Akshaya Builders No. Vi/723C vs State Of Kerala

Viju Abraham , J

The above writ petition was filed challenging Ext P7 order.

Petitioner is a work contractor presently executing the work “Construction and Extension of River View Road up to 15th mile in Ettumanoor - Poonjar S.H. Way” awarded by the 3rd respondent on the basis of Ext P1 work agreement executed on 27.03.2018. The estimate of subject work was prepared by the Assistant Engineer, PWD Roads Division Pala and after vetting the estimate in the offices of respondent Nos. 2 to 5 the 2nd respondent issued technical sanction for the work. In the technical sanction the length of pile up to pile cap is considered as a single unit and approval is issued accordingly and the work was tendered.

During the course of execution of the subject work, the respondents deviated from the tender conditions and decided to measure the pile length bifurcating the same into two units, i.e. i) up to ground level and ii) above ground level separately. The said decision was taken as per Ext P3 minutes of the meeting convened by the 2nd respondent on 07.12.2019. In the said meeting it was decided that the rate for cast-in situ pile in the agreement schedule is for casting piles below the ground level and applying the same rate for casting piles above the ground level is not proper and so the casting of pile above ground level should be treated as an extra item and payment shall be modified accordingly.

Aggrieved by Ext P3, petitioner submitted Ext P4 representation before the 3rd respondent mainly contenting that the decision to bifurcate pile measurements is contrary to the terms of the concluded contract and the MORTH specifications. Since no decision was taken to review the decision taken as per Ext P3, petitioner approached this Court filing WP(C) No. 733/2020 which was disposed of as per Ext P5 judgment. A perusal of Ext P5 would reveal that, the learned Government Pleader made a submission before the Court that the issue will be appropriately reconsidered by the Chief Engineer taking note of the tender conditions as well as MORTH specifications and the factual aspects in the matter. Thereupon the said writ petition was disposed of as per Ext P5 directing the 2nd respondent to consider the complaint raised by petitioner and consider the same in accordance with provisions of the contract entered into between the parties as well as Ext P11, which is the true copy of the relevant pages of the MORTH specification. Thereupon petitioner was called for a meeting and as per Ext P6 minutes, the request made by the petitioner was rejected with a further decision that separate rate need to be worked out for the part of the member above ground level in accordance with the MORTH specification. Pursuant to the same Ext P7 proceedings were issued by the 2nd respondent reiterating the very same stand taken as per Ext P6 minutes.

Petitioner submits that even a perusal of Exts P6 and P7 would reveal that only one item of Cast-in-situ piles is provided in the agreement and that the stand taken by the respondent is quite illegal and against the expressed terms of work agreement. The decision contained in Exts P6 and P7 are in fact contrary to the directions issued by this Court in Ext P5 judgment in as much as the 2nd respondent has heard only the Department Officers and decided to follow their earlier stands. The reliance placed on Ext P8 is absolutely without any basis in as much as in Ext P8 there are two items of piles – item Nos. 3 and 9, whereas in Ext P1 there is only one item of pile. The Cast-in-situ piles for bridges are constructed from bottom hard strata to pile cap level through the water table, and the water table in the river would vary depending on the climatic seasons and so fixing length of pile above the ground level and below the ground level is vague and the same is unjustifiable. The length of piling for bridges constructed across lake/sea where the depth of water table will be 30 to 40 meters are to be casted through the water table and differentiating the length of pile into pile below the ground level and above ground level is clearly ambiguous.

Petitioner relies on Ext P9 E-tender notification and the tender documents and agreements which provides only one item of pile. Ext P1 work relates to extension of river view road besides Meenachil river for a length of 1000 meters with 940 meters slab on piles and beams and 60 meter approach road on the ends, and there is only one item of pile mentioned in the schedule of work, i.e. item 1.02 “Bored Cast-in-situ M35 grade RCC pile using concrete mixer excluding reinforcement in complete-as per drawing and technical specifications and removal of excavated earth with all lifts and leads up to 1000 meter pile with diameter 1000 milli meters for a quantity of 1724.2500 meter at the rate of Rs. 15000/Meter”. The piles are to be casted in 147 pile points at 49 locations (comprising of 3 piles in one location). The decision of Department to bifurcate the pile measurement is clearly against the terms of Ext P1 which specifies only one item of Cast-in-situ piles.

