IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 22774 of 2006(J) -------------------------- PETITIONER(S): --------------- GEORGE THEKKEKARA, THEKKEKARA HOUSE, VAPPALASSERY P.O., ERNAKULAM DISTRICT. BY ADV. MR. M.P.ASHOK KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVT., AGRICULTURAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER (AGRI), VYTTILA. 3. THE ASST.DIRECTOR OF AGRICULTURE, NEDUMBASSERY KRISHI BHAVAN, MAIKKAD P.O., ERNAKULAM DISTRICT. 4. THE DEPUTY TAHASILDAR, REVENUE RECOVERY, ALUVA. GOVERNMENT PLEADER MR. K.B. RAMANAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON 06/04/2010 DELIVERED THE FOLLOWING: WP(C).22774/06 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF THE CONTRACT ENTERED WITH AGRICULTURAL OFFICER ON 7.1.95 EXT.P2:- TRUE COPY OF THE LETTER OF THE AGRICULTURAL OFFICER DT.18.6.03 EXT.P3:- TRUE COPY OF THE VALUATION STATEMENT ISSUED BY THE ASST.EXECUTIVE ENGINEER, (AGRI.), ERNAKULAM. EXT.P4:- TRUE COPY OF OBJECTION FILED BEFORE THE ASST. EXECUTIVE ENGINEER, DO -- ON 16.7.2003 EXT.P5:- TRUE COPY OF THE LETTER DT.17.10.02. EXT.P6:- TRUE COPY OF THE RR NOTICE DT.9.1.04 EXT.P7:- TRUE COPY OF JUDGMENT IN WP(C) 5185/04 DT.12.2.04 EXT.P8:- TRUE COPY OF THE ORDER NO.NS20/04 DT.5.8.04 EXT.P9:- TRUE COPY OF APPEAL FILED BEFORE THE GOVT. EXT.P10:- TRUE COPY OF THE JUDGMENT IN WP(C).32013/04 EXT.P11:- TRUE COPY OF THE ORDER NO.334/06/AD DT.7.3.2006 RESPONDENT'S EXHIBITS:- NIL OKB //TRUE COPY// P.A. TO JUDGE ORDER ON I.A.1122/2008 IN W.P.C.22774/06 DISMISSED. SD/- C.K. ABDUL REHIM, JUDGE. 6.4.2010 okb /True copy/ P.A. to Judge C.K.ABDUL REHIM, J ------------------------------------ W.P.(C).No.22774 OF 2006 ------------------------------------ Dated this the 6th day of April, 2010 J U D G M E N T ---------------------- 1. The petitioner had entered into an agreement with the 2nd respondent for execution of the work of; “deepening, widening and side protection of the Valiyathodu in Kayattukuzhi Puncha Padasekharam” undertaken by the Agricultural Department of the State Government, under the 'Natural Calamities Scheme'. According to the petitioner, the work was allotted to him only as elected convener of the beneficiary committee. The approved estimate of the work was for Rs.4 lakhs, which according to the petitioner, is prepared as per the PWD schedule rates prevailing at that time. Ext.P1 is the contract agreement executed. Admittedly the work was not completed. According to the petitioner it became impossible to complete the work at the rates at which it was undertaken due to steep increase in the price of building materials and labour charges. It is stated that, inspite of request made by the petitioner to revise the rates in accordance with the revised schedule rates of PWD, which W.P.(C).22774/06 -2- was brought into force subsequently, it was not allowed. Eventhough a major portion of the work was completed as early as in the year 1998, the matter was left as such, and the 2nd respondent has not taken any action till the year 2002. Valuation of the completed work was taken only on 26.7.2002. In Ext.P2 & Ext.P3 issued by the 2nd respondent, the cost of the work completed was estimated as Rs.1,66,778/-. The petitioner submitted Ext.P4 objection against the valuation alleging irregularity and impropriety. During execution of the work the petitioner was given advance payments to the tune of Rs.3,50,000/-. According to the petitioner, the said payment was effected in two phases of Rs.2,00,000/- and Rs.1,50,000/- respectively. It is stated that release of the 2nd phase of payment was effected only after receipt of utilisation certificate and satisfaction obtained from the monetary committee, who was evaluating progress of the work. 2. Since the petitioner has not completed the work and since the advance amount received by him was in excess of the cost of the work completed, the 2nd respondent issued Ext.P5 notice demanding refund of the differential amount of W.P.