IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE ACTING CHIEF JUSTICE MR.S.V.N.BHATTI &

THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 30^TH DAY OF MAY 2023 / 9TH JYAISHTA, 1945 WA NO. 1020 OF 2023 AGAINST THE JUDGMENT IN WP(C) 1323/2023 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:

KABEER M.

AGED 40 YEARS S/O. M. ABDULLA, CONTRACTOR, MUNDANGALAM HOUSE, THEKKIL FERRY P.O., KASARAGOD DISTRICT, PIN -

671541 BY ADVS.

P.MOHANDAS (ERNAKULAM)

K.SUDHINKUMAR SABU PULLAN GOKUL D. SUDHAKARAN R.BHASKARA KRISHNAN K.P.SATHEESAN (SR.)

RESPONDENTS/RESPONDENTS:

1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

2 CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (ROADS), PUBLIC OFFICE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033

4 EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, ROADS DIVISION, KOZHIKODE DISTRICT, PIN – 673020

5 ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, ROADS SUB DIVISION, KOYILANDI, KOZHIKODE DISTRICT, PIN - 673305

6 ASSISTANT ENGINEER PUBLIC WORKS DEPARTMENT, ROADS SECTION, PERAMBRA, KOZHIKODE DISTRICT, PIN - 673525 GOVERNMENT PLEADER T.K. VINPINDAS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON

30.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

M.R.Anitha,J This writ appeal has been filed against the judgment in W.P.(C) No.1323 of 2023. The same was filed by the appellant challenging the order dated 05/01/2023 terminating the agreement dated 17/05/2022 in between the appellant and third respondent and also seeking for an issue of writ of mandamus to the 2^nd respondent, the Chief Engineer, Public Works Department to issue approval of the revised estimate so as to enable the appellant to commence the execution of work comprised in the agreement No.SE(K) 18/2022-23 dated 17/05/2022.

2. The facts in brief is as follows:

The work was originally awarded to Mr.Faiz.M.D of Kasaragod. But that was terminated at the risk and cost of the said person, at the time when the application seeking revision of schedule of work consequent to the enhancement of the width of the road from 3.5 meters to 5.5 meters was pending consideration before the 2^nd respondent, Chief Engineer, PWD (Roads), Thiruvananthapuram. After inviting re-tender, selection notice was issued to the appellant. Consequent to that, appellant executed agreement dated 17/05/2022 with third respondent on providing performance guarantee of Rs.10,72,500/- and an additional performance guarantee of Rs.37,42,802/- in accordance with Ext.P1 selection notice. It is alleged by the appellant that when the work was in progress, the third and the fourth respondents proposed to enhance the width of the road from 3.5 meters to 5.5 meters. Hence, the revision of estimate according to the appellant has become essential and necessary as contemplated under Clause 2111 of PWD Manual Revised Edition, 2012. It is alleged that the tender notification was issued when the proposal for revision of estimate was pending consideration of the 2^nd respondent. It is the case of the appellant that based on Ext.P4 detailed estimate of the work, the initial levels of the work were recorded by the appellant as per Ext.P5 in the presence of the 6^th respondent, the Assistant engineer and other officials. It is alleged that Ext.P5 was submitted to the 6^th respondent along with Ext.P6 letter dated 14/07/2022. Hence the appellant could commence the work only if Ext.P5 initial levels were reported to the Chief Technical Examiner (CTE). But the respondent withheld initial levels without reporting to the CTE and even now Ext.P5 initial levels were not reported to CTE. 6^th respondent as per Ext.P7 letter dated 18/07/2022 directed the appellant to record the initial levels of the road at the width of 8 meters deviating from the provisions of work contemplated in Ext.P4 detailed estimate. Thereafter, the 5^th respondent issued Ext.P8 letter dated 20/07/2022 reiterating the directions in Ext.P7