IMPORTANT POINT
The State of Kerala lacks authority to blacklist a contractor when the contract is with a separate legal entity, and no specific provision in the agreement mandates the applicability of the PWD Manual.

JUDGMENT :

A.J. Desai, C.J.

1. The challenge in this appeal filed under Section 5 of the Kerala High Court Act, 1958 is against the judgment dated 23.08.2023 delivered by a learned Single Judge of this Court dismissing W.P. (C) No. 17363/2023 filed by the present appellant, by upholding Ext. P49 order dated 27.06.2023 passed by the Superintending Engineer, NH (Central) Circle, Vytila, Kochi, 3rd respondent, blacklisting the appellant and barring it from quoting for other works for a period of five years and simultaneously cancelling the appellant’s ‘A’ Class contractor’s licence, on account of poor workmanship, and further disqualifying the appellant from participating in any tender in its own name or by using a different name or benami and also withholding the security deposit of Rs.2,00,000/- until further orders, is purported exercise of the power under clause 2116.2 of PWD Manual.

2. The short facts arising from the records are as under:

2.1. The appellant/petitioner is a company incorporated under the Companies Act, 1956, and has been offering building solutions for a broad range of construction and engineering projects since 1992. It is the case of the petitioner that the company has completed over a hundred projects throughout India, out of which, 45 projects are in Kerala, of which 23 are construction of bridges.

2.2. The Roads and Bridges Development Corporation of Kerala Limited (hereinafter referred to as RBDCKL) invited tenders for the construction of a flyover on National Highway-66 at Palarivattom, Ernakulam. After due process, the petitioner was awarded the said work being the lowest tenderer. Accordingly, the petitioner executed an agreement dated 4.3.2014 (Exhibit-P3) with the RBDCKL. As per the said agreement, the site had to be handed over to the petitioner company on 1.6.2014, and the work was required to be completed within 24 months from the date of the agreement.

2.3. It is the case of the petitioner that the structural work, except for the wearing coat, was completed by June 2016 and that, as the inauguration of the flyover was scheduled to be held on 12.10.2016, the company was forced to complete the work of wearing coats in the monsoon period itself. As per the statement of the petitioner, the work was thus completed on 20.09.2016.

2.4. According to the petitioner, there was an error in the approved drawings and due to the formation of potholes, there occurred stagnation of water and dust collection on the expansion joints. To remedy the defects, the issue was reported to the structural consultant viz. M/s. Nagesh Consultancy, for expert advice.

2.5. It is the further case of the petitioner that the consultant, along with the representatives of RBDCKL and another company viz. KITCO Ltd. which offers consultancy services in architectural, engineering, technical management and financial sectors, inspected the site and forwarded their drawings for rectification of the joints. Thereafter, on 16.11.2016, a review meeting was held by RBDCKL, and as per Exhibit-P5 minutes, it was decided to take corrective steps to rectify the defects in the expansion joints between two strip seal expansion joints. As per the decision of the aforesaid meeting, the balance drain works were started on 18.11.2016.

2.6. The petitioner submits that, based on the views of the consultant, Exhibits P6 and P7 requests were made for rehabilitation/rectification of joints, which were never heeded to, and the traffic continued to ply through the flyover. The petitioner also availed services from one M/s. Sanfield India Pvt. Ltd. for testing certain materials.

2.7. It is the case of the petitioner that, as per the request made, one Dr. Aravindan, a retired professor of IIT Madras and head of M/s. Sree Giri Consultants, along with a team inspected the flyover on 07.11.2016 and 29.10.2017, and thereafter, prepared a detailed structural design check and submitted Exhibit P11 report before the RBDCKL. It is submitted that as per clause 20.2 of the agr