(C).22774/06 -3- Rs.1,83,222/-. Since the petitioner failed to make payment revenue recovery steps was initiated based on requisition of the 2nd respondent. But the action was initiated for realisation of the total advance amount of Rs.3,50,000/- along with interest. Being aggrieved by such action the petitioner had approached this court earlier, in WP(C).No:5185/2004. Since Ext.P4 objection submitted against the valuation was pending undisposed, this court disposed of the writ petition through Ext.P7 Judgment directing the 2nd respondent to consider and pass orders on Ext.P4 (Ext.P5 in that writ petition) with notice and opportunities to the petitioner. Further proceedings of recovery was directed to be kept in abeyance till such time. 3. Ext.P8 is the proceedings issued by the 3rd respondent in compliance with the directions contained in Ext.P7 judgment. Since objection raised by the petitioner was against the valuation, which mainly pertains to technical matters, the 3rd respondent referred the matter for opinion of the 2nd respondent. The 2nd respondent thereupon called the petitioner for a personal hearing in order to clarify his doubts regarding measurements taken. But the petitioner has not W.P.(C).22774/06 -4- attended the hearing. The 2nd respondent reported that the valuation of Rs.1,66,778/- arrived at with respect to the work completed, is on the basis of actual measurements and that there is no error in estimating the valuation. On getting remarks from the 2nd respondent, the 3rd respondent afforded personal hearing to the petitioner. After consideration of the entire matter, the 3rd respondent had arrived at a conclusion that the petitioner had only completed works worth Rs.1,66,778/-, and that he had failed to complete the works as undertaken through the agreement. It is found that there is no reason to discard the valuation taken by the 2nd respondent and therefore there is no reason to reconsider the demand of Rs.3,50,000/-, which is the amount advanced to the petitioner. 4. Aggrieved by Ext.P8 the petitioner had preferred appeal before the Government, as evidenced from Ext.P9. When the coercive steps of recovery was pursued without considering such appeal, the petitioner again approached this court through WP(C).No:32013/2004. A learned Single Judge of this court had disposed of the writ petition modifying Ext.P8, and directing the petitioner to remit Rs.1,83,222/- only W.P.(C).22774/06 -5- along with 15% interest in 2 equal monthly installments. But in Writ Appeal No:772/2005 filed by the petitioner, Judgment of the Single Judge was set aside and the Government was directed to consider and pass orders on Ext.P9 appeal within three months. Ext.P11 is the Judgment in the Writ Appeal. Revenue recovery proceedings was directed to be kept in abeyance till the disposal of the appeal, on condition of the petitioner remitting an amount of Rs.50,000/-, within a period of six weeks from the date of the judgment. 5. Ext.P12 is the order passed by the Government, disposing the appeal. It is observed that the petitioner had failed to produce any invoice pertaining to the work completed by him. The Government found that, since the agreement was executed before revision of rates the request for allotting revised rates, is inadmissible. It is observed that since the work was not completed inspite of receipt of advance payment of Rs.3,50,000/-, intention of the petitioner was malafide and was only to misappropriate the said amount. Therefore the appeal petition was rejected and the amount was directed to be recovered from the petitioner. The present writ petition is W.P.(C).22774/06 -6- filed challenging Ext.P12 order of the Government. 6. Heard, Sri. M.P. Ashok Kumar, learned counsel appearing for the petitioner and the learned Government Pleader appearing on behalf of the respondents. Sri. Ashok Kumar argued that the work could not be completed due to the steep hike experienced in the price of building materials and labour charges. It is contended that the petitioner was only a nominee of the beneficiary committee and the work was undertaken at a very low rate than the schedule rate of PWD, which had undergone considerable changes immediately after execution of the agreement. It is further argued that eventhough the work was stopped as early as in 1998, the valuation was taken only in the year 2002, that too during a heavy rainy season. Therefore there is no proper valuation taken and the estimation of the amount with respect to the works completed is not true and correct. It is further contended that the advance payment was effected in two phases and the second payment of Rs.1,50,000/- was made only after being convinced that there was proper utilisation of the initial amount of Rs.2 lakhs. Therefore the estimation now W.P.