IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 AS.No. 666 of 2001(B) OS.578/1994 of ADDL.SUB COURT,PARAVUR .................... APPELLANT/ PLAINTIFF: M.D. OUSEPH, S/O. MUNDAN MANI DEVASSY, VETTILAPPARA DESOM, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS 1 TO 3/ DEFENDANTS 1 TO 3: 4TH RESPONDENT/5TH DEFENDANT: --------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD. 2. RANGE OFFICER, SOCIAL FORESTRY RANGE, ERNAKULAM, JANATHA ROAD, PALARIVATTOM. 3. RANGE OFFICER, SOCIAL FORESTRY RANGE, PERUMBAVOOR, MUDICKAL P.O. 4. BABY SAJAN, S/O. SAJAN, FOREST RANGE OFFICER, KACHAPPILLY HOUSE, NEAR EDAPPALLY TOLL, EDAPPALLY KARA, EDAPPALLY VILLAGE, KANAYANNOOR TALUK. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18.10.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. ====================== A.S. No.666 of 2001 B ====================== Dated, this the 18th day of October, 2011. JUDGMENT The plaintiff in O.S. No. 578 of 1994 on the file of the Sub Court, N. Paravur is the appellant. 2. The suit was one for money. The plaintiff was appointed as the convenor to do certain works in the Pannippara Plantation in pursuance of a World Bank programme. The plaintiff did the work in accordance with the directions issued and submitted his bills. He did two programmes for which he was entitled to `18,942/- and `20,912/- respectively. In spite of demands made by him for payment of the amount, it was not done. He, therefore, issued a notice under Section 80 of the C.P.C following upon them to effect payment. The second defendant issued a reply in which it was stated that the details of the work done by him has been noted and the matter has been referred to the Assistant Forest Conservator, Ernakulam who has to effect the payment. It is alleged that the Assistant Conservator after verifying the bills sent to him, allowed only `307/- which the plaintiff refused to receive. The plaintiff would allege that he is A.S. No.666/2001 -:2:- entitled to the sum made mention of earlier with 12% interest thereon from the defendants. 3. Defendants 1 to 3 resisted the suit by contending that they are not liable to pay any amount to the plaintiff. According to them, unless and until the estimate of the work is approved, the work could not have been carried out and the work was done prior to the approval of the estimate by the officers concerned. The second defendant had submitted an estimate for `1,06,300/- which was sent to the Social Forest Conservator, Quilon on 13.07.1993. The Conservator had accorded sanction to the estimate for `55,400/-. He had not granted sanction for weeding. The Assistant Conservator of Forest had refused to accord sanction to the estimate for `14,267/- and it could approve only payment of `307/-. Pointing out that the government is not liable to pay the amounts to the plaintiff , the suit had been filed. 4. It appears that on the basis of the contentions raised by defendants 1 to 3, additional defendants 4 and 5 were impleaded who are the then Range Officers under whom work was done by the plaintiff. During the pendency of the suit, additional 4th defendant died and 5th defendant remained ex parte. A.S. No.666/2001 -:3:- 5. On the basis of the above pleadings, issues were raised by the trial court. The evidence consisted of the testimony of PW1 and Exts. A1 to A5 were marked on the side of the plaintiff. On the side of the contesting defendants, DW1 was examined and Exts. D1 to D6 were marked. 6. The trial court on an appreciation of the evidence found that the plaintiff had, in fact, done the work and the amounts claimed by him is just and fair. Further, the trial court took the view that since the work was done before the estimate has been approved, the defendants could not be made liable. The trial court was of the view that if at all any one is liable, that can only be the Range Officers under whom the plaintiff carried out the work. Holding so, the claim of `18,942/- which according to the lower court, was the price of the work done by the plaintiff under the orders of the 5th defendant, was allowed and decree was granted as against the 5th defendant. As regards the claim of `20,912/- was concerned, the trial court took the view that the work for the said amount was done under the order of the 4th defendant and since he is no more, no decree can be granted for that amount. Accordingly, that was declined. Aggrieved by the A.S. No.666/2001 -:4:- judgment and decree that the plaintiff has come up in appeal. 7. The questions that arise for consideration are: 1.whether the plaintiff is entitled to the amount sought for by him? 2.Whether the plaintiff is liable to wait for the approval of the estimate which is an inter departmental affair of which the plaintiff has no notice? 8. The learned counsel appearing for the appellant pointed out that the court below has erred both in facts and in law in declining the entire reliefs to the plaintiff. The lower court has also gone wrong in a finding that the liability to pay the amounts payable to the plaintiff is vested with the respective Range Officers. The question as to whether the estimate was approved or not was not within the knowledge of the plaintiff and that was an affair between the officers concerned of which the plaintiff had no knowledge. He was not put on notice that the work could be commenced and continued only after the estimate was approved by the officer concerned. The learned counsel pointed out that the plaintiff was asked to carry out the work by the officers of the State and he did so. It is interesting to note, according to the learned counsel, that the measurements and A.S. No.666/2001 -:5:- such other affairs that are necessary to ascertain the quantum of work done by the plaintiff were taken note of by the officer concerned to recommend for payment as claimed by the plaintiff. Under these circumstances, the learned counsel pointed out that the court below was not justified in declining the relief. 