IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941

WP(C).No.30472 of 2012

PETITIONER/S:

D.A.MOOSAKUNHI
AGED 67 YEARS
S/O ANDUNHI, PERAL, P.O.MOGRAL, KUMBALA,
KASARAGOD DISTRICT.

BY ADVS.
SRI.M.SASINDRAN
SRI.PRADEESH MATHEW

RESPONDENT/S:
1 THE ASSISTANT EXECUTIVE ENGINEER
HARBOUR ENGINEERING SUB DIVISION, CHERUVATHOOR,
THURUTHY, KASARAGOD DISTRICT-673 121.

2 THE EXECUTIVE ENGINEER

HARBOUR ENGINEERING DIVISION,
KASARAGOD DISTRICT-673 121.

3 THE CHIEF ENGINEER

HARBOUR ENGINEERING DEPARTMENT,
THIRUVANANTHAPURAM-695 001.

4 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT FISHERIES
DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.

SMT.VINITHA.B, GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

28.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.30472 of 2012 2

JUDGMENT

This writ petition is filed by the petitioner

seeking to quash Exts. P7, P8 and P9 orders passed

by the State Government, Assistant Executive

Engineer and the Assistant Executive Engineer

respectively dated 17.09.2012, 29.09.2012 and

05.11.2012 declining the relief sought for by the

petitioner to waive the contract value as per

Ext.P1 agreement executed by the petitioner on

account of the contract secured by the petitioner

for collection of toll from boats and jettis at

Thaikadappura harbour, Cheruvathoor, Kasaragod

District. It is an admitted fact that, petitioner

participated in the tender and has quoted an amount

of Rs.1,35,000/-. According to the petitioner,

agreement was executed only on 10.11.2011 and

therefore petitioner could not enjoy the entire

contract period as is notified in the tender

inviting notification. Any how, 50% of the contract

value in accordance with the terms and conditions

WP(C).No.30472 of 2012 3

of the notice inviting tender was remitted by the

petitioner on 05.11.2011 and the balance was to be

paid by the petitioner after the period of the

contract i.e. 9/11/2011, however failed to pay the

same.

2. Case of the petitioner is that, various

representations were filed before the State

Government as well as the statutory authorities and

some of the statutory authorities have even made

recommendations to the superior statutory

authorities for taking into account the bid

submitted by the next lowest tender at Rs.70,000/-

and consider the case projected by the petitioner

sympathetically. Anyhow, all these representations

were declined by the respective statutory

authorities and finally as per the orders under

challenge, petitioner was directed to pay the

amounts due. It was thus aggrieved by the coercive

action apprehended from the respondents, this writ

petition is filed.

3. A detailed counter affidavit is filed by

WP(C).No.30472 of 2012 4

the 1st respondent justifying the stand adopted and

also pointing out that, petitioner is bound by the

contractual terms and conditions executed by and

between the parties as per Ext.P1 agreement. It is

also pointed out by learned Government Pleader

during the course of arguments that, as per the

Clauses 17,18 and 19 of the notice inviting tender,

which is not produced by the petitioner there are

imperative and peremptory conditions, which is to

be followed by the petitioner in the matter of

payment of amount and further that no waiver can be

made in respect of the amount quoted by the

applicants. Therefore, the coercive action

initiated by the respondents are justified and

petitioner is liable to pay an amount of

Rs. 67,500/- towards the balance on account of the

contract.

4. I have heard learned counsel for the

petitioner and the learned Government Pleader and

perused the pleadings and documents on record.