It is the contention of the petitioner that MORTH specification are to be followed in the matter of pile measurements and payments of bills. A perusal of Ext P10 especially clause 3.2.2, 73.2 and 73.3 of the GCC and Part V technical specification mandates that the employer and the contractor should follow MORTH specification. The contract conditions further envisage a situation wherein a conflict or ambiguity arises between PWD manual, CPWD or any work methodology insisted or followed by the employer and MORTH specifications, in such contingencies it is specified in the contract that MORTH specification has to be followed. Petitioner also relies on Ext P11 which is the MORTH specification especially clause 1118 which mandates that for the purpose of payment the entire pile length has to be taken from the head to the butt or the tampered point as a single unit. So on the basis of Ext P11 it is the contention of the petitioner that Ext P7 decision of the respondent to take measurement of Cast-in-situ piles from the bottom strata to the pile cap level in two sets is contrary to the agreement conditions and Ext P11 MORTH specification.

A detailed statement as well as additional counter affidavit has been filed by the 4th and 5th respondent respectively. Ext P3 decision was taken based on the direction issued by Chief Engineer in the meeting held to review the progress of the work. Thereafter pursuant to the direction issued by this Court in Ext P5 judgment, the matter was reconsidered after affording an opportunity of being heard to the petitioner and considering the opinion of the Field Engineers including Superintending Engineer, the Chief Engineer ordered that allowing quoted rate of “bored cast-in-situ Pile” for the part of pile above ground level for which not boring is actually required is technically not reasonable. While making the estimate for technical sanction, the banks of Meenachil river along with the projects is being carried out was intact and there was only need for bored cast-in-situ pile towards the depth upto the hard strata. Hence the estimate was submitted for the full length of bored cast-in-situ pile, but during the heavy floods during the year 2018 and 2019, the banks of river got eroded and thus the natural ground level was lowered, after which the maximum flood level was worked out and it was noticed that there was a rise in the maximum flood level compared to the original design of maximum flood level. The remaining portion of the pile from the eroded natural ground level to the maximum flood level does not need any boring activity. Thus there was a necessity for an extra item, i.e. cast-in-situ pile without boring, so that the measurement can be taken under two different heads i.e., 1. Up to ground level and 2. Above ground level. It is further submitted that, in the original estimate only provision for bored cast-in-situ was there, but during execution, as the site condition changed, the requirement to construct two different conditions, i) Below ground level as bore cast-in-situ piles and ii) above ground level up to pile cap without boring was necessitated.

The learned Government Pleader relying on clause. 30 of the contract conditions regarding variations and additions in any work contented that the engineer shall have full power subject to the provisions here in after contain from time to time during the execution of the contract by notice in writing to instruct the contractor to make such variation without prejudice to the contract and the contractor shall carry out the variation and be bound by the same conditions as far as applicable as though the said variations occurred in the contract document.

An additional counter affidavit was also filed by the 5th respondent wherein it is stated that it is general practice that when there is a deviation in site condition and nature of work, the work is to be executed as an extra item and hence new rate is arrived for the same as per the existing norm.

