IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 WP(C).No. 16802 of 2006(A) --------------------------------------- PETITIONER(S): ----------------------- T.R.KARTHIKEYAN, AGED 57 YEARS, S/O.LATE RAGHAVAN, BINOY BHAVAN, CHEMMANATHUKARA.P.O, VAIKOM, KOTTAYAM DISTRICT. BY ADV. SRI.M.P.KRISHNAN NAIR RESPONDENT(S): -------------------------- 1. THE SECRETARY, DISTRICT PANCHAYATH, KOTTAYAM. 2. THE EXECUTIVE ENGINEER, LOCAL SELF GOVERNMENT, PUBLIC WORKS DIVISION, KOTTAYAM DISTRICT PANCHAYATH, KOTTAYAM. R1 BY ADV. SRI.JOSY ANTONY R2 BY GOVERNMENT PLEADER SRI. VTK.MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.16802/2006 APPENDIX PETITIONER'S XHIBITS: P1 COPY OF THE SANCTION ORDER NO.E2-43/03 DATED 29/3/2003 ISSUED BY THE 2ND RESPONDENT. P2 COPY OF THE TENDER SCHEDULE ISSUED BY THE 2ND RESPONDENT. P3 COPY OF THE NOTICE DATED 10/12/2005 ISSUED BY V.MANOMOHANAN. P4 COPY OF THE O.P.O.220/2006 DATED 27/2/06 FILED BY THE PETITIONER BEFORE THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. P5 COPY OF THE NOTICE ISSUED BY THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. P6 COPY OF THE REPLY NOTICE DATED 21/1/2006 SENT BY THE RESPONDENTS. P6(A) COPY OF THE COVER OF THE REPLY NOTICE (EXT P-6). P7 COPY OF THE ORDER IN O.P.220/2006 DATED 10/5/2006 PASSED BY THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. P8 COPY OF THE RECEIPT NO.5 DATED 2/12/2005 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R1 COPY OF THE AUDIT ENQUIRY NO.22. R2 COPY OF THE G.O.(MS) NO.1341/99/FIN DATED 4/5/99. /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 16802 of 2006-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2011. JUDGMENT Ext.P7 order passed by the learned Ombudsman for Local Self Government Institutions is under challenge in this writ petition. The matter relates to the claim for balance amount under a contract work. The learned Ombudsman found that there was nothing to interfere since the short payment was based on the audit objection raised by the Accountant General. 2. The contract in question was for execution of the work relating to improvements to Kombara-Valiyathura road in T.V. Puram Panchayat. The tender was invited by the second respondent Executive Engineer. The petitioner's tender being the lowest tender, was accepted and a sanction order was issued as per Ext.P1 at a reduced percentage of 10.01% below the estimate rate. Thereafter, an agreement was executed and Ext.P2 is the copy of the tender schedule. The probable amount of contract is Rs.2,65,347/-. The work was completed by him and thereafter the final bill was also submitted. But at the time of sanctioning the bill, an amount of Rs.27,475.98 was not paid to him. He sent a lawyer notice and thereafter a wpc 16802/2006 2 reply was received stating that the amount is reduced on the basis of the audit objection. 3. Learned counsel for the petitioner submitted that the tender was accepted on agreed terms and accordingly the work was also executed. It is pointed out that audit objection cannot result in a reduction of the amount for which the work was tendered, since the respondents are bound by the terms of the agreement itself. It is further pointed out that the audit objection did not result in any competent proceedings of any authority whereby the amount tendered by him has been reduced. It is therefore submitted that the respondents are bound by the terms of the agreement which cannot be varied in the light of the audit objection raised. 4. Learned Govt. Pleader submitted that the audit raised an objection and the admissible rate was arrived at Rs.1091.06/10M3 and Ext.R1 is the audit objection raised by the Accountant General in the matter. It is therefore pointed out that whatever amount is due to the petitioner is only at the said rate and therefore a reduction of the amount is perfectly justified. The above contention was accepted by the learned Ombudsman. 5. There cannot be any dispute that the quoted rate of the wpc 16802/2006 3 petitioner was accepted, that too below the estimate rate at 10.01%. His was the lowest tender. Thereafter, a selection notice was also issued. From the date of issuance of the selection notice till the completion of final work and submission of final bill, no proceedings have been issued to the petitioner reducing the rate that is accepted. There is no plea that the schedule was altered after notice to the petitioner or by executing another agreement. 6. Therefore, there cannot be any doubt that the respondents are bound to disburse the amount in terms of the agreed rate. Apart from that, as rightly pointed out by the learned counsel for the petitioner, the tender was accepted at a rate 10.01% below the estimated rate. If that be so, all the possibilities have been countenanced while accepting the tender and thereafter there cannot be any reduction on any ground whatsoever unless agreed by both parties. I find force in the above submission. 7. But none of the above aspects have been considered by the learned Ombudsman. The fact that the respondents are bound by the terms of the agreement, is not also considered. 8. In that view of the matter, the order Ext.P7 is quashed. The writ wpc 16802/2006 4 petition is allowed. There will be a direction to the respondents to disburse the amount of Rs.27,475.98 within a period of two weeks from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/