IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 36388 of 2008(F) ------------------------------------- PETITIONER(S): -------------------- THAHA, S/O ABU, AGED 48 YEARS, MATHILAKATH, KOCHI-682 005. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.N.SASIDHARAN NAIR RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, CORPORATION OF KOCHI, ERNAKULAM. 4. THE SECRETARY, CORPORATION OF KOCHI, ERNAKULAM. ADV. SRI.M.K.CHANDRAMOHAN DAS,SC,COCHIN COPN FOR R3 & 4 GOVT.PLEADER SMT.SUDHADEVI SRI.S.RAMESH BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/02/2009, THE COURT ON 04/03/2009 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ============== W.P.(C) NO. 36388 OF 2008 (F) ==================== Dated this the 4th day of March, 2009 J U D G M E N T The prayer in this writ petition is to direct the respondents to disburse the petitioner balance amount due as per Ext.P2 and referred to in Ext.P4. 2. The facts of the case are that by Ext.P1 order issued by the 1st respondent, taking into account the reality that “the problem of solid waste management in Kochi Corporation had become a full blown crisis” warranting its immediate intervention and despite the fact that there exists the Cochin Corporation, with its Mayor, Elected Councillors, Secretary and Officers, the Government decided to constitute a Monitoring Committee headed by the District Collector as a stop-gap measure to manage the crisis, till the Brahmapuram Plant is completed. It is also specified in Ext.P1 that the “entire expenditure to be incurred by the District Collector, Ernakulam for the above operation has to be met by the Kochi Corporation”. 3. In pursuance to Ext.P1, offers were invited by the District Collector for the supply of vehicles and machinery for removal of the garbage and finally the offer made by the petitioner was accepted. That WPC 36388/08 :2 : led to the execution of Ext.P2 agreement dated 24th of September, 2007 between the Corporation of Kochi, represented by the District Collector and the petitioner, wherein the rate at which the petitioner was to supply the vehicles has been specified and the contractor has been directed to present his monthly bills before the 10th of every month. Following Ext.P2, on behalf of the Corporation, the District Collector issued Ext.P3 work order to the petitioner. 4. On the basis of the above, petitioner has executed the work and was being paid at rates as agreed between the parties. It would appear that the system followed was that the Corporation was making available amounts in advance to the District Collector, from out of which, the amounts due to the petitioner was being paid. It is stated that on completion of the work, petitioner submitted his final bill, and by the time, the advance amount made available to the District Collector was exhausted. Therefore, the District Collector issued Ext.P4 letter to the Secretary of the Corporation, the relevant portion of which reads as under; The bills submitted by Mr.M.A.Thaha, for the supply of Hitachi, JCB and Tipper lorries were verified and certified by the Corporation and recommended for payment. Total claim of Mr.Thaha from 9/07 to 31/7/2008 is Rs.2,82,42,952/- (Rupees Two crores eighty two lakhs forty two thousand nine hundred and fifty two only) as per the recommendation made by the WPC 36388/08 :3 : Corporation. Out of this, an advance amount of Rs.2,40,96,265/- (Rupees Two crores forty lakhs ninety six thousand two hundred and sixty five only) was paid by the District Collector to him. A balance of Rs.48,40,041/- is due to be paid to Sri.M.A.Thaha including the deduction of Rs.6,93,354/- towards income tax and Workers Welfare Fund to be remitted to the departments concerned. (emphasis supplied) 5. After the issuance of Ext.P4, petitioner admits of having received payment of Rs.16,92,229. However, full settlement was not made and therefore, the writ petition was filed. 6. A counter affidavit has been filed by the Corporation where it has justified its action in not making available further funds with the District Collector. It is stated in the counter affidavit that following Ext.P1 Government Order, the Corporation has paid advance amounts to the District Collector and that the Corporation is bound to regularise the advance so paid, on the strength of proper bills and vouchers. It is stated that the Corporation has not so far received complete accounts of the advance paid. According to the Corporation, they have to deduct the income tax, VAT and Welfare Fund from the bills of the contractors in respect of the expenditure incurred through the Collector and that they are not in a position to ascertain the amount towards such taxes and Welfare WPC 36388/08 :4 : Fund for want of details, which are to be furnished by the District Collector. For these reasons, it is stated that the amount claimed by the petitioner can be disbursed only after auditing the entire details for the expenditure incurred for the disposal of waste. 7. When this writ petition came up for orders on 23/1/2009, the counsel for the Corporation suggested that for an amicable resolution of the controversy, it was desirable that there should be a discussion involving the District Collector, the officials of the Corporation and the petitioner. Fully accepting that this was a welcome suggestion and with the hope that the dispute would be settled, this Court passed an order directing the parties to discuss the issue to arrive at a settlement of the dispute. Accordingly, a discussion was held on 2/2/2009 and the minutes of the meeting is produced by the petitioner, along with IA NO.2907/09. The relevant portion of the minutes reads as under: It was brought out that an amount of (Rs.24,57,792/- less Rs.3,334/- as Statutory deduction =) Rs.24,54,458/- is payable to Sri.Thaha. Sri.Thaha has not disputed the amount. The point in question is mode of payment. Corporation Secretary took the stand that no further payment can be made to District collector without settling the advance already