IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 36455 of 2007(M) -------------------------- PETITIONER: -------------- V.V.VINODKUMAR, AGED 46 YEARS, D/O.VELAYUDHAN NAIR, VINOD BHAVAN, KAKKANAD, ERNAKULAM. BY ADV. SRI.M.P.VIJAYAN RESPONDENTS: ----------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. 3. THE VILLAGE OFFICER, THRIKAKARA VILLAGE OFFICE. 4. THE VILLAGE EXTENSION OFFICER, KAKKANAD, ERNAKULAM. 5. THE ASSISTANT ENGINEER, DISTRICT PANCHAYATH, ERNAKULAM. 6. THRIKKAKARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, THRIKKAKARA, KAKKANAD. 7. THE CONTROLLER OF LOCAL FUND AUDIT, TRIVANDRUM BY ADV. SRI.S.SHANAVAS KHAN FOR R6 GOVT.PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT WHEN THE CASE WAS CALLED, THERE WAS NO REPRESENTATION. HENCE, DISMISSED FOR DEFAULT. SD/- ANTONY DOMINIC, JUDGE RP/- S.SIRI JAGAN, J. ================== W.P(C).No.36455 of 2007 ================== Dated this the 23rd day of May, 2009 J U D G M E N T As a convenor of a beneficiary committee for certain works for the 6th respondent, the petitioner executed certain works. He received payment in respect of the same as per the bills submitted in that regard. Thereafter, the petitioner was served with Ext.P1 notice by the 6th respondent intimating the petitioner that as per the audit objection attached therewith, the petitioner received excess amount amounting Rs.47,145.24 and directed the petitioner to refund the same. Based on the same, Ext.P4 revenue recovery proceedings also have been initiated. The petitioner is challenging those proceedings. 2. The petitioner's contention is that as is evident from Ext.P3, the concerned Assistant Executive Engineer had duly certified the amounts due to the petitioner and as per the same, the balance amount due to the petitioner was Rs.1,05,000/-, which only has been paid to the petitioner and, therefore, the petitioner is not liable to refund any amount. The petitioner points out that the value of the work was Rs.1,74,113.37 and as per the orders on the subject, beneficiary committees are entitled to 40 per cent extra, which amounts to Rs.69,645.34 and, therefore, the total amount payable to the petitioner for the work is Rs.2,43,758.71, out of which, the petitioner was paid Rs.1,38,759/- earlier and balance of Rs.1,05,000/- 2 as per the final bills certified by the concerned Assistant Executive Engineer, has also been paid to the petitioner. 3. The learned counsel for the Panchayat would point out that 40 per cent has to be calculated only on the amount after deducting the value of the departmental supply. The total departmental supply comes to Rs.74,335.37. After deducting that amount from Rs.1,74,113.37 which is the value of the work, the 40 per cent comes to only Rs.29,734.15 and, therefore, the total amount payable to the petitioner is only Rs.1,04,069.51 and the petitioner has received mobilization advance of Rs.38,981.00, after deducting which the petitioner is entitled to only Rs.65,088.52, whereas the petitioner has been paid Rs.1,12,233.75. Therefore, the petitioner is liable to repay Rs.47,145.25. On these contentions, the 6th respondent supports Exts.P1 and P2. But of course, learned counsel for the Panchayat admits that as is revealed by Ext.P3, the amount paid to the petitioner was only Rs.1,05,000/- and not Rs.1,12,233.75 as mentioned in Ext.P1. But, according to the Panchayat, they are bound by the audit objections and therefore, that demand has only been made on the petitioner. 4. Obviously, the issue revolves round calculation of 40 per cent. As per Ext.P1 audit objection, 40 per cent has to be calculated on the value of the work after deducting the value of the materials 3 supplied by the Department. The petitioner could not dispute the correctness of the said contention or the calculation based thereon. If that be so, the petitioner had received excess amount. But the amount paid to the petitioner is only Rs.1,05,000/- and not Rs.1,12,233.75 as stated in Ext.P1. Therefore, the balance amount would come to only Rs.40,912/-. The petitioner is only liable to refund that amount. Accordingly, this writ petition is disposed of holding that the respondents are entitled to recover only Rs.40,912/- from the petitioner. 5. The counsel or the petitioner submits that the petitioner may be permitted to pay off the said amount in instalments. The petitioner shall pay the said amount in six equal monthly instalments starting from 1.6.2009. Every subsequent instalment shall be paid on the first working day of every succeeding month. If the petitioner pays the instalment amounts on the due dates, further coercive recovery proceedings shall be kept in abeyance. However, if the petitioner commits default in payment of any one of the instalments, it would be open to the respondents to recover the entire amount in one lump sum. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 4