IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22^ND DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 WP(C) NO. 35966 OF 2023 PETITIONER:

TOMCO ENGINEERING (P) LTD REPRESENTED BY ITS MANAGING DIRECTOR PAUL P. THOMAS PALANATTIL, KUNNACKAL.P.O., MUVATTUPUZHA, ERNAKULAM, PIN - 682316 BY ADVS.

P.SHANES METHAR N.KRISHNA PRASAD RESPONDENTS:

1 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM P.O., THIRUVANTHAPURAM, PIN - 695033

2 THE CHIEF ENGINEER (SOTHERN REGION)

OFFICE OF THE CHIEF ENGINEER, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM, PIN - 695033

3 THE SUPERINTENDING ENGINEER (P H CIRCLE THIRUVANANTHAPURAM) OFFICE OF THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM, PIN - 695033 SRI.P.M.JOHNY - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The petitioner impugns Ext.P13 proceedings of the respondent -

Kerala Water Authority (‘KWA’ for short), under which, they have been asked to renew the Bank Guarantee, with respect to the work which they had contracted with them earlier.

2. Sri.P.Shanes Methar – learned counsel for the petitioner, submitted that Ext.P1 work order was awarded after seven months of finalization of tender in his client’s favour and that the time for completion was twelve months, but that since the site was handed over nearly 363 days after the agreement, a Supplementary Agreement was forced to be executed, extending the time for completion upto 31.03.2022. He submitted that, in spite of this, the site was not handed over; and therefore, that the contract had become frustrated. He then added that, as per the orders of this Court, a meeting was convened by the 2^nd respondent – Chief Engineer and a decision to foreclose the work was taken, leading to Ext.P10 order being issued, and that the Treasury Deposit submitted by his client was released to them, without any demur. He submitted that, therefore, Ext.P13 proceedings now issued by the ‘KWA’ is unnecessary because, it directs his client to renew the Bank Guarantee submitted towards Performance Guarantee and that this is illegal and unlawful because, the work has been foreclosed and the defect liability/guarantee period having expired long back. He concluded saying that, in fact, in addition to the final bill, a sum of Rs.1,56,67,764/- is due to his client and as part of the “retention, maintenance, trial run and commissioning amounts”; and thus prayed that Ext.P13 be set aside.

3. The learned Standing Counsel for the ‘KWA’ – Sri.P.M.Johny, on the other hand, submitted that the afore assertions of the petitioner are not true and that they are obligated to act as per Ext.P13. He added that they had entered into the contract voluntarily and being aware of its terms; and therefore that their refusal to act as per Ext.P13 is illegal and unlawful.

4. Though I have recorded the afore submissions of the rival parties, it is evident that a decision on the claim of the petitioner, or on the validity of Ext.P13, cannot be arrived at by this Court at the first instance, while it acts under Article 226 of the Constitution of India. This is because, it is now well settled that, in matters which requires assessment of facts and evaluation of documents, the jurisdiction of this Court under the writ jurisdiction is severely inhibited. This is a matter that the competent Authority must consider, before the petitioner can invoke judicial review.

5. Since there are disputations between the parties as to the terms of the contract, its foreclosure, the amounts allegedly with the respondents and such other, I am certain that 3^rd respondent – Superintending Engineer of the ‘KWA’, or such other competent Authority, must hear the petitioner and take a final decision, before Ext.P13 can be implemented.

In the afore circumstances, I allow this writ petition and set aside Ext.P13; however, leaving full li