IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 WP(C).No. 27670 of 2007(R) ----------------------------------------- PETITIONER(S): ----------------------- K.RAMACHANDRAN, S/O. CHOYI, AGED 61 YEARS, CHITHRATH HOUSE, P.O.KARANTHUR, KOZHIKODE DISTRICT. BY ADVS.MRK.V.PAVITHRAN MR.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S): --------------------------- 1. EXECUTIVE ENGINEER, P.W.D. ROADS DIVISION, KOZHIKODE. 2. DISTRICT COLLECTOR, KOZHIKODE. 3. STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT. N.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.27670/2007 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PROCEEDINGS DTD. 9/06/2005 OF 2ND RESPONDENT ISSUING ADMINISTATIVE SANCTION TO FIRST WORK. EXT.P1(A): COPY OF PROCEEDINGS DTD. 16/10/2005OF 2ND RESPONDENT ISSUING ADMINISTATIVE SANCTION TO 2ND WORK. EXT.P2: COPY OF THE LETTER OF THE 1ST RESPONDENT ACCEPTING THE AGREEMENT NO.90/2005-06 IN RESPECT OF 1ST WORK. EXT.P2(A): COPY OF ...DO...DO.... AGREEMENT NO.87/2005-06 IN RESPECT OF 2ND WORK. EXT.P3: COPY OF LETTER DTD. 6/2/2006 OF MLA ADDRESSED TO 1ST RESPONDENT DTD. 22/07/2006. EXT.P4: COPY OF REVISED ADMINISTATIVE SANCTION DTD. 22/07/2006 ISSUED BY 2ND RESPONDENT TO FIRST WORK. EXT.P4(A): COPY OF REVISED ADMINISTATIVE SANCTION DTD. 22/07/2006 ISSUED BY THE 2ND RESPONDENT TO SECOND WORK. EXT.P5: COPY OF WORKSLIP IN RESPECT FIRST WORK. EXT.P5(A): COPY OF WORKSLIP IN RESPECT OF SECOND WORK. EXT.P6: COPY OF ORDER DTD. 15/11/2006 OF 2ND RESPONDENT AUTHORISING PAYMENT TO 1ST WORK. EXT.P6(A): COPY OF ORDER DTD. 13/8/2007 OF 2ND RESPONDENT AUTHORISING PAYMENT TO SECOND WORK. EXT.P7: COPY OF THE LETTER OF 2ND RESPONDENT TO 1ST RESPONDENT SEEKING THE PREPARATION OF PROJECT. EXT.P8: COPY OF LETTER OF 1ST RESPONDENT TO 2ND RESPONDENT REQUESTING THE LETTER TO RELEASE THE WITHHELD AMOUNT IN RESPECT OF 1ST WORK. EXT.P9: COPY OF LETTER DTD. 31/08/2007 OF THE PETITIONER TO THE 1ST RESPONDENT. EXT.P9(A): COPY OF ACKNOWLEDGEMENT. EXT.P10: COPY OF LETTER DTD. 20/07/2007 OF FIRST RESPONDENT TO THE SECOND RESPONDENT EXPLAINING THE CIRCUMSTANCES WARRANTING THE DEVIATION. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ KSS P.A.TO JUDGE P.N.RAVINDRAN, J. ====================================== W.P.(C)No.27670 of 2007 ====================================== Dated this the 9th day of February 2009 JUDGMENT The petitioner has filed this Writ Petition seeking disbursement of amounts withheld from the final bills presented by him after executing two works awarded by the Executive Engineer, Public Works Department, Roads Division, Kozhikode. The brief facts of the case are as follows:- 2. The work of constructing a culvert at Viruppil – Medical College Road in Kozhikode Corporation and improvements to Amoli-Kottappally road for a length of about 650 metres was proposed by the Hon'ble Member of the Kerala Legislative Assembly representing Kozhikode-2 constituency during the year 2005. Administrative sanction for the construction of the culvert at an estimated cost of Rs.4,00,000/- was granted by the District Collector, Kozhikode as per Ext.P1 proceedings dated 9.6.2005. Later by Ext.P4 proceedings dated 22.7.2006, the administrative sanction was revised to Rs.4,25,000/-. Similarly, administrative sanction for the work of W.P.(C)No.27670 of 2007 2 improvements to Amoli-Kottappally road at an estimated cost of Rs.5,00,000/- was granted by the District Collector as per Ext.P1 (a) proceedings dated 16.10.2005. Later by Ext.P4(a) proceedings dated 22.7.2006, the estimate was revised to Rs.5,50,000/-. After administrative sanction for the works was accorded, the Executive Engineer, PWD Roads Division invited tenders. The petitioner's tender was accepted and the work was awarded to him. In respect of the construction of the culvert, the formal agreement was entered into between the petitioner and the Executive Engineer on 13.2.2006 and in respect of the work of improvements to Amoli-Kottappally, the formal agreement was entered into on 22.6.2006. 3. While the work was in progress, the Hon’ble Member of the Kerala Legislative Assembly suggested certain additional works to be carried out, while improving Amoli-Kottappally road. The petitioner carried out the said work. During the construction of the culvert also, he had to carry out additional works and these were also carried out with the permission of the Executive Engineer and his subordinates who had supervised the work. After the works were completed, he submitted final bills. In W.P.(C)No.27670 of 2007 3 respect of the work of construction of the culvert at Virippil- Medicall College Road, he submitted a final bill for Rs.4,25,000/- and in respect of the work of improvements to Amoli-Kottappally road, he submitted a final bill for Rs.5,03,718/-. 4. The Executive Engineer forwarded the bills to the District Collector, Kozhikode for approval. By Ext.P6 proceedings dated 15.11.2006, the District Collector, Kozhikode accorded permission to pay the sum of Rs.3,92,934/- towards the final bill submitted by the petitioner for the work of constructing the culvert at Viruppil-Medical College Road, after deducting the sum of Rs.32,066/- . Similarly in respect of the work of improvements to Amoli-Kottappally road, by Ext.P6(a) proceedings dated 13.8.2007, the District Collector accorded sanction to pay the sum of Rs.3,84,815/- after deducting the sum of Rs.1,18,903/-. The petitioner accepted payment of the amounts sanctioned as per Ext.P6 and P6(a) as he was in need of funds and thereafter moved the Executive Engineer for payment of the balance. The Executive Engineer thereupon sent Ext.P8 letter to the District Collector, Kozhikode pointing out that during the construction of the culvert, extra items of work W.P.