given. Finance Officer, Collectorate pointed out that bills and vouchers are in the custody of corporation. Corporation Secretary submitted that she would make available these files for scrutiny. Thereafter it was decided that F.O, Collectorate, H.O. Corporation and A.O corporation will WPC 36388/08 :5 : do a combined effort and submit the entire accounts pertaining to advance already received by District collector. This was to be done in a period of 10 days. Thereafter Corporation Secretary will place the statement before Council and see that payment to petitioner will be released at the earliest preferably within a period of 5 days. (emphasis supplied) 8. After the meeting, though this case came up for orders on 9/2/2009 and 19/2/2009, there was absolutely no progress and finally the case came up for orders on 27/2/2009. From the submissions made, it became evident that inspite of the meeting and the discussions that were held, the parties were still at loggerheads. In these circumstances, the only option left was to decide the matter on merits. 9. Ext.P1 itself show that fully realising the total failure on the part of the Corporation in the solid waste management in Cochin Corporation area, responding to the public outcry, the Government intervened and authorized the District Collector to constitute a monitoring committee under his control. The order specified that the entire expenditure incurred by the District Collector has to be met by the Corporation. Ext.P2 is the agreement that was entered into between the petitioner and the District Collector on behalf of the Corporation. It was thereafter that Ext.P3 work order was issued to the petitioner, which WPC 36388/08 :6 : shows that Ext.P2 agreement was accepted by the Corporation also. In pursuance to Exts.P2 and P3, the petitioner has executed the work and payment also has been made to him utilizing the funds made available by the Corporation. A reading of Ext.P4 shows that an amount of Rs.24,54,458 is the amount due to the petitioner, duly verified, certified and recommended for payment by the Corporation. The Corporation does not dispute the correctness of what is stated in Ext.P4 or its liability to pay. The petitioner also has no dispute about the amount as quantified. Ext.P4 also specifies the amount to be recovered as tax etc from the petitioner, which also is not disputed either by the petitioner or the Corporation. In such circumstances, the question is whether there is any justification for the Corporation to deny or delay the payment that is admittedly due. 10. A reading of the counter affidavit filed by the Corporation and the submissions made by the counsel for the Corporation before this Court would undoubtedly show that though they have no dispute about their liability or its quantum, the attempt of the Corporation is to somehow or the other, delay the payment due to the petitioner. The puerile justification offered is that the District Collector has not yet made available details of the expenditure that was incurred from out of the advance WPC 36388/08 :7 : already paid by the Corporation. It may be true that the Collector has not made available the details and that the Corporation has to regularize its accounts. However, these issues can be justification for delaying the payment due to the petitioner provided such audit or verification is necessary for quantifying the amount due and for making the payment to the petitioner. In this case, Corporation does not dispute the correctness of what is stated in Ext.P4 that the amount due to the petitioner has been verified, certified and recommended for payment by the Corporation itself. Ext.P4 even specifies the amount to be recovered towards tax etc. Even in the minutes of the meeting held on 2/2/2009, Corporation has not disputed the amount that is payable to the petitioner. If that be so, there cannot be any justification for delaying the payment that is legitimately due to the petitioner even if it is true that the Collector has not yet furnished the details of the expenditure already incurred. 11. In my view, there is absolutely no justification for this indifferent attitude shown by the Corporation and its officials. If the Corporation has some problem with the District Collector or with any other Department for that matter, it is for them to resolve such issues among themselves. But a contractor, who was entrusted with the work and that WPC 36388/08 :8 : too at a time when the Corporation of Kochi had proved itself totally incapable of dealing with the problem of waste management, cannot be made a scape goat for such disputes especially when the amount due is an admitted one. 12. Therefore, in the absence of any dispute regarding the quantum of amount that is payable, the Corporation must pay the amount that is due to the petitioner, of course after deducting the taxes, VAT or Welfare Fund or whatever that is recoverable. 13. In fact, at one stage of arguments, counsel for the Corporation suggested that it is the responsibility of the District Collector to make payment of the amount that is due. In the light of the documents that are produced in this case, I am satisfied that whatever the Collector has done was on behalf of the Corporation and therefore, the Corporation cannot wriggle out of its liability to pay to the petitioner and contend that the District Collector should be made liable for making the payment due. 14. Therefore, the writ petition will stand allowed directing that respondents 3 and 4 shall pay the balance amount that is due to the petitioner, as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. WPC 36388/08 :9 : 15. Although in this case, petitioner deserves to be awarded costs, still having regard to the fact that in the absence of anybody responsible in the party array in personal capacity, if cost is awarded, that again will have to be paid from out of the funds of the Corporation, I am restraining myself from passing such an order. Writ petition is allowed as above. ANTONY DOMINIC, JUDGE Rp