IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WP(C).No. 21129 of 2007(M) -------------------------- PETITIONERS: --------------- 1. P.K. JOY, POYYAKARAN HOUSE, CHUNGAL, MATTATHUR P.O.,THRISSUR 2. K. SURESH, P.W.D. CONTRACTOR, KOYIKKAL MADOM, PARAPURAM P.O., ALUVA. BY ADV. SMT.SANTHA VARGHESE SRI.K.L.VARGHESE, SENIOR ADVOCATE RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, N.H. DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PROJECT DIRECTOR AND GENERAL MANAGER, N.H. AUTHORITY OF INDIA, THUSHARA BHAVAN, NARIKODE, PALAKKAD. 3. THE SUPERINTENDING ENGINEER, N.H. CENTRAL CIRCLE, KOCHI, VYTTILA. 4. THE EXECUTIVE ENGINEER, N.H. (B) DIVISION, KODUNGALLUR. 5. THE ASSISTANT EXECUTIVE ENGINEER, N.H.SUB DIVISION, PERUMPADANNA, NORTH PARAVUR - 683 513. 6. THE ASSISTANT EXECUTIVE ENGINEER, N.H. SUB DIVISION, ALUVA. ADV. SRI.THOMAS ANTONY STANDING COUNSEL GOVERNMENT PLEADER SHRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21129 of 2007(M) APPENDIX PETITIONERS' EXHIBITS:- EXHIBIT P1 : Selection Notice dt.12/1/2006 issued by the 5th respondent to the 1st petitioner in respect of the work of Road berm strengthening by providing DR pitching in between Km.255/290 to 256/000 EXHIBIT P2 : Selection Notice dt.12/1/2006 issued by the 5th respondent to the 1st petitioner in respect of the work of Road berm strengthening by providing DR pitching in between Km.256/0 to 256/6000 EXHIBIT P3 : Selection Notice dt.30/12/2005 issued by the 4th respondent in respect of the work of patch repairs and providing stripped BT surface in between Km.304/000 and 308/00 and 316/520 to 316/700. EXHIBIT P4 : Selection Notice dt.22/8/2005 issued by the 3rd respondent in respect of the work of Urgent pot hole filling and patch repairs between km.313/520 to 316/700. EXHIBIT P5 : Selection Notice dt.22/8/2005 issued by the 3rd respondent in respect of the work of Urgent pot hole filling and patch repairs between km.305/000 to 308/000. EXHIBIT P6 : Seniority list issued by the 4th respondent relating to Pending Bills under NHAI Deposit works 2005-2006. Addl. EXHIBIT P7 : Notice dtd.19/2/2009 issued by the Federal Bank Ltd. RESPONDENTS' EXHIBITS: EXHIBIT R2(a) : Letter dtd.6/6/05 issued by the Executive Engineer, NH Division, Kodungalloor to the Project Director, NHAI, Palakkad. EXHIBIT R2(b) : Letter dtd.22/6/05 issued by the Project Director, NHAI, Palakkad to the NHAI headquarters. WP(C).No. 21129 of 2007(M) EXHIBIT R2(c) : Letter dtd.26/9/05 issued by the NHAI headquarters to the Project Director PIU Palakkad. EXHIBIT R2(d) : Letter dtd.25/10/05 issued by the Project Director, PIU Palakkad to the Executive Engineer, NH Division Kodungalloor together with the copy of the enclosed Demand Draft. EXHIBIT R2(e) : Utilization certificate dtd. 2/6/06 issued by the Executive Engineer NH Division Kodungalloor to the Project Director PIU Palakkad. EXHIBIT R2(f) : Letter dtd.14/8/06 issued by the PD PIU Palakkad to the Executive Engineer NH Division Kodungalloor together with the copy of the enclosed Demand Draft. EXHIBIT R2(g) : Utilization certificate dtd.4/11/06 issued by the Executive Engineer NH Division Kodungalloor to the Project Director PIU Palakkad. Annexure-1 : Statement showing the works executed in NH 47 under OR 2005-06 for NHAI and amount received & due from NHAI. True copy P.A. to Judge T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 21129 of 2007-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2010. JUDGMENT The petitioners are two contractors who have been awarded various works in relation to the National Highway 47. The first petitioner was awarded two works by the Assistant Executive Engineer, NH Sub Division, Perumpadanna, North Parur and the second petitioner was awarded three works mentioned in para 2 of the writ petition. The main prayer in this writ petition is to direct the respondents to pay the bill payments due in respect of the subject works done by the petitioners. 2. The National Highway authorities have filed a counter affidavit. The stand taken therein is that the stretch of NH 47 involved in this case is maintained and repaired by the NH Division, Kodungallur of the Public Works Department. Every year the NH Division Kodungallur submits the estimate for the OR works under its control. The Executive Engineer, NH Division, Kodungallur by letter dated 6.6.2005 requested as per the norms for OR works for 2005-2006 to provide an amount of Rs.63 lakhs. Ext.R2 (a) is the copy of the said letter. Ext.R2(c) is the copy of the communication from the NHAI whereby sanction is accorded only for an wpc21129 /2009 2 amount of Rs.49 lakhs. It is therefore mentioned that the balance amount has been released by the NHAI for the OR works for the year 2005-2006 as per the sanction and Exts.R2(f) and R2(g) have been relied upon. 3. Learned Govt. Pleader along with a memo dated 5.3.2010, has produced Annexure I showing the works executed in NH 47 under OR 2005-2006 and the amount received and due from NHAI/ The amounts sanctioned will be shown as Rs.49 lakhs and the amount due is shown as Rs.92.33 lakhs. 4. The petitioner has filed I.A. No.1905/2010 seeking for a direction to the second respondent to make available the necessary fund for payment to the petitioners, to which a counter statement has been filed by the second respondent reiterating the contentions in the counter affidavit. The stand taken is that the NHAI has sanctioned only an amount of Rs.49 lakhs and any further claim cannot be supported. 5. An identical issue was considered by this Court in W.P.(C) No.23605/2009 which was brought to m y notice by the learned Standing Counsel appearing for the NH authorities. the work in question is identical. Therein also, the contention that only an amount of Rs.49 lakhs has been sanctioned by the NH authorities, has been recorded in para 6 of the judgment. This Court therefore held that as the work has been awarded by wpc21129 /2009 3 the first respondent and the same has been satisfactorily completed by the contractor, it is for the first respondent to make payment to the contractor. The plea that the payments will be made as and when amounts are received from the NHAI, also was adverted and it was held that the said plea has no force for the reason that NHAI in its statement has clearly stated that their liability is only Rs.49 lakhs and the said amount has already been paid. 6. Herein also, the NHAI has clearly stated that their liability is only to the tune of Rs.49 lakhs which has already been disbursed by them. Therefore, there will be a direction to respondents 1 and 4 to take appropriate action to disburse the amount remaining unpaid to the petitioners, within a period of three months from the date of receipt of a copy of this judgment. This will not prevent the said respondents from pursuing any other claim with the National Highway authorities. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/