(C)No.27670 of 2007 4 had to be carried out and that the extra work was also done within the estimate limits. In respect of the work of improvements to the Amoli-Kottappally Road, the Executive Engineer sent Ext.P10 letter dated 20.7.2007 to the District Collector pointing out that the extra items of work were necessitated on account of the suggestions made by the Hon’ble Member of the Legislative Assembly, that even after the extra work was done, the work was completed within the estimate limits and that the extra items of work were necessary for satisfactory completion of the work. The District Collector did not however accord permission to pay the amounts withheld by him. This Writ Petition was thereupon filed, seeking a writ in the nature of mandamus commanding the District Collector, Kozhikode to pay the amounts withheld in Ext.P6 and P6(a) together with interest thereon at 10% per annum from the dates on which Ext.P6 and P6(a) were issued. 5. The petitioner contends that as the works were carried out within the estimate limits, though extra items of work were involved, the District Collector was not justified in withholding payment. The petitioner further contends that the extra items W.P.(C)No.27670 of 2007 5 of work had to be done as the work progressed in view of the suggestions made by the Hon’ble Member of the Legislative Assembly and also due to intervention of the public and that the District Collector ought to have in any view of the case accorded sanction for the extra work, as the work was completed within the estimate limits. The respondents have filed a counter affidavit contending inter alia that payment of a portion of the bill amount was withheld since the sanction of the District Collector had not been obtained for the extra items of work. 6. I have heard Sri.K.V.Pavithran, the learned counsel appearing for the petitioner and Smt.N.Sudha Devi, the learned Government Pleader appearing for the respondents. I have also considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that the petitioner has carried out the two works awarded to him and that the works were completed though extra items of works were involved within the estimate limits. However, certain amounts were withheld on the ground that the extra items of work carried out by the petitioner did not have administrative sanction. The respondents have no case that the petitioner has W.P.(C)No.27670 of 2007 6 not carried out the extra items of work. Ext.P6 discloses that though the entire work including the extra work was carried out with the estimate limits, the District Collector has withheld payment of the sum of Rs.32,066/- on the ground that the work of paving the bottom of the drain beneath the culvert with dry rubble was not an item of work for which he had given administrative sanction. Ext.P6(a) discloses that though the work of improving the Amoly-Kottappilly road was carried out and extra items of work had to be done, the District Collector has withheld payment of the sum of Rs.1,18,903/- for the reason that the work of packing the foundation bed of the retaining wall with dry rubble and the work of supplying and filling of quarry muck in the voids of the dry rubble packing, are not works for which he had given administrative sanction. In other words, the stand of the District Collector is that before the extra work was carried out, his administrative sanction was not obtained, thereby violating the provisions of the Kerala Financial Code. 7. From the pleadings and the materials on record, it is evident that payment of portions of the bill amount was W.P.(C)No.27670 of 2007 7 withheld on the ground that extra items of work were carried out without obtaining prior administrative sanction. It is not in dispute that the work was carried out within the estimated limits. It is also not in dispute that extra work had to be done in one case due to the intervention of the Hon’ble Member of the Legislative Assembly and in the other case on account of public pressure. Ext.P5 and P5(a) disclose that the first respondent and his subordinates had periodically inspected the works in question and that they had even approved the extra work. Ext.P5 discloses that dry rubble packing for the foundation bed of the retaining wall had to be done on the request of the Road Committee and the local M.L.A. The voids in the dry rubble packing also had to be filled with quarry muck. 8. In my opinion, as the work was carried out within the estimate limits and as the only reason for withholding payment is want of prior administrative sanction for the extra items of work, the District Collector ought to have granted administrative sanction for extra items of work, especially, having regard to the fact that no one has a case that extra work was not carried out or that the estimate limits have been exceeded by carrying out W.P.(C)No.27670 of 2007 8 the extra items of work. What the respondents put forward is a technical breach of the provisions of the Kerala Financial Code. That according to me is a defect which could have been rectified by granting retrospective sanction for the extra work or by ratifying the execution of the extra work. The respondents ought to have in my opinion, instead of driving the petitioner to this Court, sorted out the issue at their level, if necessary by obtaining governmental sanction. 9. In the view that I have taken, I dispose of the Writ Petition with a direction to the District Collector,Kozhikode to grant retrospective administration sanctioned for the extra items of work carried out by the petitioner or to ratify the execution of extra items of work. This shall be done, if necessary, after obtaining governmental sanction within four months from the date on which the petitioner produces a certified copy of this judgment before the District Collector. Payment shall be made within one month after administrative sanction is thus granted by the District Collector. If payment as directed is not made within the time limit stipulated above, the petitioner will be entitled to interest at the rate of 7.5% per annum on the W.P.(C)No.27670 of 2007 9 withheld amounts from the date of expiry of the period stipulated hereunder. P.N.RAVINDRAN, JUDGE css/