J U D G M E N T

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Petitioner, who is an A Class Contractor undertaking works for PWD, has approached this Court seeking to quash Exts.P8 and P11 and to direct respondents 1 and 2 to disburse the security deposit to the petitioner by executing Ext.P3 agreement. The petitioner has also sought for certain incidental reliefs.

2. The petitioner was awarded with the work of Construction of Ring Road connecting newly constructed Life Science and Mathematics Department by the University of Calicut. Ext.P3 agreement was executed on 27.02.2020. The estimate amount was ₹23,35,925.67. The petitioner states that though Ext.P2 agreement was executed and work had to be completed within six months, the respondents did not handover the work site to the petitioner. The petitioner submitted Ext.P5 representation dated 09.03.2020, Ext.P6 representation dated 19.03.2020 and Ext.P7 registered letter dated 13.07.2021 to the respondents. In spite of the representations and letters, work site was not handed over.

3. To the surprise of the petitioner, the respondents passed Ext.P8 order dated 22.07.2021 directing the petitioner to start work within three days failing which the security deposit was to be forfeited and the contract was to be cancelled at the risk and cost of the petitioner. The petitioner states that the said order was passed without considering Exts.P6 and P7 representations. To Ext.P8, the petitioner sent Ext.P9 representation dated 10.08.2021 pointing out that the site has not been handed over to the petitioner in spite of his request.

4. The respondents, however, passed Ext.P11 order dated 10.09.2021 cancelling Ext.P3 agreement at the risk and cost of the petitioner. An amount of ₹1,16,800/- by way of security deposit was forfeited. The petitioner states that Ext.P11 order is against Clause 22 of Ext.P2 and paragraphs 14.3, 14.4, 14.5 and 2102.1 of the Kerala Public Works Department Manual.

5. The learned counsel for the petitioner argued that Exts.P8 and P11 were passed without hearing the petitioner, in violation of the principles of natural justice. The respondents have not complied with Clause 22 of Ext.P2 and paragraphs 14.3, 14.4, 14.5 and 2102.1 of the PWD Manual.

6. The respondents failed to handover the site. The petitioner had submitted Exts.P5 and P6 representations requiring to handover the same. No action was taken thereon. Now, the contract has been terminated at the risk and cost of the petitioner. For no fault of the petitioner, he is being penalised, contended the counsel for the petitioner.

7. The 1st respondent-University resisted the writ petition. The 1st respondent stated that Ext.P5 and P6 are fraudulent documents which were never received by the University. The site was handed over to the petitioner within time in terms of the agreement. The site was available free of any hindrance or encumbrance, since it is only a road within the University. The petitioner did not turn up to execute the work.

8. The Standing Counsel for the respondents further argued that as per paragraph 2116.1 of the Kerala PWD Manual, the Agreement Authority has the power to cancel the contract and arrange the work otherwise, in the event of default by the contractor. The damages and penalties and can be recovered from the contractor.

9. I have heard the counsel for the petitioner and the Standing Counsel for the respondents.

10. The case put forward by the petitioner is that as per paragraph 14.3 of the PWD Manual, the contractor has to take over charge of the site by signing the acknowledgment form and commence the work within ten days from the date of execution of agreement. As per paragraph 2102.1, after executing the agreement, the contractor or the authorised agent shall take over the site from the Assistant Engineer within ten days and commence the work immediately. If the contractor does not turn up, the acknowledgment form for handing over of the site duly signed by the Assistant Engineer shall be sent to the contractor