IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 19764 of 2007(C) ------------------------------------------ PETITIONER: -------------------- K.J.GEORGE,S/O.JOSEPH,KACHAPILLY HOUSE, MEKKAD P.O.,ERNAKULAM DIST. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENTS: ------------------------- 1. STATE OF KERALA REP BY THE SECRETARY, AGRICULTURAL DEPARTMENT, SECRETARIAT,TRIVANDRUM. 2. THE ASST.DIRECTOR OF AGRICULTURE, KRISHI BHAVAN,NEDUMBASSERY. 3. THE DIRECTOR OF AGRICULTURE,TRIVANDRUM. 4. THE DEPUTY TAHSILDAR,REVENUE RECOVERY, ALUVA. 5. THE EXECUTIVE ENGINEER (AGRI), OFFICE OF THE EXECUTIVE ENGINEER,SOUTH ZONE, ALAPPUZHA DISTRICT. BY GOVERNMENT PLEADER SRI. K.V.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19764/2007 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(MS) 194/93/AD DTD. 27/09/1993. EXT.P2: COPY OF THE CERTIFICATE DTD.10/06/2005 ISSUED BY THE NEDUMBASSERY PANCHAYATH PRESIDENT. EXT.P3: COPY OF THE LETTER DTD. 16/12/2002. EXT.P4: COPY OF THE REPRESENTATION DTD. 3/01/2003. EXT.P5: COPY OF THE REPLY DTD. 19/03/2000. EXT.P6: COPY OF THE ORDER NO.G.O.(RT) NO.717/97/AGRI/TVM DTD. 30/04/1997. EXT.P7: COPY OF THE ORDER NO.NS 10/04 DTD. 16/08/2004. EXT.P8: COPY OF APPEAL DTD. 06/09/2004. EXT.P9: COPY OF THE JUDGMENT IN WP(C) 30532/04 DTD. 18/10/2004. EXT.P10: COPY OF THE NOTICE DTD. 16/05/2005 ISSUED BY THE 5TH RESPONDENT. EXT.P11: COPY OF THE ORDER PASSED BY THE GOVT. ON 04/05/2007. EXT.P12: COPY OF THE LETTER DTD. 12/06/2007 ISSUED BY THE 4TH RESPONDENT. EXT.P13: COPY OF THE RELEVANT PAGE OF G.O.MS.NO.22/94/AD DTD. 30/07/1994 ISSUED BY THE DIRECTOR OF AGRICULTURE. EXT.P14: COPY OF THE LETTER DTD. 11/09/2001. EXT.P15: COPY OF THE INVOICE DTD. 01/10/2001 SUBMITTED BEFORE THE AGRICULTURAL OFFICER, NEDUMBASSERY ALONG WITH THE ENDORSEMENT. EXT.P16: COPY OF THE COVERING LETTER DTD. 18/06/2003 AND THE DOCUMENT MENTIONED THEREIN. Kss ..2/- ..2.... WPC.NO.19764/2007 C RESPONDENT'S EXHIBITS: EXT.R(1)A: COPY OF THE VALUATION REPORT DTD. 29/06/2005 SUBMITTED BY THE EXECUTIVE ENGINEER (AGRI), ALAPPUZHA. EXT.R(1)B: COPY OF THE VALUATION REPORT OF THE CHIEF TECHNICAL EXAMINER DTD. 27/10/2006. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 19764 of 2007 -------------------------------------------------------- Dated: JULY 30, 2008 JUDGMENT Petitioner who was the Convener for the execution of a work connected with the Comprehensive Coconut Development Scheme implemented in the State of Kerala during 1993-94 through the Agricultural Department and Panchayat Keravikasana Samithies, is aggrieved by Ext.P11 order passed by the Government of Kerala and is seeking to get the said order quashed. 2. The facts of the case are that, by Ext.P1, the petitioner was elected as the Convener of Nedumpassery Keravikasana Samithy for the work of Mekkad - Champannoor Lift Irrigation Scheme, implemented under the aforesaid Scheme. The estimated cost of the scheme was Rs.22,44,000/-. Out of the estimated cost, 85% was to be contributed by the Government of Kerala and the balance 15% by the concerned beneficiaries. Ext.P13 is the WP(C) 19764/07 2 guidelines of the scheme and in terms of the said guidelines, the work is to be monitored by a committee and a monthly report is to be prepared by the committee and the amount is to be sanctioned on the basis of their report. 3. It is stated that under the convenership of the petitioner, the aforesaid work was executed and Rs.15.5 lakhs was paid in instalments to the petitioner for the work that has been done. Petitioner relies on Ext.P2, a letter issued by the President of the Panchayat to the Director of Agriculture certifying that the work has been completed, to contend that the work has been completed by him and the benefit thereof is being enjoyed by the beneficiaries. 4. According to the petitioner, long thereafter he received Ext.P3 by which the 2nd respondent demanded an amount of Rs.9,30,376/- from him. On receipt of Ext.P3, petitioner submitted Exts.P4 and P5 replies contending that valuation of the work was not taken by the Assistant Executive Engineer as required of him, that nothing was paid by him and that he was eligible for the benefit of WP(C) 19764/07 3 revision of rates effected by Ext.P6 Government Order. 5. As the replies filed by the petitioner did not yield any response and there was a threat of recovery, he filed O.P.14149/2000 before this Court. It is stated that the O.P. was disposed of directing the Assistant Executive Engineer to value the completed work and to consider the aforesaid representations made by him. It was in pursuance to the judgment referred to above, the Assistant Director of Agriculture passed Ext.P7 rejecting the claim of the petitioner for revision in rates. Against Ext.P7, petitioner filed Ext.P8 appeal before the Government. In the appeal he also complained about the measurements of the work completed by him which, according to him, was not taken by the Assistant Executive Engineer. 6. During the pendency of the appeal, petitioner filed WP(C) 30532/2004 before this Court. That writ petition was disposed of by Ext.P9 judgment directing the Government to consider Ext.P8 appeal filed by him. It is stated that the appeal was accordingly heard and the WP(C) 19764/07 4 Government being satisfied that the work executed was not properly measured, appointed a Special Committee to take measurement of the work. According to the petitioner, Ext.R1(a) is the report that was submitted by the Committee. Ext.R1(a) shows that a proper measurement could not be done as the whole area was flooded at the relevant time. 7. In view of the unsatisfactory nature of Ext.R1(a) report, the Government again directed the Chief Technical Examiner to inspect the work executed by the petitioner and submit yet another report. Ext.R1(b) is stated to be the report submitted by the Chief