9. Per contra, the learned counsel for the respondent pointed out that Ext.B1 is very clear to the fact that no work shall be commenced unless the estimate is approved. In the case of any works done before the estimates were approved, the State is not liable. If the work was done at the instance of the Range Officers, they alone are liable. Accordingly, it is pointed out that no interference is called for in the judgment and decree passed by the court below. 10. After having heard the learned counsel on both sides and after having perused the records and evidence, I find it difficult to accept the contentions put forward by the respondents in this appeal. May be that, there are directions to the effect that the work shall not be commenced unless the estimate is approved; but that is a matter between the officers of A.S. No.666/2001 -:6:- the State. There is no dispute that the plaintiff was elected as the convenor for the said work and the work was handed over to them. None of the officer of the State including the Range Officers inform him that the work could be commenced only after the estimate was approved and subsequent orders were issued by them. On the other hand, they prompted him to commence the work and complete the same. Ext.A2 has the same significance in this regard. 11. That is the communication received by the lawyer for the plaintiff from the Range Officer, Ernakulam which makes mention of the fact that the plaintiff has done both the work as mentioned and the official requirements and procedures of verification of the work done have been completed. It also makes mention of the fact that the necessary recommendation with the bills submitted by the plaintiffs have been forwarded to the appropriate authority. There is no mention in Ext.A2 that the complaint made by the plaintiff is unsustainable. In fact, the communication would indicate that the plaintiff's claim is justifiable since the officers were satisfied on the inspection that the work as claimed by the plaintiff has been done by him. It may A.S. No.666/2001 -:7:- not be inappropriate to consider Ext.A4 at this juncture. That is the communication issued by the Forest Range Officers to the plaintiff. It is pointed out in the said communication that in the communication submitted by him the amounts for weeding out has not been approved and it is after deleting that item that the bill has been sanctioned. The Range Officer informs the plaintiff that recommendations have been made to the appropriate authority to sanction the amount expended for weeding out also. 12. Certain facts, therefore, stand clearly established. It was at the instance of the Range Officers. that the plaintiff had done the work. He had submitted his bills for the work done by him. The Range Officers concerned and the officers responsible for verifying the claim made by the plaintiff, had done so and were satisfied about the claim made by the plaintiff. They, therefore, had approved their bills submitted by the plaintiff and forwarded the same for sanction to the appropriate authorities. 13. May be that, the Range Officers had prompted the plaintiff or directed the plaintiff to commence the work even before the estimate was approved. May be also that, they may have anticipated approval. Whatever that be, it was not the A.S. No.666/2001 -:8:- responsibility of the plaintiff to ascertain whether the estimate was approved and there is nothing to show that he had no knowledge about the same. He was elected as the convenor by the Range Officer and he was asked to do the work. If as a matter of fact work could not have commenced till the estimate was approved, that was the look out of the Range Officers and the plaintiff ought to have been alerted about the same. It cannot be disputed that Range Officers were acting on behalf of the State and the State had benefited from the work done by the plaintiff. If defendants 4 and 5 have exceeded this authority that is the worry of the State and the plaintiff cannot deprive of the amount due to him. 14. There cannot be any dispute regarding the fact that the plaintiff had done the work and submitted the bills which were verified and approved by the officers concerned and the payment was also recommended. Under such circumstances, it is difficult to hold that defendants 1 to 3 are not liable for the amounts claimed by the plaintiff. This Court is unable to accept the findings of the court below. Being the principal, defendants 1 to 3 are equally liable to the plaintiff for the amount claimed by A.S. No.666/2001 -:9:- him. 15. The learned counsel for the appellant pointed out that the decree granted by the trial court for a sum of ` 18,942/- with interest has been released. The plaintiff will be satisfied with the decree for the amount of `20,912/- with interest which was declined by the court below. In the result, this appeal is partly allowed. The decree rejecting the claim of `20,912/- by the lower court is set aside and the plaintiff is granted a decree for `20,912/- with 6% interest from the date of suit till realisation. The plaintiff will be entitled to cost in both the courts proportionately. sd/- P. BHAVADASAN, JUDGE. rv /True Copy/ P.A to Judge. A.S. No.666/2001 -:10:- P.BHAVADASAN, J. ----------------------------------------------------------- A.S.No.666 of 2001 ------------------------------------------------------------- Dated this the 18th day of October, 2011. JUDGMENT