IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 20833 of 2008(E) -------------------------- PETITIONER: --------------- AJISH, S/O.JOSEPH, PANACHIYIL, PAYAMBHAILLI P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (TOURISM A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR AND CHAIRMAN, DISTRICT TOURISM PROMOTION COUNCIL (DTPC) WAYANAD, COLLECTORATE WAYANAD AT KALPETTA. 4. THE MEMBER SECRETARY, DISTRICT TOURISM PROMOTION COUNCIL, WAYANAD, COLLECTORATE WAYANAD AT KALPETTA. 5. THE BLOCK DEVELOPMENT OFFICER AND SECRETARY BLOCK PANCHAYATH, MANANTHAVADY. GOVERNMENT PLEADER SRI.K.SANAL KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.20833 OF 2008 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the GO (Rt) No.5620/2004 GAD Thiruvananthapuram, dated 4.8.2004. Ext.P2: True copy of the proceedings of the 3rd respondent under Order No.T2-422-04-DTPC dated 27.10.2004. Ext.P3: True copy of the estimate approved by the Superintendenting Engineer Rural Development, Thiruvananthapuram. Ext.P4: True copy of the agreement executed between the petitioner and Block Panchayath Secretary dated 2.2.2005. Ext.P5: True copy of the circular No,27582/p-3-99 dated 29.6.1999 issued by the 1st respondent. Ext.P6: True copy of the proceedings and order passed by the 3rd respondent dated 7.3.2005. Ext.P7: True copy of the proceedings of the 3rd respondent dated 16.12.2006. Ext.P8: True copy of the representation made by the petitioner to the 4th respondent dated 25.4.2007. Ext.P9: True copy of the report submitted by the Executive Engineer to the District Planning Officer dated 16.6.2007. Ext.P10: True copy of the representation submitted by the petitioner on 6.11.2007 through the local MLA, Sri, K.C Kunju Rehman. RESPONDENTS'S EXHIBITS: NIL C.T. RAVIKUMAR, J. --------------------------------------------- W.P.(C) NO. 20833 of 2008 --------------------------------------------- Dated this the 9th day of September, 2009 JUDGMENT Petitioner is the Convenor of the Beneficiary committee that was awarded with the patch and renewal BT work to the Kurukanmoola-KuruvaDweep Road in Thirunelli Grama Panchayath. The necessary administrative sanction for the works was granted as per Ext.P1. The technical sanction for the work was accorded by the Superintendent Engineer, Rural Development, Thiruvananthapuram and Ext.P3 estimate was approved. Subsequently, Ext.P4 agreement was executed between the petitioner as the Convenor of the Beneficiary committee and the Block Panchayath Secretary. The schedule of the work was incorporated in the said Ext.P4 agreement and it would show that an amount of Rs.1,76,765/- was separately set apart for tax and other unforeseen items in the first schedule and an amount of Rs.93,784/- has seen set apart for that purpose in the second schedule. It is the contention of the petitioner that after setting apart such a specific amount for tax and unforeseen items in the estimate itself further deductions should not have been made from the final bill amount without specifying on what account they are being made. On W.P.(C) NO.20833 of 2008 2 completion of the entire work, the petitioner had submitted the final bill for an amount of Rs.33,74,234/- for immediate payment. But only an amount of Rs.33,44,068/- was admitted for payment. It is from this amount further deduction towards tax elements and welfare fund contribution was effected. After completion of the major portion of the work, he had earlier submitted a bill as is evident from Ext.P6. It is obvious from Ext.P6 that the said bill amount was paid to the petitioner without proposing for any such deductions as has now been made at the time of payment towards the second bill vide Ext.P7. The deductions were so effected without any authority and contrary to the specific terms in the Ext.P4 agreement. It is the case of the petitioner that original total estimate of the said work is Rs.35,08,861/-. The amounts set apart towards tax and other unforeseen items totaling an amount of Rs.2,70,559/- was not disbursed and at the same time it is not made known whether the said amount was made use of for the purpose of payment towards tax and other unforeseen items. After keeping those aspects in oblique, in addition to the said amounts, a further deduction was effected from the final bill amount, it is contended. It is aggrieved by the aforesaid action that this writ petition has been filed. W.P.(C) NO.20833 of 2008 3 2. The third respondent has filed a counter affidavit. The factum of execution of the agreement as also execution of the work undertaken by the Beneficiary committee are not in dispute. Paragraph 5 therein would reveal that as contended by the petitioner an amount of 1,76,775/- was set apart for tax and unforeseen expenses from out of the total amount estimated and sanctioned for the purpose of implementation to the first phase viz., Rs.25,50,000/-. It also reveals the fact that an amount of Rs.93,784/- from out of the total amount sanctioned for the implementation of the second phase viz., Rs.10,58,000/- was set apart for meeting tax and unforeseen expenses. But, it not forthcoming as to whether the amount so set apart, were utilized for payment of taxes and other unforeseen expenses. When the specific amount was set apart for payment of tax and other unforeseen expenses and that amount was not disbursed to the petitioner, it is not known as to how further deductions can be effected from the bill amount for the purpose of meeting the tax amount and other unforeseen items. Apparently, it would amount to double deduction. In the context of the case it is relevant to note the specific contentions in paragraph 10 of the writ petition which reads thus: W.P.