IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 WP(C).No. 1959 of 2009(G) ------------------------------------- PETITIONER: ------------------- GEO TECH CONSTRUCTION COMPANY PVT.LTD., KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, KOCHI- 682 036, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS. SRI.BECHU KURIAN THOMAS, SRI.PAUL JACOB. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE CONSTRUCTION CORPORATION LIMITED, CARMEL CENTRE, BANERJI ROAD, ERNAKULAM, KOCHI -18,REPRESENTED BY ITS GENERAL MANAGER. R1 BY SR. GOVERNMENT PLEADER SRI. P. NARAYANAN, R2 BY ADV. SRI.M.V.THAMBAN, S.C., K.S.C.C LTD., THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.1959/2009-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SCHEDULE SHOWING THE AMOUNT DUE TO THE PETITIONER AND THE DATE FROM WHICH THE AMOUNT FELL DUE TILL 31/12/2008. EXT.P.2: COPY OF THE JUDGMENT DTD. 11/04/2008 IN O.P. NO. 29878/2002. EXT.P.3: COPY OF THE VIGILANCE ENQUIRY REPORT NO. VE 14/07/KNR. DTD. 10/07/2008 OF THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE & ANTI CORRUPTION BUREAU, KANNUR. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE ORDER NO. W1-D5/653/VOL VII DTD. 12/12/2000. EXT.R2.B: COPY OF THE ORDER NO. CC/GM/BRIDGE/EE/164 DTD. 19/04/2002. EXT.R2.C: COPY OF THE NOTICE NO.AS/4698/88 DTD. 03/01/2007. EXT.R2.D: COPY OF THE INQUIRY REPORT ON 22/09/2007. //TRUE COPY// P.S. TO JUDGE. Prv. P.R.RAMACHANDRA MENON, J -------------------------------------- W.P.(C) No.1959 OF 2009 -------------------------------- Dated this the 21st day of March 2011 JUDGMENT The petitioner, who was awarded the work given by the 2nd respondent, completed the works to the satisfaction of the 2nd respondent (as put forth by the petitioner); despite which the amount due to the petitioner was not satisfied, leading to different rounds of litigation. 2. The prayers raised by the petitioner in the Writ Petition are as follows: i) Issue a writ of mandamus or other appropriate writ, direction or order commanding and compelling the 2nd respondent Corporation to disburse the amount due t the petitioner as shown in Ext.p1 for the work executed for the Government with interest at the rate of 18% till the entire amount is paid off. ii) Declare that the petitioner is entitled to receive interest from the second respondent for the deliberate and culpable delay on the part of the 2nd respondent Corporation in passing over the amount received by it from the Government for the work which is actually executed by the petitioner. Iii) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case. 3. In the course of the proceedings, the petitioner has filed I.A No.3775/2011 seeking a direction to disburse a sum of W.P.(C) No. 1959/2009 - 2 - Rs.50,53,281/-, which is stated as the admitted amount as shown in Ext.P5 (a statement filed by the petitioner on making necessary application under the Right to Information Act). 4. The case of the petitioner is that, after having admitted the liability to the said extent (as against the total liability of nearly Rs.1.77 crores, including the principal amount and the interest) even the admitted liability is not being satisfied, which is sought to be intercepted by this Court. 5. The learned standing counsel appearing for the 2nd respondent submits that the liability is not fully admitted. 6. The learned counsel for the petitioner submits that, after the completion of work, the amount was not satisfied because of various reasons, which made the petitioner to approach this Court as mentioned before. In the course of proceedings, it was brought to the notice of this Court that (as put forth by the learned counsel for the 2nd respondent) that the petitioner had not satisfied the work completely; that there was serious defects and that the petitioner was not entitled to have the amount sought for in the said circumstances. 7. The learned counsel for the petitioner submits that an observation was made by this Court in Ext.P2 judgment observing that the matter required to be considered by the Chief Technical W.P.(C) No. 1959/2009 - 3 - Examiner. Accordingly, the Chief Technical Examiner examined the matter, leading to Ext.R2(d) report dated 22-09-2007 with the following conclusion. “In view of all the above facts, a detailed Vigilance Enquiry into the execution of the above work as advised by the Hon'ble High Court may be considered to bring out any foul play or manipulation and also to fix the responsibility.” Pursuant to R2(d) report of the Chief Technical Examiner, a Vigilance Enquiry was pursued, which led to Ext.P3 vigilance report dated 10-07-2008, which according to the petitioner stands in favour of the petitioner. Specific reliance is also made to the contents of Ext.P3 at page 54, which reads as follows: “The above discussed facts and circumstances shows that no irregularity is found in the work of Sulthan Canal and there is no doubt that the canal is navigable. As per Ext.E an amount of Rs.3,15,81,465/- was received by KSCCL from Irrigation Department after deducting recoveries for the Phase I work. As per Ext.F an amount of Rs.2,77,97,162/- was received by KSCCL from Irrigation Department after deducting recoveries for the construction of Phase II work.” The learned counsel for the petitioner submits that in the light of Ext.P3, the stand now being taken by the 2nd respondent to deny the amount due to the petitioner and that too, the 'admitted amount' covered by Ext.P5 is not correct or sustainable. W.P.(C) No. 1959/2009 - 4 - 8. However, the learned counsel for the 2nd respondent submits that the fact whether Ext.P3 enquiry report has been accepted by the Govt. is still to be ascertained. It is also stated that, the matter may require further probe in respect of the involvement of some officials and that the actual liability is still to be fixed; more so in view of the various defects pointed out in R2(d) and the non completion of the works. In any view of the matter, the fact remains that Ext.P3 report stands more in favour of the petitioner and that the amount as shown in Ext.P5, to the tune of Rs.50.53,281/-, is still to be disbursed to the petitioner. 9. The learned counsel for the petitioner submits that the petitioner will be satisfied if a direction is given to the 2nd respondent to realise the said amount without prejudice to the rights and liberties of the petitioner to pursue necessary steps for realisation of the balance amount including interest, by way of other appropriate proceedings. It is stated, the 2nd respondent, according to the petitioner, has already obtained the entire amount from the Government and hence there is no rationale on the part of the 2nd respondent to retain the same without being disbursed to the petitioner. 10. After hearing both the sides, this Court finds it fit and proper to permit the petitioner to have the admitted amount as W.P.(C) No. 1959/2009 - 5 - covered by Ext.P5, with liberty to pursue the claim in respect of the balance amount allegedly due, by way of such other proceedings before the appropriate forum. The 2nd respondent is directed to disburse Rs.50,53,281/- to the petitioner within 'three months' from the date of receipt of a copy of this judgment. It is also made clear that, it will not place a bar on the way of the writ petitioner in proceeding with further steps for release of the balance amount, allegedly due to the petitioner, by way of appropriate proceedings in accordance with law, before such other appropriate forum. Writ Petition is disposed of. P.R.RAMACHANDRA MENON JUDGE vdv