IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 13623 of 2007(V) -------------------------------------- PETITIONER(S): --------------------- N. SHYLESH KUMAR, AGED 34 YEARS, S/O. M.G.NARAYANAN NAIR, KIZHUPPILLY HOUSE, EDATHALA NORTH P.O., ALUVA - 683 564. BY ADV. MR.PREMCHAND R.NAIR RESPONDENT(S): ------------------------- 1. ASSISTANT GENERAL MANAGER,(CABLE PLANNING), OFFICE OF THE PGMT, BSNL, DEVASWOM BOARD BUILDING, THRISSUR. 2. DIVISIONAL ENGINEER, B.S.N.L., TRANSMISSION INSTALLATION, PATTALAM ROAD, EXCHANGE, THRISSUR. 3. SUB DIVISIONAL ENGINEER, B.S.N.L., OFFICE OF THE TRANSMISSION INSTALLATION MUNICIPAL BUILDING COMPLEX, THRISSUR. 4. EXECUTIVE ENGINEER, NATIONAL HIGHWAY ROAD DIVISION, KODUNGALLOOR. R4 BY GOVERNMENT PLEADER SMT.N. SUDHA DEVI. R1 TO R3 BY ADV. MR.C.S.RAMANATHAN, SC, BSNL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13623/2007-V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE WORK ORDER NO.T(I)6064 D (b)/05-06/1 DATED 25/03/2006. EXT.P2: COPY OF THE BILL PASSED ON 03/08/2006. EXT.P3: COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 29/03/2007. EXT.P4: COPY OF THE RELEVANT PAGE OF BID DOCUMENT EVIDENCING CLAUSE 11/02/2002. EXT.P5: COPY OF THE RELEVANT PAGE OF BID DOCUMENT EVIDENCING CLAUSE 08/02/2006. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE APPROVED RATE AS AGREED BETWEEN THE PETITIONER AND THE RESPONDENT. EXT.R1(b): COPY OF THE NOTICE DATED 01/05/2006 SEND TO THE PETITIONER. EXT.R1(c): COPY OF THE LETTER DATED 03/08/2006 OF THE PETITIONER. EXT.R1(d): COPY OF THE RELEVANT PORTION OF THE BID DOCUMENT. EXT.R1(e): COPY OF THE BOND GIVEN BY THE BSNL. EXT.R1(f): COPY OF THE PERMISSION OF THE NATIONAL HIGHWAY DEPARTMENT. EXT.R1(g): COPY OF THE LETTER DATED 02/02/2007. //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 13623 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 9th June, 2009. J U D G M E N T The petitioner is a contractor who undertook the work of laying underground cables in Talikulam GSH site for BSNL. The petitioner claims to have completed the work on 21-7-2006 and submitted a bill before the 1st respondent, which was passed on 3-8-2006. Thereafter, the petitioner was issued with Ext. P3 letter saying that the Engineer of the National Highway Division, Kodungaloor has requested to remit an amount of Rs. 51,720/- towards restoration charges for the damages occurred while executing the work in Thalikulam GSH site, and that since, as per the letter of the petitioner dated 3-8-2006, he has agreed to remit the amount towards restoration charges, the said amount would be recovered from the petitioner's bill. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) Issue a writ of mandamus or such other writ, order or direction directing the 1st respondent not to deduct Rs.51,720/- from the present bill submitted by the petitioner; (ii) Issue a writ of mandamus or such other writ, order or direction directing the 1st respondent to make proper enquiry and clarification on the claim put forward by National Highway; (iii) Issue a writ of mandamus directing the 2nd respondent to produce the site order book of the Talikkulam GSM OF cable work, which was completed by the petitioner as per work order No. T(I)/ 6064D(b)/05-06/1 dtd. 25.3.2006; (iv) Direct the 4th respondent to produce the records leading to the qualification of the damages @ Rs.51720/- in respect of KN 381/100 at Thalikulam and also to re-assess the actual damage if any caused to the road at KM 381/100 at Thalikkulam and to re- quantify the damages accordingly.” 2. At the time when the bill amount had not been paid, this Court by order dated 1-5-2007 passed the following interim order: W.P.C. No. 13623/07 -: 2 :- “This petition is filed praying for a direction to respondents 1 to 3 to disburse the bill amount of Rs. 10,95,679.16. It is now complained by the petitioner that during the pendency of the writ petition, although the bill amount was ready for payment, taking advantage of the fact that this Court is seized of the matter, payment was not effected. After hearing counsel on either side, I direct respondents 1 to 3 to release amounts that are due to the petitioner after deducting amount, if any, that are due from the petitioner including the amount mentioned in Ext. P3. Amount shall be released to the petitioner within two weeks from the date of production of this order.” It is now admitted that except the amount of Rs. 51,720/- mentioned in Ext. P3, all other amounts due to the petitioner have been fully paid. Therefore, I have to decide only on the question as to the validity of the recovery of the said amount from the petitioner. 2. In Ext. P3, it is stated that the petitioner had, by letter dated 3-8-2006, agreed to remit the claims to National Highway authorities. Of course, the petitioner would now contend that he was forced to write that letter in the hope of getting payment of the bill amount. This is a disputed question of fact. The petitioner also contends that the damages have not been assessed after notice to him. When the petitioner himself has agreed to remit the claims to National Highway authorities, I cannot now decide as to whether that contention is correct or not. For deciding these disputes, evidence would be necessary, which can be taken only in a suit filed for that purpose. Therefore, without prejudice to the right of the petitioner to file a suit for recovery of the said amount if the same is due to him, if he can still do so at this distance of time, this writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/