K.M. SALIM Vs. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, (CHAIRMAN STANDING EMPOWERED COMMITTEE FOR THE WORK PMGSY PACKAGE NO.KR 09

JUDGEMENT

(1.) The petitioner has approached this Court challenging Ext.P5 order, whereby the respondents, with whom the petitioner had entered into a contract for construction of a road, cancelled the work that was awarded to the petitioner, on the ground that the petitioner did not comply with the obligations under the contract. Ext.P5 order makes it clear that the work awarded to the petitioner was terminated without risk and cost to the respondents. In the writ petition it is the case of the petitioner that, the stand of the respondents in Ext.P5 order that the petitioner had not completed any portion of the work is not correct, since the petitioner had actually done a substantial portion of the work and this would be evident from a perusal of the 'M book' that was maintained by the respondents. It is also stated that, contrary to the obligations that were required of the respondents to make available the site for road construction free of all utilities such as electric post, water pipes etc., the respondents delayed in removing the electric posts etc., thereby leading to a delayed execution of the work by the petitioner.

(2.) A counter affidavit has been filed on behalf of the 2nd respondent. Therein, the claim of the petitioner, with regard to the completion of various works, is vehemently denied by the respondents. It is stated that, pursuant to acceptance of the tender submitted by the petitioner, a contract was entered into with him on 23.07.2009, but after executing the agreement, the petitioner refused to proceed with the work on the pretext that utilities were not shifted. It is stated that, although some delay had occurred in shifting the utilities, the petitione,r who could have carried out the work at places where no utilities existed, did not do so and it was under those circumstances, that the respondents were constrained to issue Ext.P5 order cancelling the work awarded to the petitioner.

(3.) I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that, since the issue involved in this writ petition is based on a contract entered into between the petitioner and the respondents, and there is a dispute between the parties on factual aspects such as the extent of work done, and whether or not the obligation of the respondents had been fulfilled by them. The jurisdiction under Article 226 of the Constitution will not be an appropriate one for examining the said issues. The petitioner ought to be relegated to pursue his remedy before the Civil Court, where the factual aspects of the matter can be established by adducing evidence. Accordingly, I find that the prayers sought for in the writ petition cannot be granted. As a result, the writ petition in its challenge against Ext.P5 order fails, and is dismissed, without prejudice to the right of the petitioner to move the Civil Court for appropriate reliefs.