IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WA.No. 8 of 2011() ------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.29303/2010 Dated 06/10/2010 .................... APPELLANT(S): --------------------- MANJU M. ISMAIL, AGED 39 YEARS, S/O.P.P.M. ISMAIL, POWATH HOUSE, MANDIRAM.P.O, RANNI. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 685 001. 2. RANNI BLOCK PANCHAYATH, REPRESENTED BY SECRETARY, RANNI - 689 672. 3. SECRETARY, RANNI BLOCK PANCHAYATH, RANNI - 689 672. 4. BLOCK DEVELOPMENT OFFICER, RANNI - 689 672. 5. ASSISTANT EXECUTIVE ENGINEER, LSGD SUB DIVISION, RANNI BLOCK PANCHAYATH, RANNI - 689 672. ADV. SRI.S.MUHAMMED HANEEFF FOR R5 R1 AND R4 BY SR.GOVT.PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR, Ag. CJ. & P.S.GOPINATHAN, J ---------------------------------------------- W.A.No. 8 of 2011 ---------------------------------------------- Dated this the 31st day of October, 2011 JUDGMENT Ramachandran Nair, Ag.CJ. The appeal is filed against the judgment of the learned Single Judge declining to grant the relief prayed for by the appellant, i.e., to direct the Block Panchayat to measure the work done by him pursuant to the contract awarded and then to make payment for the works so done. In the first round of litigation, this Court directed the Block Panchayat to consider appellant's request. The Block Development Officer, who happens to be the Secretary of the Block Panchayat, pursuant to the judgment, issued orders stating that the appellant cannot be made payment, because there is a counter claim by the Block Panchayat against the appellant for breach of contract, because under the terms of contract, for breach of contract, the awarder can cancel the contract and retender the work at risk and cost of the appellant. 2. We have heard counsel for the appellant and the Standing Counsel for the Block Panchayat, who took notice on admission and argued the matter. WA.8/11 2 3. While the appellant's case is that for the work executed he is not made payment based on his representation, Standing Counsel for the Block Panchayat submitted that an advance of Rs.3,18,550/- was paid as on 1.1.2008. According to him, the repair and maintenance work of road awarded in 2005 should have been completed in 2006. But, even after five years, the appellant has not completed the work. Counsel for the appellant has referred to the representation submitted by him to the Block Development Officer/Secretary of the Block Panchayat stating the construction work done by him like protective wall constructed even before leveling the roads. 4. After hearing both sides, what we feel is that the respondents' stand that in view of the counter claim, the payment cannot be made for the work executed by the appellant is absolutely tenable. However, even for determining loss caused by the appellant to the Block Panchayat, the Block Panchayat is bound to measure the work and evaluate it, the value of which is entitled to be credited in the account of the appellant, though not to be paid before settling damages or loss to be recovered by the Panchayat. In view of the fact that the work retendered is after five years, there is bound to be escalation of contract value WA.8/11 3 leading to counter claim against the appellant. Counsel for the appellant submitted that he has stocked materials like rubble valued at Rs.3 lakhs on the road side, the quantity and value of which are disputed by the counsel for the respondent. We do not think, there is any scope for us to consider the claim and counter claim made by the parties, because the matter has to be decided only by the Block Development Officer with the help of the Engineer concerned and in the presence of the appellant. Therefore, the Writ Appeal is disposed of modifying the impugned judgment as follows: I. The Block Development Officer is directed to retender the work immediately and award the contract within a period of one month from now. Since the appellant has failed to execute the work in terms of the original contract, he should not be allowed to participate in the fresh tender. II. The retender will reveal the magnitude of loss suffered by the Block Panchayat with respect to original contract value and therefore, the Block Development Officer will be able to estimate the loss sustained by the Block Panchayat in retendering the work. WA.8/11 4 III.We do not want to deal with the issue as to whether the appellant himself delayed retendering of the work for such a long time by making application for extension of time or otherwise. In the absence of any contribution by the appellant, the Block Panchayat itself should be blamed for the inordinate delay in retendering and escalation in value of contract. We leave this issue open for the appellant to raise before the Block Panchayat, when liquidated damage is claimed against the appellant after retender. IV.After retender and after determining the loss, if any, recoverable from the appellant, the Block Panchayat should evaluate with the assistance of the Engineer such of the work whether it be culvert construction or road side walls, if any, carried out in accordance with the tender condition and so much so the work done to the satisfaction and certified by the Engineer should be valued and the same should be debited to the loss determined. V.The balance, if any, payable after setting off the advance paid to the appellant should be paid to the appellant and if more is recoverable from the appellant, then the Block Panchayat can exercise a lien on the building materials WA.8/11 5 stored by the appellant on the road side and Panchayat can sell the same to the new contractor at market value and adjust the cost of the same against the liquidated damages. The balance, if any, recoverable from the appellant can be recovered. On the other hand, if any amount is due to the appellant, the same should be paid to him. VI.The Block Development Officer is directed to comply with the above directions regarding the award of contract within one month and settle the account within a month thereafter. VII.The appellant should be allowed to participate in the evaluation work along with the Engineer concerned. VIII.The security amount and the retention amount will be dealt with based on the terms of the first contract awarded. C.N.RAMACHANDRAN NAIR, ACTING CHIEF JUSTICE P.S.GOPINATHAN, JUDGE vgs