IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 21076 of 2006(H) ------------------------------------- PETITIONER(S): -------------------------- V. CHELLAPPAN PILLAI, AGED 78 YEARS, S/O. K.VELAYUDHAN PILLAI, ONAMPALLIL VEEDU, PALLIMAN VILLAGE, NALLILA P.O.,KOLLAM DISTRICT. BY ADV. SRI.B.JAYASANKAR RESPONDENT(S): ----------------------- 1. THE DISTRICT PANCHAYATH, KOLLAM, REPRESENTED BY ITS SECRETARY. 2. THE ASST.EXECUTIVE ENGINEER(AGRICULTURE) KAREEPUZHA, KOLLAM. R1 BY ADV. SRI.B.KRISHNA MANI R2 BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.21076/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RECEIPT FOR RS. 1,15,150/0 DTD. 16.3.99. P2:- COPY OF THE VOUCHER NO.8 DTD. 18.3.1999. P3:- COPY OF THE RECEIPT FOR RS. 97,200/- DTD. 27.11.1999. P4:- COPY OF THE RECEIPT FOR RS. 60,000/- DTD. 16.3.2000. P5:- COPY OF THE VOUCHER NO.40 DTD. 28.11.1999. P6:- COPY OF THE VOUCHER NO.63 DTD. 18.3.2000. P7:- COPY OF THE ORDER IN OP. 1231/2001 DT.D 2.9.2002. P8:- COPY OF THE REPORT SUBMITTED TO THE DLTC BY THE COMMITTEE APPOINTED BY THE DLTC . P9:- COPY OF THE ABSTRACT OF THE MINUTES OF THE GENERAL BODY MEETING HELD ON 14.3.03. P10:- COPY OF THE AGREEMENT . P11:- COPY OF THE ESTIMATE PREPARED BY the 2ND RESPONDENT. P12:- COPY OF THE ORDER IN OP. 23/06 DTD. 3.4.2006. P13:- COPY OF THE 21076/2006 RESPONDENT'S EXHIBITS R2(a):- COPY OF THE MINUTES OF THS SANGHADAKA SAMITHY MEETING HELD ON 2.8.99. R2(b):- COPY OF THE LETTER DTD. 24.2.2000 OF THE SECRETARY, JILLA PANCHAYATH. R2(c):- COPY OF THE MINUTES DT.D 11.11.2003. R2(d):- COPY OF THE MINUTES OF MEETING HELD ON 21.12.04 OF DISTRICT LEVEL TECHNICAL COMMITTEE SUB GROUP A. R2(e):- COPY OF THE LETTER DTD. 6.4.05 SUBMITTED TO DLTC SUB GROUP B. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.21076 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of November, 2011 J U D G M E N T The petitioner was the Convenor of a Beneficiary Committee for execution of a project by name Model Paddyseed Production Unit on behalf of the 1st respondent, viz. District Panchayat, Kollam. Although no formal agreement was executed for the work at that time, the petitioner as the convenor of the beneficiary committee started the work. According to the petitioner, for earth filling the petitioner spent about Rs.2,91,300/- as evident from Exts.P1 to P6 vouchers. While the work was in progress, Ext.P10 agreement was executed in respect of the execution of the work. As per Clause 10 of Ext.P10 the final bill amount payable to the petitioner would be the amount shown in the bill prepared by the Engineers of the Agricultural department on the basis of the rates as per the agreement or the amounts spent by the petitioner which ever is less. The project was slated for the year 1998-99. W.P.(C)No.21076 of 2006 -2- But the work was entrusted to the petitioner only during the year 1999-2000. Therefore it was decided to apply the rates as applicable with effect from 01.07.1999 for the work in question. Accordingly the Engineers of the District Level Technical Committee prepared Ext.P11 bill. The petitioner has no dispute regarding Parts I to V of Ext.P11 bill. The dispute relates to Part V of the bill relating to earth filling. In Ext.P11, the Engineers estimated the amount spent as Rs.2,41,484.50 rounded to Rs.2,41,485/-. But the amount payable in respect thereof was limited to Rs.1,20,000/- on the basis of a letter from the Secretary of the 1st respondent District Panchayat to the effect that the petitioner spent only Rs.1,20,000/- for the earth filling. The petitioner submits that the petitioner has actually spent Rs.2,91,300/- as evident from Exts.P1 to P6 vouchers. Therefore, there was absolutely no reason for the Secretary to intimate that the amount spent by the petitioner is only Rs.1,20,000/-. The petitioner points out that this is on the basis of a mistaken interpretation of a minutes of the meetings of the W.P.