IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(C).No. 36670 of 2008(M) PETITIONER: --------------- R.V. JOSEPH, RATHAPULLIYIL, P.O. KATTAYAR, VELLAMUNDA, WAYANAD. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT IN THE DEPARTMENT OF IRRIGATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER, PROJECT-I, IRRIGATION DEPARTMENT, CALICUT. 3. SUPERINTENDENT ENGINEER, PROJECT CIRCLE, IRRIGATION DEPARTMENT, KANNUR. 4. EXECUTIVE ENGINEER, IRRIGATION DEPARTMENT, BANASURASAGAR PROJECT DIVISION, PADINJARATHARA, WAYANAD. 5. ASSISTANT EXECUTIVE ENGINEER, BANASURASAGAR PROJECT SUB DIVISION I, IRRIGATION DEPARTMENT, PADINJARATHARA, WAYANADU. 6. ASSISTANT EXECUTIVE ENGINEER, BANASURASAGAR PROJECT SUB DIVISION II, IRRIGATION DEPARTMENT, VELLAMUNDA, WAYANAD. R1 TO R6 BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE WORK ORDER ALONG WITH AGREEMENT SCHEDULE ISSUED BY THE FIFTH RESPONDENT IN RELATION TO CHAIN 990 MTR-1160 MTR. EXT.P2 TRUE COPY OF THE WORK ORDER ALONG WITH AGREEMENT SCHEDULE ISSUED BY THE FIFTH RESPONDENT IN RELATION TO CHAIN 7060 MTR-7220 MTR. EXT.P3 TRUE COPY OF THE CONTRACT CERTIFICATE AND FINAL BILL IN RELATION TO CHAIN 990 MTR-1160 MTR ISSUED BY THE FIFTH RESPONDENT. EXT.P4 TRUE COPY OF THE CONTRACT CERTIFICATE AND FINAL BILL IN RELATION TO CHAIN 7060 MTR-7220 MTR ISSUED BY THE FIFTH RESPONDENT. EXT.P5 TRUE COPY OF THE CONTRACT CERTIFICATE ISSUED IN RELATION TO THE SUPPLYING AND PLANTING OF BOUNDARY STONES ALONG VENNIYODE DISTRIBUTORY. EXT.P6 TRUE COPY OF THE GO(Rt) NO.2089/2006/FIN DATED 22.3.2006 ALONG WITH THE LETTER OF CREDIT AND THE LIST OF CONTRACTORS, WHOSE AMOUNTS ARE DIRECTED TO BE DISBURSED. EXT.P7 TRUE COPY OF THE DETAILS OF PENDING BILLS OF THE PETITIONER WITHHELD BY THE FOURTH RESPONDENT. EXT.P8 TRUE COPY OF THE LETTER OF CONSENT EXECUTED BY THE PETITIONER IN FAVOUR OF THE FOURTH RESPONDENT. EXT.P9 TRUE COPY OF THE LETTER DATED 27.6.2008 SENT BY THE PETITIONER TO THE FOURTH RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 36670 OF 2008 ------------------------------------------------------ Dated this the 20th day of August, 2010 JUDGMENT The petitioner is a 'B' class contractor. He was awarded six numbers of trial boring works in Madakkunnu distributory connected with Banasurasagar Irrigation Project. They are: “(i) Trial boring along madakunnu distributory from Ch:470 to 690 m. (ii) Trial boring along madakunnu distributory from Ch: 990 to 160 m. (iii) Trial boring along madakunnu distributory from Ch:1140 to 1620 m. (iv) Trial boring along madakunnu distributory from Ch:5410 to 5580 m. (v) Trial boring along madakunnu distributory from Ch:7060 to 7220 m. (vi) Trial boring along madakunnu distributory from Ch:7305 to 7490.” The petitioner was also awarded five numbers of trial boring works in Padinharathara Branch Canal connected with Banasurasagar Irrigation Project. They are: W.P.(C) NO.36670 OF 2008 :: 2 :: “(i) Trial boring along Padinjarathara Branch canal from Ch: 4590 to 4715. (ii) Trial boring along Padinjarathara Branch Canal from Ch: 5805 to 5975. (iii) Trial boring along Padinjarathara Branch Canal from Ch:8100 to 8280. (iv) Trial boring along Padinjarathara Branch Canal from Ch:8290 to 8480. (v) Trial boring along Padinjarathara Branch Canal from Ch:8490 to 8570.” 2. There is no dispute that the above works were completed in the year 2004. Measurements of the work were taken. There is no dispute about the quality or quantity of the work. The bills were submitted for payment. However, amounts were disbursed only in respect of two works undertaken in Madakunnu distributory. 3. The amounts due to the petitioner in respect of the other works were withheld. No reasons were communicated to the petitioner as to why the amounts due to him were withheld. The petitioner was in the dark as to why the amounts were not paid to him. 4. The petitioner submitted Ext.P9 representation dated W.P.(C) NO.36670 OF 2008 :: 3 :: 27.6.2008 to the Executive Engineer, B.S.P. Division, Padinjarathara, requesting for disbursement of the amounts due to him. In Ext.P9, the petitioner stated that he was not communicated any reason as to why the amounts were not paid. He also made a request that if there are sufficient reasons for not paying the amount, the reasons may be communicated. There was no reply to Ext.P9. 5. The reliefs prayed for in the Writ Petition are the following: “(i) issue a writ in the nature of mandamus or other appropriate writ, direction or order directing respondents 4 to 6 to disburse amounts withheld as per Exhibit P7 to the petitioner within such time as may be fixed by this Honourable Court; (ii) issue a writ in the nature of mandamus or other appropriate writ, direction or order directing respondents 4 to 6 to disburse the amount of Rs.62,638/- due to the petitioner for the supply and planting of boundary stones along Venniyode distributory for which letter of intent is issued as per Exhibit P6 forthwith; (iii) issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding the 4th respondent to consider and W.P.