IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 7456 of 2007(K) ------------------------------------ PETITIONER(S): ------------------------ K.K.CHANDRA BABU, S/O KUMARAN, S.N.BHAVAN,KUDAVECHOOR, VAIKOM. BY ADVS. MR.K.REGHU KOTTAPPURAM SMT.URSULA FRANCIS RESPONDENT(S): ------------------------- 1. DR.BINU, VETERINARY SURGEON, VETERINARY DISPENSERY, KUMARAKOM, VAIKOM, DIST.KOTTAYAM (FORMER VETERINARY SURGEON, VETERINARY HOSPITAL, VECHOOR). 2. LALI SATHYAN, (FORMER PANCHAYATH PRESIDENT, VECHOOR GRAMA PANCHAYATH), KUDAVECHOOR, VAIKOM, DIST. KOTTAYAM. 3. RAJESH ALOOR, S/O LATE RAJAPPAN, (FORMER VICE PRESIDENT, VECHOOR GRAMA PANCHAYATH), ALOOR HOUSE, KUDAVECHOOR, VAIKOM, DIST. KOTTAYAM. 4. CHANDRASEKHARAN, ABHILASH BHAVAN, KUDAVECHOOR P.O., VAIKOM, DIST.KOTTAYAM. 5. M.SIVAMANI, KALATHIL VEEDU, KUDAVECHOOR P.O., VAIKOM, DIST.KOTTAYAM. W.P.(C) NO.7456/2007 6. N.R.PRATHAPAN, PRASANTH BHAVAN, KUDAVECHOOR P.O., VAIKOM, DIST. KOTTAYAM. 7. M.SHAJI, ELANGIKKATHARA, KUDAVECHOOR, VAIKOM, DIST. KOTTAYAM. 8. N.SUBBIAN, CHAKKUTHARA, KUDAVECHOOR, VAIKOM, DIST. KOTTAYAM. 9. A.G.VASUDEVAN, ARACKAL, KUDAVECHOOR P.O., VAIKOM, DIST.KOTTAYAM. 10. AJITH KUMAR, UNNIPOOVANTHARA, KUDAVECHOOR P.O.,VAIKOM, DIST.KOTTAYAM. 11. GIREESAN C.R., CHOTHUTHARA, KUDAVECHOOR P.O., VAIKOM, DIST.KOTTAYAM. 12. K.V.NANDANAN, CHERIKKATHARA, KUDAVECHOOR P.O., VAIKOM, DIST. KOTTAYAM. 13. GIRIJA, PUTHENCHIRA, KUDAVECHOOR P.O., VAIKOM, DIST.KOTTAYAM. 14. SUBHADRA, MANGALATHU, KUDAVECHOOR P.O., VAIKOM, DIST. KOTTAYAM. 15. THANCHAN, KOCHUTHARA, KUDAVECHOOR P.O., VAIKOM, DIST. KOTTAYAM. 16. KARTHIKEYAN, KATTATHARAYIL, KUDAVECHOOR, VAIKOM. 17. THE DIRECTOR, VETERINARY DEPARTMENT, STATE OF KERALA, THIRUVANANTHAPURAM. 18. THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, KOTTAYAM. W.P.(C) NO.7456/2007 19. VECHOOR GRAMA PANCHAYATH REP.BY THE SECRETARY, VECHOOR, VAIKOM, DIST. KOTTAYAM. 20. THE TAHSILDAR, VAIKOM, DIS., KOTTAYAM BY ADVS.MR.M.P.MADHAVANKUTTY FOR R1 MR.K.N.CHANDRABABU FOR R2 & 19 MR.K.G.BALASUBRAMANIAN FOR R4 & R6 BY GOVT. PLEADER MR.BIJOY CHANDRAN FOR R17, 18 & 20 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.7456/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SKETCH OF THE BUILDINGS . P2:- COPY OF THE PROCEEDINGS NO.B3-22677/2000 PLG. DT. 16.12.2000. P3:- COPY OF THE PROJECT REPORT. P4:- COPY OF THE AUTHORIZATION DT. 27.3.02 ISSUED BY PANCHAYATH. P5:- COPY OF THE AGREEMENT DT. 28.3.02. P6:- COPY OF THE NOTICE NO.G3-285/0-6 DT. 9.2.07 FOR SALE OF IMMOVABLE PROPERTY. P7:- COPY OF THE NOTICE NO.G3-295/06 DT. 9.2.07 FOR SALE OF MOVABLE PROPERTY. P8:- COPY OF THE LETTER NO.LF-K-P5-687/05 DT. 30.3.06. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE AGREEMENT DT. 30.3.02 EXECUTED BETWEEN PETITIONER AND RESPONDENT. R1(b):- COPY OF THE SUPPLEMENTARY AGREEMENT DT. 30.3.02 EXECUTED BETWEEN PETITIONER AND RESPONDENT. R1(c):- COPY OF THE ESTIMATE SHOWING THE DETAILS. R1(d):- COPY OF THE REGISTERED LETTER SENT BY RESPONDENT TO THE PETITIONER REQUESTING HIM TO COMPLETE THE WORK BEFORE 25.3.04. R1(e):- COPY OF THE DAILY STAMP ACCOUNT. R1(f):- COPY OF THE RESOLUTION DT. 23.3.02 PASSED BY VECHOOR GRAMA PANCHAYATH. R1(g):- COPY OF THE RESOLUTION DT. 7.11.05 PASSED BY VECHOOR GRAMA PANCHAYATH. R1(h):- COPY OF THE REQUEST MADE BY CONCERNED VETERINARY SURGEON OF VECHOOR VETERINARY DISPENSARY TO THE DISTRICT COLLECTOR, KOTTAYAM DT. 23.11.05. TRUE COPY P.A. TO JUDGE TSS P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 7456 of 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 9th day of June, 2009 JUDGMENT The petitioner is the convener of the beneficiary Committee, constituted for the construction of a veterinary hospital, having an area of 1500 sq. ft. in the 19th respondent Panchayath. Case of the petitioner is that, though a total sum of Rs.8,00,000/- was sanctioned as the cost of the project, only a sum of Rs.3.8 lakhs was released to the petitioner, whereby the flooring works as well as the wood works including fixation of the windows and doors could not be completed. The petitioner submits that, out of the Rs.3.8 lakhs received by him by way of advance, Rs. 3.6 lakhs have been utilized for the construction, despite which, the departmental authorities have resorted to coercive steps by way of Revenue Recovery proceedings as per Ext.P6 and Ext.P7 stating that, a total sum of Rs. 1,16,826/- is due to them, allegedly for not having actually spent for the construction. 