the meanwhile the rates were revised, he should not be compelled to execute the work at the agreed rates. Thereafter, he received Ext.P8 letter from the third Respondent, making allegations against him and requesting him to start the work immediately and to complete it at the earliest. He was also informed that, if he fails to start the work soon, that will be considered as a breach of contract and that the work will be terminated at his risk and cost. While so, Respondents 1 and 2 issued Exts.P10 and P9 dated 14-10-2010 and 07-10-2010 respectively, directing the Petitioner to commence the work immediately and informing him that, in case of his failure, steps will be taken for re-tendering the work at his risk and cost. It is on receipt of Exts.P9 and P10, the Petitioner has filed this writ petition.

Main contention raised by the learned Counsel for the Petitioner is that although he had done the work of clearing the site for the Respondents to take the initial levels, the initial levels were taken only on 24-11-2010. It is stated that the delay that has occurred is not attributable to him and that, since by the time the contract period has expired and that there was revision in the rates with effect from 14-05 2010, the Petitioner cannot be made liable to execute the work at the agreed rates and at any rate, he is liable to be relieved from the contractual obligations, without making him liable for risk and cost.

The Respondents have filed a detailed statement answering the allegations in the writ petition. In the statement filed, the case set up by the Respondents is that, after the execution of the agreement on 11-03-2010, the site was handed over to the contractor on 19-03-2010. It is stated that, in terms of the agreement conditions, the contractor was to complete 25% of the work within the first one month and the whole work was to be completed within six months. It is stated that the contractor never turned up to start the work till the middle of June and he reported only on 1st of July to start the work at the site and that too, only after the receipt ofExt.R1(a) notice dated 15-06-2010. It is stated that by this time, he had already wasted 60% of the period of completion which was actually the ideal working season in Idukki district. It is also stated that by the time he turned up to start the work, monsoon had set in with full vigor and it delayed the field survey and setting out of works in this difficult hilly terrain. It is also alleged that, in spite of it, even without the contractor''s technical personnel and proactive co-operation, the departmental officers finalised the initial levels proposal alongwith the college authorities and that the contractor delayed the proposal submission by not turning up on time to accept the levels submitted by the Assistant Engineer. It is also alleged that, on physical verification, it was found that the Petitioner had not executed even the very first item of work. First Respondent has also produced Ext.R1(b) letter dated 28 09-2010 issued by the Principal of the Government Engineering College, Painavu, in which also, it is stated that there has not been any progress in the work awarded to the Petitioner. The allegation of the Petitioner that there was a proposal to change the alignment has also been denied by the first Respondent. It is also alleged that, although as per the tender conditions, Petitioner was to appoint one Engineering Degree holder before commencing the work, he did not make any such appointment. Respondents have also indicated the failure on the part of the Petitioner in executing certain other works awarded to him to indicate the inefficiency and poor management on the part of the Petitioner.

Petitioner has filed a reply affidavit, in which, he submits that immediately on handing over the site, he started the work of clearing the thick and thorny jungle and small trees of the measurement mentioned in Ext.P1. In support thereof, he has produced Ext.P11, which is stated to be a photocopy of the account book maintained by him. Petitioner denies the allegation of having received Ext.R1(a) letter. Further, he states that he had appointed a qualified technical personnel, viz., Jawahar R., an Engineering Graduate, who was appointed to supervise the work. Petitioner has also denied the allegation in the statement that he did not turn up in time to accept the levels recorded by the Assistant Engineer. In so far as the other works that are indicated in paragraph 9 of the statement filed also, Petitioner has offered his explanation in paragraph 9 of his reply affidavit.

Thus, from the writ petition, the statement filed by the first Respondent and the reply affidavit filed by the Petitioner, what emerges is that the Petitioner was awarded the contract for the construction of an earthern road for the Engineering College at Painavu in Idukki district. It is a fact that the work could be commenced only after the initial levels were taken. While according to the Petitioner, he had made the field ready for the Respondents to take initial levels, the Respondents failed in doing so. On the other hand, the case of the Respondents is that the Petitioner committed breach of contract and that it is only after issuing Ext.R1(a) letter that the Petitioner turned up and even started the initial works. The Respondents have also made various allegations of the breach committed by the Petitioner which have all been denied by the Petitioner. Therefore, while the Petitioner accuses the Respondents of having committed breach of contract, they are accusing the Petitioner of having committed the same. Unless these factual questions are appreciated and decided with supporting evidences, it is impossible for this Court to decide as to who has committed the breach of contract. Only after such adjudication and a decision is taken, this Court can decide on the correctness or otherwise of Exts.P9 and P10. In my view, such an exercise is impermissible in a proceedings under Article 226 of the Constitution of India, where this Court has to decide the issues raised only on affidavits filed. Therefore, in the facts of this case, the remedy available to the Petitioner is before a Civil Court.

In that view of the matter, this writ petition is dismissed, without prejudice to the right of the Petitioner to approach the Civil Court and if it is so done, the Civil Court will decide the case of the Petitioner untrammeled by anything stated in this judgment.