A reply affidavit has been filed by the petitioner wherein it is reiterated that the hearing conducted pursuant to the direction issued in Ext P5 was only a mockery and that none of the contentions raised by the petitioner was considered. There was only one item pile in a schedule and hence petitioner worked out the rate in the following manner: For pile beneath ground level Rs. 25,620/- and above ground level Rs. 8,236/- and quoted the average of the sum as rate for piling. Had there be two items of pile in the schedule the petitioner will have separately quote for the items. And if at this stage, the pile measurement is done separately that will lead to unexplainable loss and hardship to the petitioner. The unilateral decision of the respondents to deviate from the terms of the concluded contract is illegal and against the provisions of law. It is also submitted by the petitioner that the contentions in the statement that the measurement in terms of the contract will come under the clause 30 of the contract condition is wrong. The measurement of pile under MORTH specification do not fall under “variations” and “additions” in any work. “Extra items” are well explained in the conditions of contract and the petitioner is bound to execute extra item of work in the event of written instructions from the employer. Here the measurement in terms of the contract condition cannot be bifurcated so as to create an extra item is not possible since the rate and mode is already provided in the schedule.

I have heard the rival contentions on both sides.

Admittedly, as per the schedule of the tender only one item of pile is provided and the petitioner has quoted his rate on the said item of work, which was accepted by the Department and the petitioner was awarded the contract. The unilateral decision to change from the same as per Ext P3 to revise a new rate for the pile above the ground level was challenged by the petitioner and this Court as per Ext P5 directed to consider the claim of the petitioner strictly in accordance with the provisions of the contract as well as the MORTH specification. An undertaking was also given by the learned Government Pleader that the issue will be reconsidered, taking note of the tender conditions as well as MORTH specification.

Petitioner has a specific case that while issuing Exts P6 and P7, none of the contentions raised by the petitioner was considered and the same is not reflected in Exts P6 and P7. Exts P6 and P7 decisions were taken only after hearing the views expressed by the Engineers of the Department. Though it was undertaken before this Court by the Department that the MORTH specification would also be taken into consideration while reconsidering the claim of the petitioner, such an exercise is not seen done. Petitioner relies on Ext P10 to content that when there is any discrepancy between the drawing and specification, the drawing shall be followed and in interpreting the specification, the CPWD/MORTH/IRC specification should be followed. It is further mandated that matters not contained in the specifications and in case of any ambiguities in written specifications of the contract, the work shall be executed as per relevant Bureau of Indian Standards code and Central Public Works Department specifications, MORTH specification and IRC specification in the above order of preference. It is further seen in Ext P10 that the specification in mode of measurement of building work shall be in accordance with Central Public Works Department specification 2009, Volume I and II and Kerala PWD manual and that for roads and bridges work shall be in accordance with MORTH/IRC specification. The petitioner has brought to my notice the MORTH specification regarding measurement for payment contained in clause 1118 of Ext P11, wherein it is specified that for cast-in-situ driven and bored concrete piles on specified cross-section, the measurement shall be the length in meters of the accepted piles that remains in the finish structure complete in place. In the technical sanction the length of pile up to pile cap is considered as a single unit and approval was issued and the work was tendered. Later a decision was taken to treat the casting of pile above ground level should be treated as an extra item and the payment shall be notified accordingly. Though in Ext P5 judgment, the learned Government Pleader assured that the matter would be reconsidered taking note of the tender conditions as well as MORTH specifications, and based on the said undertaking a direction was issued by this Court as per Ext P5. A perusal of Exts P6 and P7 would show that none of these parameters or the contentions in this regard taken by the petitioner was duly considered.

Considering all these aspects, I am of the opinion that the matter requires reconsideration at the hands of the 2nd respondent. Therefore Exts P6 and P7 are quashed with a consequential direction to the 2nd respondent to reconsider the matter strictly in accordance with the directions issued in Ext P5 and also taking into consideration the specifications in Exts P10 and P11. Petitioner will be free to submit his written notes of argument detailing all the contentions and producing documents in support of the claim and the 2nd respondent while taking a decision as directed above shall duly consider the contentions taken by the petitioner and also the documents submitted by the petitioner in support of his contentions. A decision in this regard shall be taken as expeditiously as possible at any rate within a time limit of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner.

With the above said direction, the writ petition is disposed of.