(C)No.21076 of 2006 -3- Samithi, which was entrusted with the work, of which, the petitioner was the convenor, on 02.08.1999, wherein it was stated that, up to that date, the samithi had spent Rs.1,20,000/- for the earth filling work. The Panchayat took it as the final amount spent, which was wrong. The petitioner would submit that after 02.08.1999, as evident from Exts.P3, P4, P5 & P6, the petitioner had spent further amounts for earth filling and the total amount spent would come to Rs.2,91,300/-. Therefore, the petitioner is entitled to the amount fixed in Ext.P11, which is Rs.2,41,485/-, is the contention raised by the petitioner. Although the petitioner approached the Ombudsman for Local Self Government Institutions, the petitioner's claim was rejected by Ext.P12. It is under the above circumstances, the petitioner has filed this writ petition. The petitioner seeks the following reliefs: “(i) to issue a writ of certiorari or any other appropriate writ order or direction setting aside Exhibit P12 order of the Ombudsman For Local Self Government Institution, Thiruvananthapuram. (ii) to declare that the petitioner is entitled to be paid the amounts estimated for earth filling work as estimated by the implementing officer in Exhibit P11. W.P.(C)No.21076 of 2006 -4- (iii) to declare that the Secretary of the 1st respondent has absolutely no authority to revise the estimate prepared by a technically competent authorized Engineer. (iv) to declare that the reduction of the estimated amount for the earth filling work executed by the petitioner on behalf of the beneficiary committee from Rs.2,41,485/- to Rs.1,20,000/- on the orders of the Secretary of the 1st respondent is illegal. (v) to direct the respondents 1 and 2 to immediately make payments of the additional amounts expended for the earth filling work as estimated in Exhibit P11 by the 2nd respondent with interest @ 18% per annum.” 2. The 2nd respondent has filed a counter affidavit and the advocate for the 1st respondent has filed a statement seeking to controvert the contentions of the petitioner. According to them, the petitioner had spent only Rs.1,20,000/-. Therefore in accordance with Clause 10 of Ext.P10, the petitioner is entitled to only that amount and not the amount fixed in Ext.P11 is their contention. 3. I have considered the rival contentions in detail. 4. Clause 10 of Ext.P10 reads as follows: “10. ºáÎÄÜæM¿áJßÏ ®FßÈàÏVÎÞV çø¶æM¿áJáK ¥{Õáµ{á¢ µøÞV ©¿O¿ßÏßæÜ ÈßøAáµ{á¢ ¥¿ßØíÅÞÈæM¿áJß ÄÏîÞùÞAáK ÌßW ÄáµçÏÞ, ÏÅÞVjJßW æºÜÕÞAßÏ ÄáµçÏÞ ¯ÄÞçÃÞ µáùÕí, ¥ÄÞÏßøßAá¢ µYÕàÈVAí ÈWµáK èËÈW ÌßW Äáµ, ÌßW ÄáµÏßW ÈßKá¢ ÈßµáÄßµ{á¢ æµGß¿ ÈßVNÞÃ æÄÞÝßÜÞ{ß çfÎÈßÇß ÕßÙßÄÕá¢ Éß¿ßAáKÄÜï.åÎØíxV çùÞZ, ÕøÕí_æºÜÕí µÃAí W.P.(C)No.21076 of 2006 -5- ÉáØñµ¢, æÎ×VæÎaí ÌáAí ®KßÕÏßW çø¶æM¿áJßÏßGáU µÃAáµ{áæ¿Ïá¢ ÏÅÞVÄÅ æºÜÕßæaÏá¢ ¥¿ßØíÅÞÈJßÜÞÏßøßAá¢ ·áÃçÍÞµñcÕßÙßÄ¢ µáùÏíAáµ.” 