(C).22774/06 -7- taken with respect to the completed portion of the work is highly erroneous. It is further argued that, at any rate, recovery of the total amount of advance payment along with huge rate of interest is not at all justified. It is also contended that the rate of interest with respect to the recovery is not specified in Ext.P1 agreement. Yet another contention raised is that the Government is not entitled to invoke provisions of Revenue Recovery Act for realising the amount, because such enablement is not specifically provided in the agreement, and because the amount sought to be recovered is not adjudicated and finalised. 7. There is no counter affidavit filed on behalf of the respondents. However, learned Government Pleader contended that the dispute regarding valuation has already been considered by the competent authority in accordance with the direction contained in Ext.P7 Judgment. It is pointed out that inspite of notice the petitioner has not turned up before the 2nd respondent to raise any dispute nor he had produced any convincing materials, to substantiate such disputes. It is further argued that since non completion of the W.P.(C).22774/06 -8- work is accepted, the petitioner is liable to make refund of the full amount of advance along with interest. It is also contended that since the matter was elaborately considered at various levels by the competent authorities, this court could not interfere with the findings, which are basically on the factual matrix of the issue. 8. Having considered facts and circumstances of the case and rival submissions, I am of the opinion that there is no scope for any interference with the findings arrived in Ext.P8 & P12 orders. It is an admitted fact that there was an agreement executed by the petitioner for execution of the work and to complete the same in a satisfactory manner. Admittedly there was failure on the part of the petitioner in completing the work. The claim for revised rates cannot be allowed as a matter of right, in view of the terms of the agreement. Further the petitioner has not succeeded in establishing through any cogent materials that there is any error occurred with respect to the valuation done by the 2nd respondent. It is pertinent to note that the petitioner has not co-operated with reconsideration of the matter, in view of the W.P.(C).22774/06 -9- direction issued by this court in Ext.P7 Judgment. Inspite of his assertions the petitioner has not produced any materials before this court to prove that there was a certificate of utilisation issued during pendency of the work regarding proper utilisation of the amount of advance payment. Therefore I find no merits in the contentions raised in this regard. 9. However, it is an admitted fact that the petitioner had completed works having valuation of Rs.1,66,778/-. It is also not disputed that the total amount paid to the petitioner is Rs.3,50,000/- only. Under such circumstances there is no justification for demand and recovery of the entire advance amount, from the petitioner. There is no reason forthcoming to substantiate any such action, based on any specific provisions of the contract or based on proceedings of any competent authority. Therefore I am of the opinion that the petitioner is liable to pay only the balance amount of Rs.1,83,222/-. Since there is no specific agreement with respect to the rate of interest payable, I am of the opinion that the above said amount is recoverable from the petitioner W.P.(C).22774/06 -10- along with a moderate rate of interest at 12% per annum. Since the demand at the first instance in this regard was raised through Ext.P5 notice dt:17.10.2002, the failure in payment can be attributed only from that date onwards. 10. Therefore while upholding Ext.P8 & P12, it is clarified that the petitioner is liable for payment of only an amount of Rs.1,83,222/- along with 12% interest per annum due thereon from 17.10.2002 till realisation. The petitioner is granted two months time from today for making payment of the said amount. Needless to say that on failure of payment of the amount as stipulated above the respondents will be at liberty to proceed with further coercive steps of recovery for realisation of the said amount. The writ petition is disposed of with the above directions. C.K.ABDUL REHIM, JUDGE. okb