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2025 Supreme(Online)(Ker) 47867
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ZIYAD RAHMAN A.A.TH, J
MARYMATHA INFRASTRUCTURE PVT. LTD – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C) NO. 8076 OF 2023
For the Appellants/Petitioners: SRI.N.N.SUGANAPALAN, SRI.S.SUJIN
For the Respondents: SRI.K.V.MANOJ KUMAR
The non-retrospective application of a Government Order dictates that agreements existing prior to the order should not be bound by it.
Headnote:This writ petition addresses the applicability of a Government Order related to additional work rates based on supplemental agreements. The petitioner contends that the Government Order does not apply, while the respondents argue it does. The court has determined the issue requires a governmental review despite existing agreements potentially altering terms. The petitioner is to make a representation to the Government for consideration. The court emphasizes non-retrospective application of the Government Order (see Ext.P10). The petitioner's rights under the original agreement should be acknowledged. The relief directed is for the Government to reconsider the applicability of the order within a specified timeframe.
| Table of Content |
|---|
| 1. petitioner challenges applicability of a government order on contract. (Para 1 , 2 , 3) |
| 2. respondents assert variations in agreement alter pre-existing rates. (Para 4 , 6 , 7 , 8) |
| 3. court notes non-retrospective nature of government order paramount to litigated issue. (Para 9 , 10 , 11) |
| 4. court directs representation to government for reconsideration based on findings. (Para 12) |
JUDGMENT
This writ petition is submitted by a works contractor, who was entrusted with the work of “Construction of Hospital Block Buildings in Government Medical College, Palakkad” and Ext.P2 is the agreement executed in this regard, between the petitioner and the respondents 2 and 3 on 30.01.2017. Exhibits P3, P3(A) and P3(B) are the supplemental agreements executed between the petitioner and the said respondents, on 7.1.2021, 12.8.2022 and 28.1.2023 respectively.
2. The grievance highlighted by the petitioner in this writ petition pertains to the fixation of the rate for the works, in respect of additional works carried out by the petitioner based on Ext.P3 series supplemental agreements. According to the petitioner, the rates for such additional works and the supplies made, were reckoned by the respondents as per the stipulations in Ext.P1 Government Order dated 4.5.2019, despite the fact that the original agreement in this case was entered into, on 30.4.2017, prior to Ext.P1. Therefore, according to the petitioner, the clauses in Ext.P1 were not relevant for fixing the rates for the additional supplies made to the petitioner. The Writ Petition is submitted in such circumstances seeking the following reliefs:
“i) To Issue a writ of mandamus or any other appropriate writ order or direction declaring that Ext. P1 Government Order is not applicable to Ext. P2 Agreement
II. Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents that the agreement rates of Ext.P2 are binding on the parties and to direct the respondents to issue necessary orders accordingly.
III. To Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to make payment to the petitioner in conformity with terms and conditions set forth in Ext.P2
IV. Grant Such further reliefs that this hon’ble court deems fit and proper to grant.”
3. While raising the said contention, the petitioner also relies on Ext.P9 judgment rendered by this Court, in the writ petition submitted by the very same petitioner in respect of another work, and Ext.P10 Government Order dated 24.01.2024 issued, following the directions issued by this Court in Ext.P9. In Ext.P10, it was clearly clarified by the Government that, Ext.P1 Government Order does not have any retrospective application and, therefore, the terms and conditions set out therein, would not govern the contracts which were entered into prior to the said order.
4. A detailed counter affidavit was submitted by the 2nd respondent, denying the averments made in the writ petition and opposing the reliefs. According to them, by virtue of the terms and conditions in the supplemental agreements, the petitioner had varied the original terms and conditions in Ext.P2 contract. It was pointed out that, as far as Ext.P3 series supplemental agreements are concerned, those were entered into after Ext.P1 order and, therefore, in the light of the variation made in the original Ext.P2 agreement, by virtue of the supplemental agreements, Ext.P1 Government Order is binding upon the petitioner. Therefore, the dismissal of the writ petition was sought.
5. I have heard Sri. N.N.Sugunapalan, the learned Senior Counsel for the petitioner and Sri.K.V. Manoj Kumar, the learned Special Government Pleader for the respondents.
6. The learned Senior Counsel vehemently contended that, under no circumstances, the respondents could have applied the rates as per the terms and conditions in Ext.P1, as it was clearly found in Ext.P1 that, the said Government Order does not have any retrospecti
