IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 RSA.No. 505 of 2004() --------------------- AS.138/2000 of I ADDL. DISTRICT COURT, PALAKKAD OS.326/1997 of MUNSIFF COURT, CHITTUR .................... APPELLANTS/RESPONDENT/PLAINTIFF -------------------------------------------------- HABEEBULLA S/O. MUHAMMED YOUSUF, RAWTHER, SHAHEEDA MANZIL, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): APPELLANTS/DEFENDANTS ------------------------------------------------------------------ 1. THE DISTRICT COLLECTOR, REPRESENTED KERALA GOVERNMENT, CIVIL LANE, PALAKKAD. 2. THE TAHASILDAR, TALUK OFFICER, THITTUR. GOVERNMENT PLEADER SMT.ANIE PAUL FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/ 7 / 2011 THE COURT ON 19/07/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 505 OF 2004 =========================== Dated this the 19th day of July,2011 JUDGMENT Plaintiff in O.S.326/1997 on the file of Munsiff Court, Chittur is the appellant. Respondents are the defendants. The suit was filed for a declaration that appellant is not liable to pay Rs.69,050/- as demanded by the respondents by the notice and for a permanent prohibitory injunction restraining the respondents from realising the amount. Appellant admittedly executed Ext.B1 agreement in his capacity as the convenor of the construction committee for the construction of Chungathukulam pond of Nalleppilly Village of Chittur Taluk. According to appellant, the work was completed and though he received Rs.69,050/- he spent not only that amount but Rs.20,950/- in excess and therefore he is RSA No.505/2004 2 entitled to that amount. When he sent a notice under section 80 of Code of Civil Procedure demanding that amount, Ext.A1 reply was sent contending that Rs.69,050/- received by the appellant is to be repaid. Appellant contended that respondents are not entitled to claim that amount. Appellant contended that when appellant is entitled to get Rs.20,950/- additionally spent by him, he is not liable to pay the amount claimed under Ext.A1 and therefore he is entitled to get a decree for a declaration that he is not liable to repay that amount. Suit was resisted by the respondents admitting that appellant was entrusted with the work under RLEGP Scheme and as per Ext.B1 agreement appellant had to complete the work on or before 31.5.1987 and inspite of the notice directing the appellant to produce the records showing the expenditure he did not produce any document. It was contended that appellant had failed to remove the waste and other filthy materials from the pond as provided under the RSA No.505/2004 3 agreement and as he has not produced any record to show the amount spent, and he violated the conditions 16 to 18 of Ext.B1 agreement and he is liable to return the amount received and he is liable to repay the amount as stated in Ext.A1 and he is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1 and 2, DW1, Exts.A1 and B1 to B9 granted a decree declaring that appellant is not liable to repay Rs.69,050/- and restrained the respondents from realising the amount under the revenue recovery proceedings. Respondents challenged the judgment before District Court, Palakkad in A.S.138/2000. Learned Additional District Judge on reappreciation of the evidence found that under Ext.B1 agreement appellant is bound to maintain muster roll and other records and also to produce the same and inspite of notice appellant did not produce them and there is no evidence to prove that appellant had carried out the work as claimed by him and therefore held that respondents are entitled to RSA No.505/2004 4 realise the amount received by the appellant and hence set aside the decree passed by the trial court and dismissed the suit. It is challenged in the second appeal. 3. The appeal was admitted formulating the following substantial questions of law. 1. Whether on the facts and circumstances of the case, the finding of the lower appellate court that the 2nd respondent is entitled to recover the entire amount advanced to the appellant for completion of work under Ext.B1 is legal and proper in view of the 6th clause in Ext.B1 which enjoins that the appellant who is the convenor of the committee is entitled to get the cost of whatever work done even in case the 2nd RSA No.505/2004 5 respondent withdraws from the work. ii. Whether in the facts and circumstances of the case, the lower appellate court was justified in reversing the decree passed by the trial court granting declaration that the appellant is not liable to return the entire amount advanced is legal and proper? 4. Ext.B1 is admittedly the agreement executed by the appellant for constructing Chungathukulam pond in survey No.85 of Nalleppilly Village. Ext.B1 shows that appellant executed the agreement as the Convenor of the Construction Committee. Under Ext.B1 appellant agreed to execute the work at the rate specified subject to the Government instructions communicated from time to time, in compliance with the Special Conditions mentioned in RSA No.505/2004 6 Annexure I. Under clause 2 the cost of the materials to be paid was limited to 40% eventhough the cost exceeds the said percentage. Payment for the work shall be made by the Tahsildar, Chittur. Under clause 2 of Annexure I special conditions, for scheduled items of works when incidental charges are required but not specifically stated in the estimate, it is to be understood that the rate noted in the estimate shall cover such charges also and no extra on account of such incidental charges will be paid. Ext.B7 the estimate of the work establishes that Rs.33,330/- was estimated for the earth work excavation in ordinary soil and Rs.52,974/- for earth work excavation in hard soil and including for the unforseen items the total estimate was Rs.1,10,000/-. Ext.B1 agreement shows that clause 17 and 18 provide the selection of labourers and maintenance of muster roll. Clause 17 and 18 read:- 17. Convenor shall engage local labourers including marginal RSA No.505/2004 7 farmers for doing the works and muster roll of all such workers engaged shall be prepared and kept at work site with attendance noted every day and produce for inspection by