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SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
State of Kerala & Ors. – Appellants
Versus
M.K. Jose – Respondent
CIVIL APPEAL NO. 6086 OF 2015 (@ SLP(C) NO. 19380 OF 2014)
Decided On : 14-08-2015
(2002) 1 SCC 216; (2003) 7 SCC 410; (1969) 3 SCC 769 – Relied upon
(b) Constitution of India – Article 226 – Appellate Court appointing Commissioners to verify measurements – Roving enquiry – Not permissible – Disputed questions of fact are required to be gone into by the appropriate legal forum not writ appellate Court. (Para 12, 16, 19)
(c) Constitution of India – Article 226 – Disputed questions of fact – Can be gone into by writ court if arising out of misconstruction of clauses of contract or provisions or if in public interest – Roving enquiry, however, not permissible. (Para 20)
(2004) 3 SCC 553; (1970) 1 SCC 582; (2006) 10 SCC 236; (1989) 3 SCC 293; (1990) 3 SCC 752; (2004) 3 SCC 214 – Relied upon
Facts of the case:
The respondent was awarded the work, namely, “Stimulus package-improvements to Kannavam-Idumba-Trikadaripoyil Road Km. 0/000 to 9/100 in Kannur District”. The work was to be completed within a period of 12 months, i.e., as on 26.12.2011. The respondent could not complete the work in time and on a request being made, time was initially extended up to 30.06.2012 and thereafter further extension was granted upto 31.03.2013.
The contractor failed to complete the work even during the extended period and the work was stopped.
However as there was some deviation of work, the revised estimate was required to be sanctioned but the same was not done.
After a series of litigation the contract was terminated.
The order of termination was assailed in WP(C) No. 22541 of 2013. The learned Single Judge noted the facts and took note of prayer for directing the respondents to take steps for measurement of the work already completed by him and making corresponding entries in the measurement book. The said prayer was acceded to by the counsel for the State of Kerala and accordingly the learned Single Judge directed measurement of the work to be completed effecting necessary entries in the measurement book before finalization of the tender proceedings, if any, in respect of balance work. The learned Single Judge had also directed that the measurements should take place after notice to the contractor.
The aforesaid order was assailed in the writ appeal.
The Appellate Court appointed commissioners for taking measurements with the help of a competent engineer and on the basis of the report, quashed the termination order with cost.
Finding of the Court:
Writ Court and the writ appellate court should neither entertain a case involving disputed questions of fact nor indulge in roving enquiry of facts.
Result: Appeal allowed.
JUDGMENT
Dipak Misra, J.
The present appeal, by special leave, assails the correctness of the judgment dated 24.02.2014 passed by the High Court of Kerala at Ernakulam in W.A. No. 1912/2013 whereby the Appellate Bench has reversed the decision of the learned Single Judge rendered in W.P.(C) No. 22541 of 2013 whereunder he had declined to interfere with the order of the Secretary, Public Works Department, Road and Projects of the State terminating the contract awarded to the respondent and forfeiting the security deposit placed by the contractor for the work to the state and further stating that the work had been put an end to at the cost and risk of the contractor.
2. Exposition of facts with essential details is imperative to appreciate the controversy in proper perspective and also to consider the manner in which the Appellate Bench has exercised the writ jurisdiction under Article 226 of the Constitution in respect of a matter relating to termination of contract. The respondent was awarded the work, namely, “Stimulus package-improvements to Kannavam-Idumba-Trikadaripoyil Road Km. 0/000 to 9/100 in Kannur District” and accordingly an agreement was executed between the parties on 18.12.2010. The site for the work was handed over to the respondent on 27.12.2010 and the work was to be completed within a period of 12 months. Thus, the work, as requisite, under the terms of the contract was to be completed in all respects as on 26.12.2011. The respondent could not complete the work in time and on a request being made, time was initially extended up to 30.06.2012 and thereafter further extension was granted upto 31.03.2013.
3. As is perceptible from the order of termination of the contract, despite issue of several notices and instructions, the contractor failed to complete the work even during the extended period. The Executive Engineer of the Department issued a memorandum on 14.02.2013 stopping the work. As there was some deviation of work, the revised estimate was required to be done but the same was not sanctioned by the Government. At that juncture, the respondent preferred W.P.(C) No. 5672 of 2012 seeking appropriate direction to the Government to pass orders sanctioning the revised estimate. The High Court disposed of the writ petition directing the Principal Secretary to take a decision on the proposal of revised estimate. Thereafter, the respondent filed a contempt petition which was eventually dropped.
4. As the factual matrix would further unfurl, the respondent submitted a representation to the Government and thereafter filed W.P.(C) No. 23087 of 2012. The High Court directed the Principal Secretary, PWD to consider and pass orders on his representation. It is apt to note here that the respondent had filed series of writ petitions, namely, W.P.(C) No. 26075 of 2012 and W.P.(C) No. 5690 of 2013 and the High Court vide order dated 08.04.2013 in W.P.(C) No. 5690 of 2013, directed the Secretary, PWD to pass appropriate orders in accordance with law. Eventually, as has been stated earlier, the contract was terminated.
5. The said order of termination was assailed in WP(C) No. 22541 of 2013. The learned Single Judge noted the facts and took note of prayer no. (c) which was for issue of a writ of mandamus or any other appropriate writ, order or direction directing the respondents to take steps for measurement of the work already completed by him and making corresponding entries in the measurement book. The said prayer was acceded to by the counsel for the State of Kerala and accordingly the learned Single Judge directed measurement of the work to be completed effecting necessary entries in the measurement book before finalization of the tender proceedings, if any, in respect of balance work. The learned Single Judge had also directed that the measurements should take place after notice to the contractor.
6. The aforesaid order was assailed in the writ appeal. When the appeal was listed for admission, the Appellate Bench, on
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