IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 WP(C).No. 14693 of 2007(Y) --------------------------------------- PETITIONERS: --------------------- 1. T.R.KURIAN, P.W.D. CONTRACTOR, THALIYATH HOUSE, SOUTH KOMBARA, IRINJALAKUDA-680 121, BY POWER OF ATTORNEY HOLDER RANJIT JOSE, AYMANAM, KOTTAYAM DISTRICT. 2. MRS. DAISY KURIAN, W/O.T.R. KURIAN, THALIYATH HOUSE, SOUTH KOMBARA, IRINJALAKUDA-680 121, BY POWER OF ATTORNEY HOLDER RANJIT JOSE, AYMANAM, KOTTAYAM DISTRICT. 3. MRS.SHERON KURIAN, D/O.T.R.KURIAN, THALIYATH HOUSE, SOUTH KOMBARA, IRINJALAKUDA-680 121. BY MR.T.P.KELU NAMBIAR, SENIOR ADVOCATE, ADVS.MR.T.S.RADHAKRISHNA PILLAI, MR.T.R.RAJEEV. RESPONDENTS: ----------------------- 1. THE PRINCIPAL SECRETARY, LAND REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTING THE STATE OF KERALA. 2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, THRISSUR. 4. THE KERALA KOLE LAND DEVELOPMENT CORPORATION, REPRESENTED BY CHAIRMAN, THRISSOOR. W.P.(C). NO.14693/2007-Y: 5. KOLE DEVELOPMENT AGENCY, THRISSOOR. *ADDL.R6 IMPLEADED: 6. THE DIRECTOR OF VIGILANCE, VIGILANCE DIRECTORATE, TRIVANDRUM. *ADDL.R6 IMPLEADED VIDE SEPERATE TYPED ORDER DTD. 18/09/2001 IN W.P.(C). NO. 14693/07. R1 TO R3 & ADDL.R6 BY GOVT. PLEADER MR. M.R. SABU, R4 BY ADV. MR.P.N.MOHANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14693/2007-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN O.P. NO. 14887/2000-V DT.02/04/2001 OF THIS HON. COURT. EXT.P.2: COPY OF THE JUDGMENT IN W.A. NO. 3167/2001(B) DT. 02/04/2003 OF THIS HON'BLE COURT. EXT.P.3: COPY OF THE JUDGMENT IN W.A. NO. 2633/2001(D) DT. 02/04/2003 OF THIS HON'BLE COURT. EXT.P.4: COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER DT. 09/04/03. EXT.P.5: COPY OF THE DEMAND NOTICE ISSUED BY THE DY. TAHSILDAR DT. 10/08/2006. EXT.P.6: COPY OF THE ATTACHMENT NOTICE NO.D5-31716/06 DT. 10/08/2006. EXT.P.7: COPY OF THE ATTACHMENT NOTICE RR.1800/06 DT. 22/08/2006. EXT.P.8: COPY OF THE LETTER DTD. 10/07/2004 SEND BY THE PETITIONER TO THE R.4. EXT.P.9: COPY OF THE PROCEEDINGS NO. LRB7-38751/2006 DT. 01/11/2006 OF THE R.2. EXT.P.10: COPY OF THE G.O.(MS).NO.129/07/RD DT. 20/04/2007 OF THE R.1. EXT.P.11: COPY OF THE RECEIPT RR3 -1800/06 DT.D 29/05/07 ISSUED BY THE TAHSILDAR (RR), THRISSUR. RESPONDENTS' EXHIBITS: EXT.R3.A: STATEMENT SHOWING DETAILS OF PROPERTIES MENTIONED IN SOLVENCY CERTIFICATES. EXT.R3.B: COPIES OF THE SECURITY BONDS EXECUTED BY THE P.2. EXT.R4.A: COPY OF THE MINUTES. EXT.R4.B: COPY OF THE G.O.(RT).NO.22/2003/AD DTD. 07/01/2003. EXT.R4.C: COPY OF THE AGREEMENT DTD. 09/04/2003 WITH R.5. EXT.R4.D: COPY OF THE G.O.NO.12726/IFA2/2003/AD. DTD. 07/04/2003. W.P.(C). NO.14693/2007-Y: EXT.R5.A: COPY OF THE GO.DT. 07/01/2003. EXT.R5.B: COPY OF THE AGREEMENT DT. 09/04/2003. EXT.R5.C: COPY OF THE G.O. DT. 08/04/2003. EXT.R5.D: COPY OF THE NOTICE DT. 28/06/2006. EXT.R5.E: COPY OF THE REGISTERED COVER. EXT.R5.F: COPY OF THE NOTICE WITH ENDORSEMENT OF VILLAGE OFFICER. //TRUE COPY// P.A. TO JUDGE. Prv. P.R.RAMACHANDRA MENON .J -------------------------------------- WP(C) No.14693/2007 ------------------------------ DATED THIS THE 29TH DAY OF JUNE 2009 JUDGEMENT The 1st Petitioner, a contractor, was awarded certain works by the respondents, in connection with which, the 2nd and 3rd petitioners who are the wife and daughter respectively stood as the guarantors. In the course of events, the works awarded to the 1st petitioner were terminated alleging some or other reason, which was sought to be intercepted by filing O.P.14887/2000 before this Court; whereupon this Court directed the respondents to consider the matter afresh. The respondents approached the Division Bench of this Court by filing two separate Writ Appeals against the judgment. The matter was reconsidered and a fresh contract was awarded to the 1st Petitioner. The case of the Petitioners is that even though substantial portion of the works were completed, the respondents issued a notice stating that the WP(C) No.14693/2007 2 1st Petitioner had actually effected the work only to the tune of 13,07,000/- while the contention of the 1st Petitioner is that he had completed the work for Rs. 1.28 crores as evident from Exhibit P8. 2. The prayer in the present Writ Petition is that the work completed has to be quantified properly, before fixing the liability and demand is raised on the Petitioners, simultaneously seeking to interfere with the coercive steps which are stated as being pursued. 3. As evident from Ext.P6, the original claim of the respondent was that a sum of Rs. 75 lakhs was to be satisfied by the petitioners, lest the property should be put to sale for realisation of the due amount. At the time of admitting the matter, this Court had passed an interim order directing the Petitioners to remit Rs. 5 lakhs, which in turn has been complied with. Subsequently, taking earnest efforts to see that the alleged liability is wiped out for ever, the Petitioners remitted Rs.75 lakhs as well, thus effecting a total sum of Rs. 80 lakhs. After remitting the amount as above, the Petitioners filed I.A No. 7739/08 seeking to lift the attachment, specifically making a WP(C) No.14693/2007 3 reference to the 3 blocks of properties as stated in para.6 of the affidavit in support thereof and also showing approximate value (which however was not disputed from the part of the respondents). It was in such circumstances, that an interim order was passed by this Court on 19-8-2008, whereby the attachment in respect of 3.0098 hectares of land mentioned in the I.A was ordered to be lifted forthwith. 4. On passing the above interim order, the respondents suddenly woke up and filed a Review Petition No.1019/08 before this Court contending that the properties were not having the value as shown by the Petitioners in the I.A and hence the order passed by this Court on 19-8-2008 was sought to be reviewed. Observing that there was absolutely no error apparent on the fact of the records, this Court declined to interfere in the Review Petition, which made the respondents to file Writ Appeal No.2244/08, which is still pending , though no interim stay has been granted therein. 5. During the pendency of the above proceedings, the respondents came up with at another contention that a further sum of Rs.46 lakhs was liable to be paid by the Petitioners, if the WP(C) No.14693/2007 4 prayer contained in I.A was to be considered positively. After considering the rival submissions, this Court passed an interim order on 19-12-2008, whereby the sale of the property was intercepted on condition that the Petitioners remitted the above sum of Rs. 46 lakhs in the manner specified therein. It was also specifically taken note of in the said order that the learned Govt.Pleader did not have any serious objections in granting the prayer, on condition that the petitioners remitted the amount of Rs. 46 lakhs. 6. Sri.T.P.Kelu Nambiar, the Senior Counsel appearing for the Petitioners submits that the Petitioners, with the intention to discharge the entire liability, remitted the above amount and in fact, something in excess as well. Eventhough the total amount demanded by the respondents was Rs.75 lakhs + 5 lakhs + 46 lakhs (1.26 crores), the Petitioner had in fact paid Rs. 1.33 crores. It is after satisfying the entire liability as above, that the Petitioners have approached this Court by filing I.A No.1630/09 for a direction to lift the attachment and release the entire properties pending disposal of the Writ Petition, submits the learned Senior Counsel. WP(C) No.14693/2007 5 7. The 3rd respondent has filed counter affidavit to the above I.A, where the payment effected as stated above has been admitted. The case of the respondents is that the attachment cannot be lifted, for the reason that the contract was terminated because of the lapse on the part of the 1st Petitioner and that by virtue of the terms and conditions stipulated in the security bond executed by the parties ( Ext.R3(b) ), the work was liable to be re-tendered at the risk and cost of the 1st Petitioner. 8. The learned Senior Counsel appearing for the Petitioners submits that the work has not been re-tendered even as on date and as such, the statement made by the respondents in their counter affidavit that the liability has been fixed at Rs.4.4 crores cannot be said as correct or sustainable. It is also relevant to note that the 3rd respondent has conceded in the counter affidavit that the final measurement was taken in the absence of the 1st Petitioner and quantified the same, preparing the estimate for the balance works, on the basis of '2008 PWD rates' for fixing the liability. As mentioned already, the specific case of the Petitioners is to have a re-measurement of the 'work done' in the presence of the Petitioners and to re-fix the liability, if any. The WP(C) No.14693/2007 6 admitted or rather undisputed facts and figures reveal that the re-tender of the work is yet to be effected, under such circumstances, fixation of the liability stated as effected is rather on astrological assumptions, than based on any concrete materials on record. More so, when the re-measurement and quantification of the work has been stated as effected behind the Petitioners. Though the respondents have got a case that the 1st Petitioner did not turn up for pursuing such exercise, a contrary case is put forth by the 1st Petitioner as well, deprecating the course and approach pursued by the respondents in this regard. 9. After hearing the rival submissions, this Court finds it fit and proper to have a finality to the matter by getting the actual work done by the 1st Petitioner quantified, on the basis of the measurements recorded, after giving an opportunity of being heard to the 1st Petitioner, before fixing the liability referring to the alleged lapse/failure. In the above circumstances, the 4th respondent is hereby directed to finalize the proceedings as above after giving notice of hearing to the 1st Petitioner as expeditiously as possible, at any rate within 2 months from the date of receipt of a copy of this judgment. It is also made it WP(C) No.14693/2007 7 clear that the 1st Petitioner is at liberty to approach the 4th respondent in this regard either by himself or through authorised agent, to substantiate the actual facts and figures. On finalizing the proceedings above, if it is found that any further amount is due from the 1st petitioner, the same shall be satisfied by the petitioners and on such event, the attachment over the properties shall be lifted forthwith. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON (JUDGE) PKK