IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 AS.No. 471 of 2001(E) --------------------- OS.77/1994 of SUB COURT, OTTAPPALAM .................... APPELLANT/1st DEFENDANT: ------------------------------- THE ANANGANADI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, ANANGANADI PANCHAYATH, ANANGANADI POST, PANAMANNA, OTTAPPALAM TALUK. BY ADV. MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE MR.SANTHEEP ANKARATH RESPONDENTS/PLAINTIFF & DEFENDANTS 2 & 3: ----------------------------------------------------- 1. K.RAMADAS, S/O.UNNIKRISHNAN NAMBIAR, KAYARAT HOUSE, SOUTH PANAMANNA POST, KANNIYAMPURAM AMSOM IN OTTAPPALAM TALUK. 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), TALUK OFFICE, OTTAPPALAM. 3. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. GOVERNMENT PLEADER MR.P.K.RAVIKRISHNAN FOR R2 & 3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ A.S.No.471 Of 2001 ---------------------- Dated this the 28th day of May, 2010. J U D G M E N T The first defendant in O.S.No.77 of 1994 on the file of the Sub Court, Ottappalam is the appellant. The suit was one for declaration, permanent injunction and for realisation of money. The court below decreed the suit in part declaring that the plaintiff is not liable to pay the amount as per Exts.A3 and A4 demand notices. A decree of permanent prohibitory injunction was also passed restraining the defendants from realising the amount from the plaintiff. The claim for Rs.3,000/- put forward by the plaintiff is disallowed. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff was the convenor of a committee constituted by the local people to undertake public works under the Jawahar Rozgar Yojana Scheme. The 1st defendant Panchayath allotted two works to the committee constituted by the people; Ananganadi-Cherampattakavu road and Vattar- Kallittamkuruchi road. Estimate for the first work was Rs.4 Lakhs and Rs.1.5 Lakhs for the second work. An amount of Rs.2 Lakhs A.S.No.471 Of 2001 ::2:: was advanced by the first defendant for the first work. It is the plaintiff's case that he had completed the work of metalling and construction of the road. The plaintiff thereafter applied to the Panchayath for supply of 21 tonnes of tar for black topping the road. The plaintiff further contended that the first defendant failed to supply the tar and hence work could not be completed. According to him the second work was completed. It is the plaintiff's case that he had spend Rs.3,000/- excess amount for completion of the first work. Plaintiff further contended that the Panchayath did not claim any amount towards loss assessed by it, but, demanded Rs.56,741.17/- towards the alleged loss sustained owing to the non-tarring of the first work on the basis of the loss assessed by the Vigilance Director. According to him, Panchayath initiated recovery proceedings on the basis of the directions issued by the Project Officer, DRDA, Palakkad to recover that amount from the plaintiff without enquiry and notice. 3. The appellant contended that the plaintiff did not complete the work as per the agreement and failed to do the black topping of the road which consequently disturbed the top layer metal spread and caused considerable damage to the entire A.S.No.471 Of 2001 ::3:: structure of the Ananganadi-Cherampattakavu road. The Panchayath maintained the stand that the damage was caused only due to the negligence of the plaintiff. The Panchayath also denied the allegation in the plaint that the plaintiff had given a letter requesting for supply of tar which was not complied with by the Panchayath. The Panchayath denied the issuance of such a letter and according to the Panchayath, it was the duty of the plaintiff to get necessary tar and if the plaintiff could not procure the tar in time he is responsible for the non-completion of the work. 4. Since the top layer metalling was completely damaged, the matter was enquired into by the Vigilance Director and it was found that there is inaction and negligence on the part of the plaintiff. Panchayath maintained the stand that the plaintiff was present throughout the enquiry and further pleaded that the plaintiff had to pay Rs.220/- to the Panchayath, which was received in excess by him. The appellant submitted before this Court that the application filed by the appellant to call for the records pertaining to the Vigilance Enquiry was dismissed by the trial court without sufficient reasons. The appellant is aggrieved A.S.No.471 Of 2001 ::4:: by the decree passed by the court and according to the appellant the decree was passed without considering the legal questions properly. 5. Learned counsel for the appellant/1st defendant also referred to the relevant clause in the agreement which according to him, it is the duty of the plaintiff to apply tar by procuring the required quantity of tar. The learned counsel for the appellant/1st defendant submitted that the plaintiff failed to produce any document to convince the court that he had at any point of time demanded tar from the Panchayath. From the facts and evidence adduced by the parties, it is seen that the plaintiff had taken no steps to prove that it is the duty on the defendant to supply tar. Even the agreement was not seen produced. The trial court examined the question as to whether the plaintiff is entitled to get a declaration with respect to the claim put forward by him. According to the appellant, there is no basis for the contention of the plaintiff that the defendant had not issued any notice nor any opportunity was afforded to him to substantiate his contentions during the Vigilance Enquiry and that he was not aware of such enquiry and therefore the amount assessed by the Vigilance is A.S.No.471 Of 2001 ::5:: without following the principles of natural justice and he is not liable to pay the amount. Learned counsel for the appellant pointed out that the plaintiff failed to prove that no notice was issued to him nor he was given an opportunity o substantiate his contentions during enquiry. On the other hand the appellant contended that the plaintiff participated in the enquiry and he was given sufficient opportunity to substantiate his case. It is also contented by the appellant that there is no basis for the contention that the black topping of the Ananganadi- Cherampattakavu road could not be completed due to non-supply of the required tar by the first defendant Panchayath. I have stated the contention of the appellant regarding the stand taken by the Panchayath with respect to the alleged non-supply of tar. From the materials on records it can be seen that the plaintiff failed to substantiate his case that he submitted an application before the Panchayath for supply of required quantity of tar and in spite of repeated request Panchayath failed to supply the required tar and therefore he could not complete the black topping of the road. According to the appellant there is no basis for the submission of the plaintiff. The plaintiff failed to adduce A.S.No.471 Of 2001 ::6:: any evidence to prove that it is for the Panchayath to procure tar for the purpose of black topping. The trial court also wrongly placed onus of proof on the defendant to prove that there is latches and inaction of the part of the plaintiff in completing the construction of the said road. It is for the plaintiff to prove that the first defendant is duty bound to supply requisite quantity of tar and the work could not be completed due to non-supply of tar by the Panchayath etc. The court below also simply believed the case of the plaintiff that no notice was issued to him and no opportunity was afforded to him to substantiate his case during vigilance enquiry. In fact, plaintiff failed to prove that no opportunity was afforded to him to substantiate his contentions during the enquiry proceedings. It is a fact that the plaintiff did not complete the work in accordance with the terms and conditions and therefore the Panchayath had to rearrange the work and as a result, Panchayath had suffered loss. If the work was not completed by the plaintiff in time and to due to his own default, the plaintiff will be liable to compensate the Panchayath to the extent of loss sustained due to rearrangement of work. In the aforesaid facts and circumstances granting of a decree, in A.S.No.471 Of 2001 ::7:: favour of the plaintiff cannot be upheld by this Court. The matter requires reconsideration at the hand of the trial court. In the result, the appeal is partly allowed. The matter is remanded for fresh consideration in accordance with law. The court below shall try and dispose of the suit within a period of six months from the date of receipt of a copy of this judgment. Since the plaintiff/respondent did not appear before this Court, notice shall be issued to the parties. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-