BASIL ASSOCIATES Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner was a sub contractor under the 4th respondent viz., Kerala State Construction Corporation in the work of formation of Badagara - Mahe Canal, as per Ext.P1 work order. According to the petitioner, petitioner furnished Ext.P2 bank guarantee. However, the work of the petitioner was terminated on 25.10.2014. According to the petitioner, Ext.P3 work bill would show that an amount of Rs.14,12,340/- is remaining as security deposit and Rs.9 lakhs as retention amount from sanctioned work bills, are due to the petitioner. It is also stated that, Ext.P6 would reveal that security deposit amount is still with the 2nd respondent and it has not been transferred to the 4th respondent. Grievance highlighted by the petitioner is in respect of non-release of the aforesaid amounts, and seeks the following reliefs:

(2.) A detailed counter affidavit is filed by the 2nd respondent refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, as per item No.1 of the agreement schedule, viz., Ext.R2 (a), removal of unserviceable cut earth and dumping it in places of his own choice was the contractor's responsibility. However, the same was not carried out by the petitioner. It is also stated that, as per letter dated 10.01.2014, 4th respondent has reported that the petitioner was a sub contractor of the 4th respondent, and hence they together were responsible for removing the excavated earth from the site, evident from Ext.R2(b). But the excavated earth was dumped into the nearby farms and paddy fields. Consequently, there was strong protest against the said action from the public.

(3.) It is further stated that, even after repeated instructions from the field officers, neither the main contractor nor the sub contractor has made any sincere effort to remove the dumped earth from private property. It is also the contention of the 2nd respondent that, it is the contractual obligation of the contractor to execute the work as per the agreement schedule. Removal of unserviceable cut earth and dumping it in places of his own choice was the contractor's responsibility, and the contractor took very irresponsible attitude in this regard. As the 4th respondent was not ready to take any active measure to remove the earth dumped in the private lands, the closure agreement was not executed before admitting the final bill, 10% of the last bill amount i.e., Rs.14,12,340/- has been recovered from the CC 3rd and final bill for the work towards retention as per rules. Meanwhile, people residing in the locality strongly protested against dumping waste earth into their lands and submitted a petition. It was under the above circumstances, direction was given by the 2nd respondent to the 3rd respondent to withhold the retention amount, evident from Ext.R2(c) dated 12.02.2015.