Tahsildar/Dy.Tahsildar, Revenue Inspector or any other Technical and administrative officers responsible for inspection and supervision of the work. 18. Muster roll kept on site shall contain names of woman workers and adolescents engaged for the work separately. A separate column also to be provided for SC/ST workers. Therefore the appellant is bound to maintain a muster roll of the workers engaged and in the muster roll the details of the workers apart from their name whether they are adolescents or not and RSA No.505/2004 8 whether the workers belong to SC/ST are also to be recorded. The muster roll along with the attendance noted every day shall be produced for inspection before the Tahsildar. Clause 6 deals with the right of the Tahsildar to abandon the work and clause 7 the liability of the appellant. Clause 6 and 7 are as follows:- 6.The Tahsildar, shall reserve the right to abandon the work at any stage if he finds such a course necessary and the convenor will be paid only for the finished items of work. 7. All sums found due to the Government under or by virtue of the present contract shall be recoverable from the Convenor, and his properties movable and immovable under the provisions of the Revenue RSA No.505/2004 9 Recovery Act, for the time being as though the same were arrears of revenue or in any other manner at the Government may deem fit. 5. The argument of the learned counsel appearing for the appellant is that as Rs.69,050/- was paid by the Tahsildar and Ext.B1 does not provide for payment of advance, it is to be taken that the payment was for the work done and therefore it is not an advance amount and hence the appellant is not entitled to pay back the money received. True, Ext.B1 does not specifically provide for payment of advance amount. clause 16 provides for payment at the rate approved by the government and subject to check measurement at the time of full payment. Clause 16 of Ext.B1 reads:- Payment towards labour charges on account of the works carried out shall be made to the Convenor at the RSA No.505/2004 10 rate approved by Govt. from time to time, and as provided in the agreement. Final payment will be made subject to check measurement. 6. If the argument of the learned counsel appearing for the appellant is to be accepted, it is to be taken that before the payment of the amount of Rs.69,050/- respondents are satisfied with the quantum of work carried out and the payment was made. If such satisfaction is to be recorded or payment is to be made, appellant is bound to maintain the muster roll. Even in the plaint appellant has no case that he has maintained the muster roll and the attendance register and made them available them to the Tahsildar and then the payment was made for the work carried out. As seen from Ext.B2 till 17.4.1987 appellant claimed only that the work for Rs.12,000/- was carried out and materials for Rs.7000/- was collected. In the RSA No.505/2004 11 plaint there is no mention about the stoppage of work intimated to the Tahsildar under Ext.B2. There was no contention that Subsequent to Ext.B2 the District Collector had intervened or eventhough the District Collector had not intervened, the dispute as otherwise settled and the work was carried out. In such circumstances it can only be found that the appellant had not carried out the work as claimed by him. When there is no evidence to prove that appellant had maintained muster roll and made them available to the officials, payment of Rs.69,050/- can never be treated as payment for the work executed by the appellant as claimed by him. Learned counsel pointed out that DW1 has stated that the amount was paid after verifying the records. But appellant himself brought out by cross examining DW1 that he has no personal knowledge with regard to the work carried out. Therefore that admission will not help the appellant to prove that the amount was paid for the work executed. RSA No.505/2004 12 7. When the appellant has no case that pursuant to Ext.B3 notice record showing the details of the work carried out was produced before the Tahsildar. Hence appellant is not entitled to contend that he is entitled to be paid for the work carried out by him. No payment could be made without making available the details of the work carried out. In spite of the allegation in the plaint that appellant has completed the work and spent Rs.20,950/- more than what was paid to him, he did not produce any scrap of paper or any other evidence to show the quantum of work allegedly executed. 8. True, evidence would prove that appellant has executed some work. He is entitled to get payment for the said work. But no evidence was adduced to find out the quantum of work executed. It is to be born in mind that though a notice was sent by the appellant under section 80 of Code of Civil Procedure threatening institution of a suit for realisation of Rs.20,950/- allegedly due to RSA No.505/2004 13 him, no suit was instituted till this day. In fact Ext.A1 is not a notice demanding the amount received by the appellant. It is a reply sent to the Section 80 notice sent by the appellant. Appellant did not seek a decree to fix the amount due. Instead a decree was sought to the effect that he is not liable to pay any amount. In such circumstances, appellant is not entitled to the decree for declaration that he is not liable to pay the amount, as rightly found by the first appellate court. Though learned counsel appearing for the appellant vehemently argued that without quantifying the actual amount due the respondents are not entitled to realise the amount from the appellant, when appellant did not produce any material to determine the amount due to him and the suit itself was filed after receipt of Ext.A1, reply sent by the respondents to a notice sent by the appellant under section 80 of the Code of Civil Procedure threatening the institution of the suit for realisation of Rs.20,950/-, and appellant is RSA No.505/2004 14 liable to repay the amount received by him in excess of the amount for the work executed. Appellant is not entitled to the decree for declaration or injunction. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006