JAYAPRAKASHAN P. Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is an A class Government Contractor, who was awarded the work 'NABARD RIDF XX-construction of neervaram kalluvayal L1 scheme in Panamaram Panchayat Wayanad district'. Termination of contract as per Ext.P8 order is under challenge in this Writ Petition.

(2.) The petitioner executed Ext.P1 agreement on 4.3.2016. It is stated that on account of the protest of the owners of landed property and the nearby residents, the work got delayed. On the request of farmers the 6 th respondent requested for a revised estimate as per Ext.P2 letter addressed to the 3 rd respondent. The revised estimate was sanctioned only on 18.4.2018, after a period of 20 months. It is stated that in August, 2018, the area was affected with heavy flood and the work had to be stopped. Except the pipeline work, the petitioner could proceed with the work of transformer yard, other cable works and concrete works after the rain subsided. In the meanwhile, extension of time was granted till 3.6.2019 without imposing any fine. Even though the petitioner submitted Ext.P3 application for extension of time for the period from 3.6.19 to 31.3.2021, there was no response. The work relating to laying of 1.50 km PVC pipe and 350mm diameter D1 pipe was remaining. According to the petitioner, pipe manufacturing factory remained closed on account of Covid 19 pandemic and there was shortage of materials. The petitioner thereupon submitted Ext.P4 representation again requesting for time for the period from 3.6.19 to 31.3.2021. It was followed by Ext.P5 representation dt.8.1.2021. The petitioner further states that a meeting was convened by the District Collector on 13.1.2021 when it was decided to fix the time for completion of the work as 31.3.2021 and that the Department would co- operate with the extension of time in case the pipes were brought to the site before 20.2.2021. The petitioner states that the said decision was without ascertaining the factual circumstances because the pipes were to be obtained from Gujarat where the factories were remaining closed due to the scarcity of workers on account of the pandemic. Apart from that, in the absence of a valid agreement, the petitioner would not be able to take the risk of purchasing pipes spending such huge amount of about Rs.70 lakhs. Thereupon, the petitioner submitted Ext.P7 representation on 15.1.2021 before the 2nd respondent. Ext.P8 order of termination was passed thereupon on 25.01.2021, without considering her request.

(3.) The 2nd respondent has filed a statement. It is stated that the site was handed over to the contractor on 4.3.2016 fixing the date of completion as 3.3.2017; time was extended 5 times upto 3.6.2019 at the request of the contractor without imposing fine; the contractor did not turn up to complete the work despite several attempts from the part of the departmental officers; notices were given to contractor on 24.08.2020, 7.9.2020 and 6.11.2020 directing to resume the work; on receipt of the notice dt.6.11.2020, the petitioner attended the office and assured to complete the work before 28.2.2021; as per Ext.R2(a) letter the petitioner was informed that the NABARD XX tranche would be closed by 31.3.2021 and the contract would be terminated at his risk and cost, in the event of non-completion of the work; thereafter a meeting was held in the chamber of District Collector, Wayanad with the petitioner, NABARD officials and officials from the department; in that meeting it was unanimously decided that the work could be finished without any further extension; the petitioner instead of resuming the work submitted Ext.P7 letter on 15.1.2021 demanding further time and rate escalation; after consultation with the District Collector, who authorised the agreement authority to take a decision, the Department was forced to terminate the work at the risk and cost of the petitioner; petitioner has completed only 28% of the work; the rest of the work has to be rearranged through another agency and the loss sustained by the Government is to be recovered from the petitioner; extension of time was granted 5 times considering the request of the petitioner till 3.6.2019; sanctioning of revised estimate on 18.04.2018 did not stand in the way of carrying out the work of laying of DI pipes, since the length of DI pipes in the sanctioned revised estimate is less than that of the original agreement; departmental officials had not directed the petitioner to stop the work pending revision; on the other hand, the petitioner failed to arrange men and machinery to complete the work in time. Pointing out the conditions in Annexure R2(b) conditions of contract, it is stated that there is no provision for escalation of rates or extension of time beyond what is provided in the agreement. There was no response from the petitioner's side to resume or complete the work despite reciept of notices. Even after the meeting convened on 13.1.2021, in which the petitioner had participated, he did not turn up to resume the work. It is stated that the petitioner's request for further time extension was not forwarded to higher authorities as the petitioner did not respond to the repeated notices issued to him. The demand for price escalation of pipe items and also for the extension of time was contrary to the decision taken in the meeting and the conditions of contract. It is stated that it is the result of inaction on the part of the petitioner in arranging and completing the work within the agreed period. The petitioner was responsible for executing the works of pumphouse, culvert, concrete canals and D1 and PVC pipeline works, out of which he had completed the works only to the tune of Rs.64,26,127/- as against the revised estimate of Rs.3,15,75,121/- which comes to 28% of the work financially. It is stated that even after the site conditions became favourable, the petitioner had not turned up to complete the work. It is stated that after 2018 flood, he had executed only the work of transformer yard and duct cable during the period of December, 2018 to 30.1.2019, cost of which was only Rs.1.5 lakhs. It is stated that even though extension of time upto 03.06.2019 was granted from the offices of the respondent on 27.11.2019, the petitioner had attended their office only on 10.12.2020, after one year, for executing supplementary agreement, that too, after several reminders. It is submitted that several works using DI pipes are going on and therefore non availability of pipes is not at all a genuine reason. It is further stated that the petitioner had furnished a photocopy of the order dated 15.09.2020 claiming that advance payment was made for pipe, which was found not genuine. It is stated that the NABARD XX tranche will expire on 31.3.2021 and therefore the work has to be completed before that date.