(C) NO.20833 of 2008 4 10. The Government had issued circular with respect to the preparation of estimates etc. in respect of the Development works to be executed through Beneficiary committee. It has been specifically provided that no amount towards contractors profit shall be included therein and the actual cost alone shall be spent. In such cases, the amount towards sales tax, purchases tax, and welfare fund was also considered and it was prescribed that such amount should be shown separately. That is why, provisions towards tax and unforeseen amounts have been included as separate item in the estimate and technical sanction. A true copy of the circular No.27582/p-3-99 dated 29.6.1999 issued by the 1st respondent is herewith produced marked as Exhibit P5. 3. The said averments were not controverted. The circumstances that compelled for effecting further deductions are not forthcoming in the counter affidavit and the said shortcoming is not surmounted assigning sustainable reasons, too. In paragraph 8 of the counter affidavit, a contention has been taken that Ext.P5 is not at all applicable in the case of District Tourism and Promotion Council works. At the same time, Ext.P9 would show that the provisions contained in Ext.P5 was made applicable in such works as well. In fact, it is clarificatory in nature. No reason was brought to my notice as to why provisions in Ext.P5 shall not be taken as applicable in W.P.(C) NO.20833 of 2008 5 the case of the works executed by the Beneficiary committee headed by the petitioner. Relying on condition No.4 in Ext.P4, it is contended by the learned Government Pleader that for the purpose of payment towards sales tax amounts could be recovered at the prevailing rate, for the unaccounted departmental materials supplied to the nominee, if any. The said clause reads thus:- 4. Sales tax will be recovered at the prevailing rate for the unaccounted Departmental materials supplies to the nominee if any. 4. It is obvious from the above extracted clause that recovery towards sales tax at the prevailing rate could be effected only if unaccounted departmental materials were supplied for the execution of the work in question. But, it is the specific case of the petitioner that no such materials were supplied by the department. That contention was also not seen controverted by the respondents in the counter affidavit. At the same time, the petitioner is also having a case that he had procured such materials from outside and at that point of time he had paid tax and therefore, there is no justification for making any further deductions towards tax. No explanation is W.P.(C) NO.20833 of 2008 6 forthcoming as to why no such deductions were effected from the bill amount when the petitioner submitted the first bill as is obvious from Ext.P6. These objections and deductions were effected only when the petitioner submitted the second bill. In the light of Exts.P4, P5, P6 and P9 and also in the absence of proper explanations to justify the action on the part of the respondents in effecting deductions from the bill amount I think, a proper consideration of the claims of the petitioner by a competent authority is called for. In the circumstances, it is only just and proper to direct the third respondent to re- consider the entire aspects afresh after affording an opportunity of hearing to the petitioner. Accordingly, the writ petition is disposed of with a direction to the third respondent to consider the entire issues involved in the matter and thereafter, to cause expeditious payment of the amount due in respect of the works executed by the Beneficiary committee in which the petitioner was the covenor. Till such time a proper decision is taken in the matter the respondents shall not divert the amount sanctioned in respect of Ext.P4 agreement and the same shall be retained by them in A/c No.2875 of the Indian Overseas Bank, Kalpetta North. To enable the third respondent to take a proper decision in the matter the petitioner may submit a detailed W.P.(C) NO.20833 of 2008 7 representation in that behalf within a period of one month from today. In the event of receipt of such a representation, the third respondent and shall consider all the aspects of the matter and pass appropriate orders as expeditiously as possible and at any rate, within a period of two months thereafter. The Writ Petition is disposed of accordingly. (C.T. RAVIKUMAR) JUDGE spc