IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 OP.No. 8822 of 2002(A) ---------------------- PETITIONER(S): --------------- P.K.PUSHPANGATHAN, PUSHPAVILASOM, THAZHATHU VADAKKU P.O., PATTAZHI VADAKKEKARA, KOLLAM DISTRICT. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.B.S.SWATHY KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY THE SECRETARY, RURAL & DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE BLOCK DEVELOPMENT OFFICER, PATHANAPURAM. 3. PATTAZHI VADAKKEKARA GRAMA PANCHAYAT, CHELIKKUZHI P.O., NEDUMON (VIA),KOLLAM DISTRICT. 4. DEPUTY TAHSILDAR (R.R), TALUK OFFICE, PATHANAPURAM AT PUNALUR. ADV. SRI.REJI MATHEW KAVALAYIL FOR R3 G.P. SRI.MATHEW VADAKKEL FOR R1,2 & 4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.15722/2002 IN O.P. NO.8822/2002 DISMISSED: 16.7.2009 SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF LETTER NO.A4-1077/37/89 DT.15.6.92 OF R2 TO EXECUTIVE OFFICER, PATTAZHI NORTH PANCHAYAT. P2: .DO. NO.A4-1077/36/99 .DO. P3: .DO. NO.A4-1077/1/90 .DO. P4: TRUE COPY OF NOTICE DT.12.2.96 OF SECRETARY OF R3 TO THE PETITIONER. P5: TRUE COPY OF REPLY TO EXT.P4 SENT BY PETITIONER DT.29.2.96. P6: TRUE COPY OF RR DEMAND NOTICE DT.1.3.2001 SENT BY SECRETARY OF R3 TO THE PETITIONER. P7: .DO. DT.11.7.2001 .DO. P8: TRUE COPY OF REPLY DT.7.8.2001 OF PETITIONER TO EXT.P7. P9: TRUE COPY OF NOTICES U/S.7&34 OF R.R. ACT SENT TO THE PETITIONER BY R4. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... O.P. No.8822 of 2002 .................................................................... Dated this the 16th day of July, 2009. JUDGMENT Heard counsel appearing for the petitioner and Government Pleader appearing for respondents. The petitioner functioned in the dual capacity as President of the Panchayat and Convenor of the Panchayat Development Programmes funded by the Government of India under the Jawahar Rozgar Yogna scheme. Various development works which were in the nature of construction of nursery school, library etc. were undertaken by a beneficiary committee of which petitioner was the Convenor. The funds granted by the Central Government and routed through the State Government was kept in deposit in the joint account of the petitioner as President of the Panchayat and the Executive Officer. It is seen from the records produced that the entire amounts allotted was withdrawn and utilised by the Committee for the work before valuation of the same. When valuation was done and recoveries and payments adjusted, there is an excess withdrawal the total of which under three items was Rs.1,67,994/-. Petitioner's case is that the Beneficiary Committee of which he was Chairman, was not informed about the evaluation of the work by the Engineer concerned and there is 2 underestimation of value which led to the demand. According to him, the entire amount was spent and he has not taken any benefit out of it. The petitioner has also contended that the demand is beyond time. Government Pleader on the other hand contended that valuation was done by the Engineer strictly in accordance with the norms and petitioner has never doubted the genuineness of it, even though valuation by PWD was published then and there. 2. I do not find any substance in the challenge against recovery on the ground of limitation because it is clear from the documents produced that in 1998 itself excess amount withdrawn was demanded. Further, the amounts were provided by Government of India through State Government and for Government dues, limitation is there upto 12 years. Therefore, the plea of limitation against the demand is rejected. 3. I find some force in the contention of the petitioner that valuation done by the Engineer and the actual expenditure may not tally exactly. Further, unlike in many other cases, in this case atleast the entire work is completed by the beneficiary committee. Certainly the petitioner was in a dominant position because he was the President and with the assistance of Executive Officer of the Panchayat who was only a subordinate to him, he could withdraw the entire amount lying in deposit for the project work. In 3 any case at this distance of time there is no scope for ordering valuation of the work done 15 to 18 years back. In the circumstances, I feel petitioner can be given quantum relief for the possible undervaluation of the work. Consequently I reduce the liability to Rs.1 lakh on condition that petitioner will pay the same in four equal monthly instalments, first of which will be paid on or before 25th August and the balance on or before 25th of three succeeding months. However, if petitioner commits default in payment of any of the instalments, the instalment facility and reduction granted will stand cancelled and respondents will proceed for recovery of the entire amount with interest. C.N.RAMACHANDRAN NAIR Judge pms