IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 WP(C).No. 7813 of 2006(E) ------------------------- PETITIONER(S): --------------- P.SANTHOSH KUMAR, S/O.KRISHNAN KUTTY, PULIKKATHARA, VANIAMBALAM PO, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): --------------- 1. THE CONSERVATOR OF FOREST AND CUSTODIAN OF VESTED FORESTS, OLAVAKKODE CIRCLE, OLAVAKKODE, PALAKKAD. 2. THE DIVISIONAL FOREST OFFICER, MANNARKKAD DIVISION, MANANRKKAD. 3. THE RANGE OFFICER, MANNARKKAD RANGE, MANNARKKADU. GOVERNMENT PLEADER (FOREST) SRI.P.M.POULOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 7813/2006 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER OF R2 DTD.14.3.2005. P2. COPY OF THE ESTIMATE. P3. COPY OF THE PETITION DTD.19.8.2005. P4. COPY OF THE POSTAL RECEIPTS. RESPONDENT(S)' EXHIBITS: R2A. COPY OF THE LETTER DTD.7.1.2004. B. COPY OF THE REQUEST DTD.5.1.2005. C. COPY OF THE REPORT OF THE ACCOUNTANT GENERAL DTD.5.5.2005. D. COPY OF THE LETTER DTD.13.12.2005. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 7813 of 2006 ================== Dated this the 28th day of September, 2011 J U D G M E N T The petitioner was an approved convenor selected by the respondents for 2004-05 and 2005-06 for execution of forestry works like felling of trees. As per the agreement executed between the petitioner and the respondents, the petitioner was to be paid for felling of trees at the rate of ` 1,440/- per 100 trees. The petitioner carried out the work at that rate. According to the petitioner, the labourers employed by the petitioner were also paid correspondingly. When the final bill was submitted, an amount of ` 51,670/- was withheld and only the balance amount was paid. When the petitioner took objections to the same, on the recommendation of the concerned Forest Ranger, the amount withheld was released to the petitioner. Subsequently, the petitioner submitted a final bill with respect to another work, from which, an amount of ` 51,670/- was withheld on the ground that amount was over paid in respect of the earlier work. The petitioner is challenging the same seeking the following reliefs: “i) a writ of mandamus directing the respondents to release the amount of Rs. 51,670/- deducted from the final bill submitted by the petitioner. ii) a writ of mandamus directing the 1st respondent to consider and pass orders on Exhibit P3 representation submitted by the petitioner forthwith.” 2. According to the petitioner, after having entered into an agreement with the petitioner at the rate of ` 1,440/- per 100 trees, w.p.c.7813/06 2 the respondents cannot unilaterally reduce the rate and withhold payment from the final bill in respect of another work. 3. The respondents have filed a counter affidavit, wherein they have produced Ext.R2(d) communication issued to the petitioner on Ext.P3 representation filed by him, wherein it has been held that the rate of ` 1440/- per 100 trees was agreed by mistake and the rate applicable was only ` 420/- per 100 trees. That was pointed out by the Accountant General in the audit objection and that is why the amount has been recovered from the petitioner's future bills. The learned Government Pleader points out that the petitioner has not challenged Ext.R2(d). 4. I have considered the rival contentions in detail. 5. I do not think that non-challenge of Ext.R2(d) communication will fatly affect the writ petition insofar as the petitioner has filed this writ petition for disbursal of the amount, even if Ext.R2(d) has been served on the petitioner before the filing of this writ petition. Therefore, this Court can certainly look into the correctness of the reasons stated in Ext.R2(d). Admittedly, an agreement has been entered into between the petitioner and the respondents for doing the work of felling of trees at the rate of ` 1440/- per 100 trees. The respondents have no case that the petitioner is in anyway guilty of any misdemeanor in fixing the rate w.p.c.7813/06 3 even assuming that the wrong rate has been fixed. The petitioner has carried out that work. The petitioner has arranged his affairs in the matter of execution of the work, like paying labourers etc. on the basis of that rate. If, in fixing of that rate, any officer of the respondents is responsible, whether it is a mistake or not, only that officer can be made responsible and not the petitioner insofar as there is no allegation of collusion in the matter by the petitioner. Perhaps if the petitioner had been made aware that the rate is only as stated in Ext.R2(d) prior to execution of the work, the petitioner may not have undertaken the work itself. After having entered into an agreement, the respondents cannot unilaterally change the conditions of the agreement. Therefore, I am not satisfied that the respondents can recover the amount of ` 51,670/- from the future bills of the petitioner, which has been done in this case. Accordingly, this writ petition is allowed and the respondents are directed to pay the amount of ` 51,670/- withheld from the petitioner's future bills, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.7813/06 4