IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 17^TH DAY OF JULY 2024 / 26TH ASHADHA, 1946 WP(C) NO. 37592 OF 2023 PETITIONER:

M/S. SAJEEV MATHEW & COMPANY REPRESENTED BY ITS MANAGING PARTNER SRI. SAJEEV MATHEW, CHERUMATTATHIL PLAZA, ARAKUZHA ROAD JUNCTION, MUVATTUPUZHA, PIN -

686661 BY ADVS. PHILIP J.VETTICKATTU NEENU BERNATH SAJU S.

DOMINIC RESPONDENTS:

1 THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA ERNAKULAM, PIN - 683101

2 THE ASSISTANT ENGINEER OFFICE OF THE ASSISTANT ENGINEER, PWD ROADS, THODUPUZHA, PIN - 685584

3 THE EXECUTIVE ENGINEER PWD ROADS, PAINAVU, IDUKKI DISTRICT, PIN - 685603 SRI. SAJU .S. DOMINIC FOR THE PETITIONER.

SRI. SUNILKUMAR KURIAKOSE, SR. GP.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 17^th day of July, 2024 The short question arising for consideration in this writ petition is whether a Contract will be governed by the terms of the agreement or a Government Order contrary to those terms.

2. The short facts are as under:

The petitioner, an ‘A’ Class Contractor, was awarded the work “B/W 2019-20-Improvements to Thodupuzha Town Roads” by the Public Works Department. The petitioner commenced the work on 27.05.2020, and completed it by 31.03.2021. Some time later, the petitioner was issued with a letter, requiring him to rectify the defects in the road markings with respect to that work. According to the petitioner, the Defect Liability Period for road markings is fixed as 12 months as per Exhibit P13 Government Order dated 31.08.2013. Therefore, the Defect Liability Period of 24 months specified in the agreement, is of no avail. The petitioner, therefore, contends that he is not bound to rectify the defects, 12 months having elapsed after completing the works.

3. Learned counsel for the petitioner drew attention to Exhibit P13 Government Order as well as Clause 5.2 of Exhibit P14 Bid Document to contend that the time stipulated in the Government Order will prevail over the terms of the agreement.

4. Learned Government Pleader, on the other hand, placed reliance on Clause 23 of Exhibit R1(b) agreement, wherein the Defect Liability Period is specified as 24 months.

5. True, in Exhibit P13, the Defect Liability Period with respect to road markings is specified as 12 months. On the other hand, in the agreement entered into between the parties, the Defect Liability Period is fixed as 24 months. Having entered into an agreement with open eyes, the petitioner cannot wriggle out of that commitment by relying on a Government Order. Clause 7.2 of the Bid Document will also not come to the petitioner’s rescue, since the stipulation therein is that the Government Order will apply even if something is not specifically stated in the agreement. Here, 24 months is specifically stated as the defect liability period. Therefore, the Government Order will not override the stipulation.

For the aforementioned reasons, the writ petition is dismissed.

Sd/-

V.G.ARUN JUDGE SSK/17/07 APPENDIX OF WP(C) 37592/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SELECTION NOTICE ISSUED BY THE 1 ST RESPONDENT BEARING NO. DIT-3526/2019 DATED

30.04.2020 Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE COMPETENT AUTHORITY DATED 19.05.2020 Exhibit P3 TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE 1 ST RESPONDENT DATED 06.08.2021 Exhibit P4 TRUE COPY OF THE LETTER BEARING NO. T28/2019-20 DATED 17.11.2022 ISSUED BY THE 2 ND RESPONDENT Exhibit P5 TRUE COPY OF THE REPLY BEARING NO. SMC//THODUPUZHA TOWN/2020/25 DATED 18.11.2022 SUBMITTED BY THE PETITIONER TO THE 2 ND RESPONDENT Exhibit P6 TRUE COPY OF THE LETTER BEARING NO. SMC/THODUPUZHA TOWN/2020/26 DATED 29.04.2023 ALONG WITH THE APPLICATION Exhibit P7 TRUE COPY OF THE LETTER BEARING NO. T28/2019-20 DATED 31.05.2023 ISSUED BY THE 2 N