IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 OP.No. 38445 of 2001(B) --------------------------------- PETITIONER: ----------------- C.P. VARGHESE, S/O. CHACKO PAULOSE, AGED 52 YRS, CHETHYARICKAL HOUSE, PALLIKKARA, KUMARAPURAM, KUNNATHUNADU. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.K.SETHUNATH RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, PWD BUILDING AND LOCAL WORKS CALICUT. 3. THE EXECUTIVE ENGINEER, PWD BUILDING DIVISION, MALAPPURAM. 4. DEPUTY TAHSILDAR, (REVENUE RECOVERY), KUNNATHUNADU TALUK, PERUMBAVOOR. 5. VILLAGE OFFICER, KUNNATHUNADU VILLAGE OFFICE. BY GOVERNMENT PLEADER SMT. N.SUDHADEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO. 38445/2001 PETITIONER'S EXHIBITS, EXT.P1. COPY OF THE NOTICE DT. 16/7/91 NO. D3. 5410/91 SERVIED ON 24/07/2001. EXT.P2. COPY OF THE REPRESENTATION DT. 25/09/99 SUBMITTED BY THE PETITIONER. EXT.P3. COPY OF THE JUDGMENT DT. 21/3/01 IN OP NO. 25697/99. EXT.P4. COPY OF THE ARGUMENT NOTES DT. 31/10/01 SUBMITTED BY THE PETITIONER BEFORE THE R3. EXT.P5. COPY OF THE LETTER NO. A1. 3085/00 DT. 16/11/01 ISSUED BY THE R3. RESPONDENT'S EXHIBITS NIL. True copy tga T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.38445 of 2001-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of March, 2008. JUDGMENT The petitioner is aggrieved by the revenue recovery proceedings initiated against him for the alleged amount due, viz. Rs.56,391/- from him. The petitioner had undertaken the construction work of police staff quarters of Perinthalmanna Police Station in the year 1983-84 after executing agreement No.SR(K) 91/83-84. The work was completed in the year 1985- 86 and the amount as per the final bill was also disbursed to him. Later on, the security and the retention amounts have also been returned to him. Presently, the demand is raised towards cost of materials and also the ensuing penalty for unreturned materials. Learned counsel for the petitioner contends that as the contract was performed to the satisfaction of the respondents and as the payments have been received in full by him without any liability either towards cost of unreturned materials or towards penalty, the revenue recovery proceedings now initiated after a long time, cannot be justified. It is further contended that before fixing the liability as such, he was not given any notice and no independent body had assessed any loss, damages, etc. enabling the respondents to seek recovery through revenue OP 39445/2001 -2- recovery proceedings. 2. A counter affidavit has been filed on behalf of respondents 2 and 3. The break up of the figures is shown in page 2 of the counter affidavit. Towards cost of unreturned materials, Rs.25,412/- is the demand and towards penalty for unreturned materials the amount shown is Rs.34,188/-. The balance amount after adjustments is shown as Rs.56,391/-. It is described that the said amount represents the loss sustained to the Government as cost of unreturned departmental materials, coupled with penalty. 3. It is not discernible from the averments in the counter affidavit as to how the penalty was imposed. The copy of the agreement has not been produced and the relevant clauses, if any, have also not been re-stated in the counter affidavit. Normally, a person can be called upon for payment of penalty only if there is objectionable conduct on his part. Herein, the said aspect is not explained in the counter affidavit. It cannot be disputed that the work was completed and he had received the amount due as per the final bill apart from the security and retention amounts. Therefore, the petitioner had performed the obligations arising under the contract to the satisfaction of the respondents and what is now sought for is the amount towards cost of unreturned departmental materials. Even though the details of such OP 39445/2001 -3- unreturned materials have not been stated in the counter affidavit, the said amount which represents the cost is liable to be reimbursed by the petitioner. But as far as the penalty is concerned, I find no justification to sustain the same. Once the contract has been performed duly, no penalty can be imposed for any alleged dues towards cost of materials. That has nothing to do with the work already completed, for which the final bill has been passed without any further conditions. The respondents have not established a specific case as to how the component of penalty can be sustained. 4. Therefore, the original petition is allowed to the extent that the respondents are not entitled to claim any penalty that is due and claimed for unreturned materials. The petitioner may remit the balance amount less the amount of Rs.34,118/- which is shown as penalty, within a period of three months from the date of receipt of a copy of this judgment. If the amount is not remitted as above, the respondents will be free to proceed with the revenue recovery proceedings. (T.R. Ramachandran Nair, Judge.) kav/ OP 39445/2001 -4- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.38445 of 2001-B - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 28th March, 2008.