(C) NO.36670 OF 2008 :: 4 :: pass orders on Exhibit P9 within such time as may be fixed by this Honourable Court; and (iv) issue such other writ, direction or order as deemed fit.” 6. The fourth respondent has filed a counter affidavit. In the counter affidavit, there is no dispute that the works were satisfactorily completed. There is practically no dispute that amounts are due to the petitioner. Regarding the bill amount also there is no dispute. However, it is stated in the counter affidavit thus: “The payment due to the work Banasura Sagar Project supplying & Planting Boundary stones for Venniyode Distributory from Ch: 0 to 2920 m had been included in the details of pending bills and submitted to the finance department through 2nd respondent for want of Letter of Credit on 07.06.2005. The amount for this work was included in the order as Ext.P6. But the payment was not effected as the contractor certificate (final bill) of this work was kept along with the bills of Trial boring works of the same contractor which were pledged as security against effected payment. The amount due to the work as per Ext.P5 is again submitted to theFinance Department through EMLI on 28.10.08 (bill I.D.No.2444) as the first bill pending payment under W.P.(C) NO.36670 OF 2008 :: 5 :: the office of the 4th respondent. Hence this payment can be effected soon after getting the Letter of Credit from the Finance Department. 8. 6 number of Trial boring works in Madakunnu distributory, 5 number of Trial boring works in Padinharathara branch canal and supplying & planting boundary stone for Venniyode distributory from Ch / to 2920 m were carried out by the petitioner and the final bills were submitted by the 5th & 6th respondents to the office of the 4th respondent. But the Financial Inspection (MT) wing conducted an inspection on 13.7.04 & 14.7.04 of the work of Trial boring works in Madakunnu distributory and recommended to withheld the payment until further orders.” 7. It is also stated in the counter affidavit that the letter of credit for releasing payment of six works in Madakunnu Distributory was received in the office of the fourth respondent on 26.7.2005. However, the payments were not made for the following reason stated in paragraph 8 of the counter, which reads as follows: “In the light of direction from the Finance Inspection Wing, the 4th respondent was not in a position to release the amount to the petitioner.” W.P.(C) NO.36670 OF 2008 :: 6 :: However, on the request of the petitioner, the amounts due to four works in Madakunnu Distributory were released on a bond executed by the petitioner for an equal amount from the pending bills due to the petitioner for the five works mentioned in paragraph 8 of the counter. 8. In paragraph 11 of the counter affidavit, it is stated thus: “11. As per the recommendations of the Finance Inspection Wing conducted on 13.7.2004 & 14.7.2004, the payment to the trial boring in Madakunnu distributory shall be withheld until further orders. The decision is not finalized. Hence the work mentioned in the Ext.P7 as serial Nos.1 & 2 are pending for payment. The work serially numbered from 3 to 7 in the Ext.P7 are included in the bond executed by the petitioner as Ext.P8. Hence the payment is withheld for want of final decision. As far as serial No.8 in Ext.P7 is concerned the amount due to the petitioner has been submitted to the finance department through EMLI for want of Letter of credit. This is the first bill pending under the office of the 4th respondent. Hence the payment can be effected soon after getting the letter of credit from the finance department.” W.P.(C) NO.36670 OF 2008 :: 7 :: 9. It is submitted by the learned Government Pleader that the payment in respect of Sl.No.8 in Ext.P7 was made to the petitioner after filing the Writ Petition. 10. This is not a case where there is any dispute regarding the amount payable to the petitioner. There is also no dispute that the petitioner had completed the work as per the specifications. There is no complaint that the quality of the work done by the petitioner was not up to the standard. There is no dispute regarding the measurement. There is no dispute regarding the rate at which the amount was computed. The only reason stated for withholding payment is that the Financial Inspection Wing had made recommendations in 2004 to withhold the payment. Nothing is stated in the counter affidavit or in any communication for what reason the amount was withheld or what was wrong on the part of the contractor. Even after the direction to withhold payment made in 2004, nothing transpired except payment in respect of the one item of work after filing the Writ Petition and payment in respect of some other works on executing a bond. In the facts and circumstances, it is not necessary to direct the fourth respondent to dispose of Ext.P9. If such a direction is issued at this point of time, after about one and W.P.(C) NO.36670 OF 2008 :: 8 :: a half years of the date of filing of the Writ Petition, the result would be injustice to the petitioner. One of the prayers in the Writ Petition was for a direction to the fourth respondent to dispose of Ext.P9. Even after receiving the notice in the Writ Petition and even after filing the counter affidavit in February 2009, the fourth respondent has not chosen to dispose of Ext.P9. I am of the view that even if a direction is issued to dispose of Ext.P9 representation, no useful purpose would be served. In these circumstances, I am inclined to grant the reliefs prayed for, to the petitioner. 11. Accordingly, there will be a direction to respondents 4 to 6 to disburse to the petitioner the amounts withheld as per Ext.P7 except in respect of the items for which amounts were disbursed. It is not necessary to grant relief No.2 as the amount was disbursed subsequent to the filing of the Writ Petition. The amount due to the petitioner as aforesaid shall be paid within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed in part as above. (K.T.SANKARAN) Judge ahz/