5. The issue raised by the petitioner lies in

WP(C).No.30472 of 2012 5

a very narrow compass because the petitioner has

already executed an agreement agreeing to pay the

amount of Rs.1,35,000/-. It is also an admitted

fact that, petitioner has paid 50% of the contract

value in accordance with the terms and conditions

contained under the notice inviting tender, however

the 50% of the balance amount, which was agreed to

be paid by the petitioner on termination of the

contract has been failed to pay. It was there upon

that, revenue recovery proceedings were initiated

against the petitioner to recover the amount. It is

true petitioner has produced various documents to

show that even the officials of the department has

recommended to consider the issue pointed out by

the petitioner sympathetically. However, in view of

the specific contractual terms entered into by and

between the parties, I am of the considered opinion

that, such considerations given by the officials of

the department cannot have any force against the

agreement executed by and between the parties,

since an undertaking is also made by the petitioner

WP(C).No.30472 of 2012 6

in the agreement that, petitioner is prepared to

pay the amount as per the contract. It was

thereupon that the parties proceeded with the

contract and the petitioner has remitted the 50% of

the amount and signed the agreement, undertaking to

comply with the obligations undertaken. Therefore

at a later point of time, petitioner cannot turn

around and say that, petitioner is not liable to

pay the amount or a waiver is required on account

of the late execution of the contract. This is

exactly the points raised by the learned Government

Pleader and I find force in the said contentions

advanced by the respondents.

6. In that view of the matter, I do not think

there is any arbitrariness, illegality or

unfairness on the part of the respondents in

initiating recovery action to recover the amounts

due from the petitioner. Fact remains, when this

writ petition was admitted to the files of this

Court, coercive actions are stayed by this Court.

In that view of the matter, I am of the considered

WP(C).No.30472 of 2012 7

opinion that, a sympathetic approach can be made

with respect to the payment of interest, if any,

comprehended by Government on account of the

recovery action.

Therefore, the writ petition is disposed of

directing the petitioner to pay the outstanding

principal amounts in three equated monthly

instalments starting from 23.07.2019 and on the

corresponding date of the succeeding months and

failing to pay any instalments, the amounts can be

recovered with interest. But I make it clear that

if the petitioner is making the payment as directed

above, no interest shall be charged and the

collection charges shall be confined to 1% of the

total amount deposited.

Sd/-

SHAJI P.CHALY

JUDGE

Hmh
WP(C).No.30472 of 2012 8

APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE AGREEMENT DATED

10.1.2011.

EXHIBIT P2 A TRUE COPY OF THE REQUEST MADE BY THE

PETITIONER UNDER THE RTI ACT DATED
15.11.2012.

EXHIBIT P3 A TRUE COPY OF THE REPLY DATED 1.12.2012

ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER.

EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION DATED

23.1.2012.

EXHIBIT P4 A A TRUE COPY OF THE REPRESENTATION DATED

31.1.2012.

EXHIBIT P4 B A TRUE COPY OF THE REPRESENTATION DATED

19.3.2012.

EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED

1.2.2012.

EXHIBIT P5 A A TRUE COPY OF THE LETTER ISSUED BY

CHIEF ENGINEER, 3RD RESPONDENT HEREIN TO
THE PRIVATE SECRETARY OF THE MINISTER OF
FISHERIES DEPARTMENT DATED 7.5.2012.

EXHIBIT P6 A TRUE COPY OF THE LETTER DATED

2.5.2012.

EXHIBIT P7 A TRUE COPY OF THE REPLY DATED

17.9.2012.

EXHIBIT P7 A A TRUE COPY OF THE REPRESENTATION DATED

1.2.2012 SUBMITTED BY THE PETITIONER.

EXHIBIT P8 A TRUE COPY OF THE ORDER ISSUED BY THE

1ST RESPONDENT TO THE PETITIONER
29.9.2012.

EXHIBIT P9 A TRUE COPY OF THE ORDER ISSUED BY THE

1ST RESPONDENT ASSISTANT EXECUTIVE
ENGINEER DATED 5.11.2012.
WP(C).No.30472 of 2012 9

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1 A A TRUE COPY OF THE RELEVANT PAGE OF TR

TITLE SHOWING THE REMITTANCE DATED
5.11.2011.