Technical Examiner and on receipt of Ext.R1(b) report, Government passed Ext.P11 order on Ext.P8 appeal filed by the petitioner. By Ext.P11, the Government decided to recover an amount of Rs.5,93,991/- from the petitioner, allegedly being the excess amount received by the petitioner. It is in this background the writ petition has been filed challenging Ext.P11 and seeking consequential reliefs. WP(C) 19764/07 5 8. The submission made by the learned counsel for the petitioner is mainly that in Ext.P11 there is no whisper about his claim for revision of rates effected by the Government as per Ext.P6, which was declined to him by Ext.P7. It is also contended by the learned counsel for the petitioner that there has not been a proper measurement of the quantity of work that was executed by him. Learned counsel for the petitioner relies on the PWD Manual, PWD Accounts Code and PWD Code to contend that periodical measurement is a mandatory requirement and that in the absence of which the demand could not have been made. 9. On the other hand, the learned Government Pleader has produced before me a document described as the valuation certificate issued by the Assistant Executive Engineer. According to the learned Government Pleader, the work has been valued by the departmental authorities as required in the departmental instructions. The contention of the learned counsel for the petitioner that the argument of the petitioner that during the course of the WP(C) 19764/07 6 execution of the work, valuation was not done is incorrect. It is also stated that while considering Ext.P8 appeal filed by the petitioner, the Government itself appointed a Special Committee and thereafter called for a further report from the Chief Technical Examiner. It is pointed out that Ext.R1 (b) is the report submitted by the Chief Technical Examiner pursuant to the order issued by the Government in this behalf. 10. The learned Government Pleaded points out that in Ext.R1(b) the Chief Technical Examiner has pointed out that all that remained to be quantified was only two items concerning the underwater earth work excavated and dry rubble masonry for retaining wall foundation and that on the measurement by the Chief Technical Examiner, the average percentage of work executed by the petitioner was 48.37%. In so far as the work of plastering 1:3:9 mm thick one coat top and bottom of slab, it has been found in the report that the financial implication of the above item is Rs.516/-. It is stated that accepting the report of the Chief WP(C) 19764/07 7 Technical Examiner and in the light of the reports which were already available before the Government, the Government have issued Ext.P11. The learned Government Pleader, therefore, would submit that the petitioner had not executed the work as claimed and that he has not made out a case for interference. 11. I have considered the submissions made by both sides. 12. In this writ petition, though the learned counsel for the petitioner raised several challenges on the quantification of the work that has been done by the technical experts, I do not think that this Court will be justified in venturing into such an enquiry. This is for the reason that such a factual adjudication of the dispute is possible only on appreciation of the evidence that is adduced by both sides in a proceedings before an appropriate Civil Court. 13. However, the challenge raised by the petitioner being against Ext.P11, that necessarily has to be gone into. WP(C) 19764/07 8 As already noticed, one of the contentions raised by the learned counsel for the petitioner is that in Ext.P11, his claim for revision of rates effected by the Government as per Ext.P6 and which was turned down by the Assistant Director as per Ext.P7, has not been considered. On going through Ext.P11, I am inclined to agree with the learned counsels for the petitioner that this aspect of the matter has not been considered by the Government while considering Ext.P8 appeal, in which the petitioner has raised this claim in paragraph 12 thereof. Therefore, admittedly, the claim of the petitioner for revision of rate has not been considered while passing the impugned order. 14. The other issue that arises for consideration is whether the Government is justified in accepting Ext.R1(b) report submitted by the Chief Technical Examiner. Although I am not inclined to enter into the correctness of the quantification that has been done in Ext.R1(b) report submitted by the Chief Technical Examiner, yet it was obligatory on the part of the Government to have given WP(C) 19764/07 9 reasons in Ext.P11 as to why the report was acceptable to it. The question is whether the Government have given any reason in Ext.P11 to justify acceptance of Ext.R1(b). A reading of Ext.P11 shows that in the last paragraph of the said order, the Government have stated that Rs.5,93,991/- is decided to be recovered from the petitioner based on the report of the Chief Technical Examiner. I must confess that Ext.P11 does not contain any reason as to why the Government have chosen to accept Ext.R1(b) report. In the absence of any reason, much less any convincing reason, given by the Government for accepting Ext.R1(b) report, I am not in a position to endorse acceptance of Ext.R1(b) and the decision in Ext.P11. 15. Therefore, for the reason that the Government have not dealt with the claim of the petitioner for revision of rates ordered by Ext.P6, and also for its failure to give reasons as to why it has chosen to accept Ext.R1(b) report, I am inclined to set aside Ext.P11 and direct its reconsideration. WP(C) 19764/07 10 16. Therefore, Ext.P11 will stand set aside and the Government shall reconsider Ext.P8 with notice to the petitioner and decide the matter accordingly. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE mt/-