2. The learned counsel for the petitioner submits that, the impugned proceedings have been pursued against the petitioner merely based on Ext.P8 audit objection. It is also pointed out that, the work was undertaken to be completed on the basis of the agreement executed between the concerned Committee (to which petitioner as well respondents 4 to 16 were members) with the Panchayath, but the WP (C) No. 7456 of 2007 : 2 : coercive steps are being pursued only against the petitioner. The learned counsel for the petitioner also places reliance on paragraph 2 of the counter affidavit filed by the 18th respondent which says that, the amount stated as due has necessarily to be recovered from the first respondent, who is none other than the Implementing Officer. 3. The learned Government Pleader appearing on behalf of the 17th and 18th respondents, with specific reference to the averments in the counter affidavit filed by the 18th respondent submits that, the amount sought to be recovered is on the basis of audit objection observing that as per the valuation in the 'M book' (at page 44), it is clearly stated that the value of the work done is Rs.2,79,474/- where as the petitioner/convenor had received a total sum of Rs. 3,80,000/-, thus resulting in excess payment to the tune of Rs. 1,00,526/-. Since it is stated as resulted because of the lapses on the part of the implementing officer/first respondent, it is reported as recoverable from the first respondent as well. 4. The learned counsel appearing on behalf of the 19th respondent submits that, there is absolutely no dispute with regard to the entries made in the 'M book', particularly since the measurement was done in the presence of the petitioner. This being the position, the learned counsel submits that, petitioner is estopped from challenging the entries therein and as to the amount sought to be recovered from WP (C) No. 7456 of 2007 : 3 : the petitioner. Reliance is also placed on the agreements stated as executed between the petitioner and first respondent/implementing officer; which in turn have been produced as Ext. R1(a) and R1(b) along with counter affidavit filed by the first respondent. 5. The undisputed facts in the instant case reveal that, it was pursuant to the audit objection, that the coercive steps against the petitioner demanding a sum of 1,60,826/- have been pursued. The learned counsel for the petitioner submits that, the petitioner was never given an opportunity to substantiate the facts and figures with reference to the entries already made in the 'M book' and also with regard to the receipt of different amounts at different points of time and as to the effective utilization of Rs. 3.6 lakhs in connection with the work involved. Manner of fixation of the liability upon the the petitioner before proceeding with the revenue recovery steps, is not discernible from the any of the records produced before this Court, but for the audit objection, vide Ext.P8. It cannot be a matter of dispute any further, that the audit objection, though can form a basis to proceed against the person, it can never be a substitute for actual fixation of liability. That apart, before fixing the liability, the principles of natural justice, also demand that an opportunity be given to the person concerned, so as to substantiate his case, which requirement is obviously seen not satisfied in this case. This Court finds it fit and proper, that the matter be considered WP (C) No. 7456 of 2007 : 4 : by the 18th respondent before proceeding with the coercive steps under the provisions of the Kerala Revenue Recovery Act. 6. In the above circumstances, the 18th respondent is hereby directed to consider the matter as to the fixation of liability upon the petitioner, with reference to the entries already made in the 'M - book' and also other relevant records; of course after giving an opportunity of hearing to the petitioner, as well as to the first respondent and the 19th respondent Panchayath, before quantifying the extent of the alleged liability. This shall be done as expeditiously as possible, at any rate, within a period of 3 months from the date of receipt of a copy of this judgment. It is also made clear that till such orders are passed, the coercive steps already initiated by way of Ext.P6 and P7 shall be kept in abeyance. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd