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. 31729 of 2009(I) -------------------------- PETITIONER(S): --------------- SALI P.MATHAI, PULIMANACKAL HOUSE, MANAKKAD.P.O, THODUPUZHA. BY ADV. SRI.S.ANANTHAKRISHNAN RESPONDENT(S): --------------- 1. SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, OFFICE OF THE SUPERINTENDING ENGINEER, P.H.CIRCLE, MUVATTUPUZHA. 2. EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, OFFICE OF THE EXECUTIVE ENGINEER, PROJECT DIVISION, PIRAVOM-686 664. 3. THE ASST.EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, VAIKOM. 4. SUB-DIVISONAL ENGINEER (CHEMPU), BHARATH SANCHAR NIGAM LTD., OFFICE OF THE SUB-DIVISONAL ENGINEER, VAIKOM. 5. JUNIOR ENGINEER (CHEMPU), BHARATH SANCHAR NIGAM LTD., OFFICE OF THE SUB-DIVISONAL ENGINEER, VAIKOM. ADV. SRI.P.M.M.NAJEEB KHAN, SC, BSNL FOR R4&5 SRI.M.DINESH FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 31729 of 2009-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2010. JUDGMENT The petitioner had undertaken the work of supplying and laying gravity mains of 200 mm PVC(CL-3) pipe from toll junction to OH tank site at Kattikunnu which was awarded to the petitioner by the first respondent as per Ext.P1. Ext.P2 is the true copy of the final bill. 2. The grievance raised in this writ petition is that the BSNL has instructed the officers of the Water Authority to deduct an amount of Rs.1,85,000/- from the final bill as cost of damages. 3. The BSNL’s claim is that severe damage has been sustained to the underground cable from Toll junction which was caused due to the execution of the work by the petitioner. 4. It is the case of the petitioner that the digging of trenches was being done manually engaging experienced workmen. The digging work was started on 15.5.2009 and lasted till 25.5.2009. The trenches were dug after obtaining requisite permission from the PWD by the first respondent through the line marked by the officials of Water Authority and BSNL. It is further mentioned that the 5th respondent has informed that only few BSNL wpc31729 /2009 2 cables have been laid through the line where the trenches were directed to be dug and those cables were laid in a depth of more than 2 meters after giving adequate protection by placing bricks on the top of the cables so as to prevent any damages. 5. Mainly it is contended by the petitioner that no claim for damage can be maintained against the petitioner, that too unilaterally and without any proper adjudication also. Therefore, the petitioner seeks for a direction to respondents 1 and 3 to pay the bill amount without deducting the amount of Rs.1,85,000/- claimed by the fourth respondent. 6. Respondents 4 and 5 have filed a counter affidavit opposing the prayers of the petitioner. It is pointed out that the cost of repairing the damaged cables as estimated to Rs.1,85,000/- has to be paid by the petitioner as he is the sole responsible person for the damage caused to BSNL cables. It is accordingly, the officers of the Water Authority were requested to deduct the amount from the bill. It is further stated that the estimation of damage is done as per the instructions contained in BSNL Headquarters Order produced as Ext.R4(a). It is submitted that even though the 4th respondent was ready to conduct a joint inspection, the petitioner had never turned up. 7. The petitioner has filed a reply affidavit and respondents 4 and 5 wpc31729 /2009 3 have filed an additional counter affidavit. The list of damage sustained has been detailed in the counter affidavit. 8. On behalf of the first respondent, a counter affidavit has been filed. 9. Learned counsel for the petitioner submitted that any unilateral determination of damages cannot be supported in law. There cannot be an adjudication in the matter solely by the BSNL. It is submitted that they cannot demand reduction of the damage from the petitioner’s final bill. The petitioner was never put to notice on the question of the damages and the details of damage were not at all communicated. It is further submitted that unless the liability is determined by a known proceeding by a Court of law, the petitioner has no liability to pay any damages. Any unilateral decision taken by the BSNL cannot bind the petitioner. 10. As regards the source of power of the BSNL in the matter, the y are relying upon the documents produced as Ext.R4(b) along with the additional counter affidavit which is the relevant page of the P & T Manual Vol. X. What is contained in P & T Manual para 499 is that “when departmental property is damaged by considers, compensation, if due under the provisions of the Indian Telegraph Act, 1885, or otherwise, should be recovered from the party concerned through court of law.” As rightly wpc31729 /2009 4 pointed out by the learned counsel for the petitioner, if at all any claim for damages can be claimed, the same can be enforced only through a court of law, meaning, an adjudication by a civil court. The BSNL has not resorted to any such procedure before seeking to impose the liability through the Water Authority. 11. BSNL cannot be an adjudicator of their own cause. They have not resorted to any adjudication through an independent forum like the civil court. They have not obtained any decree through a court of law even under the method provided under para 499 of the P & T Manuel. Therefore, the attempt made by the BSNL to deduct the amount of Rs.1,85,000/- through the Water Authority as damages, cannot be accepted. 12. Herein, the stand taken by the Water Authority is also that in the light of the requisition by the BSNL only, an amount of Rs.1,85,000/- has been recovered from the final bill. But it has not been reimbursed to the BSNL in the light of the pendency of the writ petition. It is also stated that with regard to the accuracy of the statement by the BSNL, the Water Authority has no role in it. 13. It is also stated in para 8 of the counter affidavit filed by the Water Authority that the petitioner has confirmed that certain damage has been caused to the BSNL underground cables during excavation work for wpc31729 /2009 5 Kerala Water Authority. They have also mentioned that the damage has been rectified by the petitioner by engaging labourers doing such works for BSNL and the Water Authority had no part in arranging the rectification work or in paying the rectification charge to the workers. 14. Therefore, the scenario as above points out to the fact that BSNL has sought to adjust the claim of Rs.1,85,000/- against the petitioner. Evidently, such a unilateral determination of the damage cannot be supported in the absence of adjudication by any competent forum or through civil court. 15. Learned Standing Counsel for the BSNL submitted that even going by the averments in page 4 of the writ petition, the petitioner was ready for a joint inspection and therefore a joint inspection may be directed to be done to find out the damages. It is true that in page 4 of the writ petition the petitioner has stated that there was a suggestion for a joint inspection to which he was ready. This is reiterated by him in the reply affidavit also in para 5 wherein it is stated that the petitioner was always ready and willing for a joint inspection, but the JTO said that there is no damage and it is not necessary. 16. Now that the trenches have been closed, it is not clear whether any joint inspection can be made at this stage. Exts.P3 to P5 cannot be wpc31729 /2009 6 supported for the reasons already stated. They are accordingly quashed. The writ petition is allowed. The Water Authority is directed to release the amount of Rs.1,85,000/- which is stated to have been withheld from the final bill. But this will be without prejudice to the right of respondents 4 and 5 to establish their claim by any known process of law. Since the petitioner had agreed for a join inspection, if a joint inspection is possible at this stage, the same can also be done and the petitioner will co- operate with the same. No costs. (T.R. Ramachandran Nair, Judge.) kav/