5. Ext.P11 is the revised estimate prepared by the District Level Technical Committee of the 2nd respondent for the work in question. As per which, the amount fixed for earth filling is Rs.2,41,485/-. Therefore, going by Clause 10 of Ext.P10, the petitioner is entitled to either Rs.2,41,485/- or the actual amount spent by the petitioner if the same is less than Rs.2,41,485/-. Therefore, the question that arises for consideration is whether the petitioner had spent Rs.2,91,300/- as claimed by him. As stated by me above, the contentions of the respondents is that in a meeting held by the Samithi, of which the petitioner was the Convenor, held on 02.08.1999, it was accepted that the amount spent for earth filling was only Rs.1,20,000/-. If that is correct, the petitioner is not entitled to any further amount. If that is wrong, the petitioner is entitled to the actual amount spent by him or the amount fixed in Ext.P11 whichever is less. The 2nd respondent himself relies on Ext.R2 (a) W.P.(C)No.21076 of 2006 -6- Minutes of the meeting of the said Samithi held on 2.8.1999. In the same, in respect of the amount spent for earth filling, it is stated is thus: “§ÄßÈßæ¿ µÜï¿ §ùßç·×æa ÍÞ·ÎÞÏß æÄÞG¿áJ dÉçÆÖB{ßW µÈÞÜßÈáçÕIß µáÝßAáK ÎHâ Øì¼Èc ÈßøAßW ÜÍßAáæÎKí ØNÄßºîá çÌÞicÎÞÏÄáæµÞIí d¿ÞXØíçÉÞVçG×X æºÜÕí ÕÙßºîá æµÞIí ÎHí ·áÃçÍÞµñc dÉçÆÖJí §¿áµÏáIÞÏß.åµÞÜÕV×¢ ¦ø¢ÍßAáKÄßÈí ÎáOÞÏßåÄæK ÈßÜ¢ ÉâVHÎÞÏß ÈßµJßæÏ¿áAÃæÎK ØÆáçgÖçJÞæ¿ ÜÍßºî ÎHßGá ÈßÜ¢ ÈßµJáµÏáIÞÏß.. ¨ §ÈJßW ØÎßÄßÏíAí ¦æµ ©IÞÏ ºßÜÕí 1,20,000/_ øâÉÏÞÏßøáKá.ådÉÕVJÈBZ ¦ø¢ÍßAÃæÎCßW ¨ ÕØñáÕßW §ÈßÏá¢ ÎHßGá ÈßµçJI ¦ÕÖcµÄÏáIí.å®Kí 19.3.1999_W ¼ßÜïÞ ÉFÞÏJßæÈ çÈøßGí çÌÞicæM¿áJßÏßøßAáKáæÕKí µc×ß ¥Øß.. ®µíØß. ®FßÈàÏV ¥ÍßdÉÞÏæMGá.” (underlining supplied) As is abundantly clear from the same, what the samithi has stated in Ext.R2 (a) is that, up to 02.08.1999 the amount spent was Rs.1,20,000/- which corresponds to Exts.P1 & P2 which is roughly Rs.1,20,000/-. But as is clear from the portion of Ext.R2 (a) quoted above, the samithi themselves stated that for starting functioning of the project, it is necessary to fill the land further which fact the samithi had already convinced the District Panchayat. Ext.P3 is dated 27.11.1999, which is a voucher for payment of Rs. 97,200/- W.P.(C)No.21076 of 2006 -7- for earth filling. Ext.P4 is dated 16.3.2000, which is a voucher for Rs. 60,000/-, for earth filling. Ext.P5 is a further voucher for Rs. 6,800/- for earth levelling. Ext.P6 is dated 18.3.2000, which is also for Rs. 5,250/- for levelling of earth. These vouchers are not disputed either by the 1st or 2nd respondent. As is clear from those documents, subsequent to 2.8.1999, the petitioner had spent an amount of Rs. 1,69,250/-. Adding the amount spent by Exts.P1 and P2, the petitioner had actually spent for earth filling and levelling an amount of Rs. 2,91,300/-. The same read with Ext.R3(a), conclusively proves that the actual amount spent by the petitioner for earth filling and levelling is Rs. 2,91,300/-. Therefore, going by clause 10 of Ext.P10, the petitioner is entitled to the amount computed by the District Level Technical Committee in Ext.P11, which is Rs. 2,41,485/-. The petitioner is entitled to get that amount in addition to what has already been paid to him. The Ombudsman while passing Ext.P12 did not actually address himself to the issue and went on a tangent wrongly W.P.(C)No.21076 of 2006 -8- assuming that the petitioner's case was one relating to rate. Therefore, Ext.P12 is clearly unsustainable. Therefore, Ext.P12 order of the Ombudsman contrary to the above findings is quashed. Accordingly, this writ petition is allowed and the respondents are directed to see that the petitioner is paid the balance amount of Rs.1,21,485/-, due to the petitioner for earth levelling work as per Ext.P11, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/