IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 17681 of 2008(E) -------------------------------------- PETITIONER: ------------------- GEOGY GEORGE , S/O. K.J.GEORGE, AGED 46 YEARS, CONTRACTOR, KOTTUKAPPALLY HOUSE, KALPETTY P.O., PALAKKAD-3. BY ADVS. MR.K.V.PAVITHRAN, MR.M.P. JAYANANDAN. RESPONDENTS: ------------------------ 1. SECRETARY,BLOCK PANCHAYATH, ATTAPPADY ,P.O.AGALI, PALAKKAD DISTRICT. 2. PROJECT DIRECTOR, DISTRICT POVERTY ALLEVIATION UNIT, PALAKKAD. 3. COMMISSIONER FOR RURAL DEVELOPMENT, L.M.S COMPOUND, PALAYAM, THIRUVANANTHAPURAM. 4. CHIEF GENERAL MANAGER, NATIONAL BANK FOR AGRICULTURE AND RURAL DEVELOPMENT (NABARD), THIRUVANANTHAPRUAM. 5. PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENTS, THIRUVANANTHAPURAM. R1 BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. MR. T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU, MR.A.R.NIMOD, R2,R3 & R5 BY GOVT. PLEADER SMT. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17681/2008-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AGREEMENT. EXT.P.2: COPY OF THE LETTER OF THE CONVENOR DLTC AND THE DECISION OF THE DLTC TO INCLUDE THE REQUIRED PROVISIONS FOR EARTHWORK. EXT.P.3: COPY OF THE `BLOCK PANCHAYATH RESOLUTION DIRECTING THE SUBMISSION OF REVISED ESTIMATE'. EXT.P.4: COPY OF THE REVISED ESTIMATE REPORT. EXT.P.5: COPY OF THE LETTER DTD. 06/03/2008 OF THE R.3. ADDRESSED TO THE R.2. DIRECTING TO SUBMIT REPORT AND RETURNING THE REVISED ESTIMATE. EXT.P.6: COPY OF THE SCRUTINY CERTIFICATE OF THE BILL OF THE WORK. EXT.P.7: COPY OF THE LETTER OF THE PETITIONER ADDRESSED TO THE R.5. EXT.P.7.A: COPY OF THE POSTAL ACKNOWLEDGMENT DTD. 11/04/2008 THERETO. EXT.P.8: COPY OF THE NEWS ITEM APPEARED IN MALAYALA MANORAMA DTD. 22/05/2008. EXT.P.9: COPY OF THE NOTICE DTD. 13/11/2008 ISSUED BY THE R.1. TO THE PETITIONER TERMINATING THE CONTRACT AT HIS RISK AND COST. EXT.P.10: COPY OF THE ENQUIRY REPORT OF THE STATE LEVEL TEAM. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE DECISION NO. 20 OF THE PANCHAYATH DTD. 19/09/2008. EXT.R1.B: COPY OF THE DECISION NO.3. OF THE PANCHAYATH DTD. 30/10/2008. EXT.R1.C: COPY OF THE LETTER DTD. 13/11/2008. EXT.R1.D: COPY OF THE DECISION NO.5 OF THE PANCHAYATH DTD. 29/12/2008. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J ------------------- W.P.(C).17681/2008 -------------------- Dated this the 3rd day of April, 2009 JUDGMENT Petitioner was awarded the work namely, improvements to Thottapadi-Chinnaparamba- Kallamala road in Palakkad District. Ext.P1 agreement was also executed. Several items of work are mentioned in the schedule and same was approved by the District Level Technical Committee. According to the petitioner, decision of the D.L.T.C was conveyed under Ext.P2. 2. Petitioner contends that there was a delay in handing over the land. In fact, the State Level Committee had conducted an inspection at the site and their findings were thereafter, conveyed by the Commissioner for Rural Development to the Secretary of the Panchayat, as per Ext.P5. Petitioner submits that he was unable to carry on further work till the period of completion on 31.3.2008, for no W.P.(C).17681/2008 2 fault of the petitioner. The Department failed to comply with the conditions in the matter of mobilization of the work, in contravention of condition No.8 and the payment of the Bill in terms of condition No.9, it is contended. 3. The fact remains that the work was not completed. There arose a dispute between the petitioner and the Panchayat as to who was responsible for the non completion of the work within the stipulated time. Ultimately, the Panchayat proceeded to terminate the petitioner's contract and also took a decision to re-tender the work as evidenced by Ext.P9, which is challenged in the writ petition. 4. Counter affidavit has been filed by the fist respondent Panchayat wherein they have taken up the stand that there was no delay in handing over the land and the petitioner has been paid for the work which he has done. There was undue delay in the execution of the work on the part of the W.P.(C).17681/2008 3 petitioner. Therefore, ultimately petitioner’s contract was terminated. Panchayat has re- tendered the work and the Panchayat is entitled to recover the differential cost from the petitioner, as permitted by the then original contract. 5. The crucial question would be as to who was responsible for the breach of contract, and this would involve a resolution of seriously disputed questions of fact. In my view, it can be done only by a Civil Court and it is upto the petitioner to approach the Civil Court in this regard. Petitioner submits that re-tendering of the work was at his risk and cost and the actions of the Panchayat had been frowned upon by the Sate level Committee, as evidenced by Ext.P10. Ext.P9 is in two parts. One is regarding cancellation of work and the other is regarding the decision of the Panchayat to re-tender the work at the risk and cost of the petitioner. In my view, it is open to the petitioner to challenge Ext.P9 before the Government invoking its power under Section 191 of the Panchayat Raj Act, at least W.P.(C).17681/2008 4 in so far as the decision of the Panchayat to recover the differential cost from the petitioner is concerned. This the petitioner may do and if a proper representation is filed before the Government, under Section 191 of the Act within two months from today, same shall be looked into and a decision taken thereon, as regards the decision of the Panchayat to recover the differential cost from the petitioner, within six months from the date of receipt of a copy of this judgment. 6. I make it clear that it is open to the petitioner to approach the Civil Court seeking appropriate reliefs consequent upon the termination of the contract and recovery of moneys due to him, for the work allegedly completed and not paid for so far. Subject to the above, writ petition is disposed of. V.GIRI, Judge mrcs