IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 30148 of 2005(L) -------------------------- PETITIONER: ------------ MARIYA KUNHI, W/O.MOHAMMED KUNHI HAJI, P.W.D.CONTRACTOR, BENDICHAL, THEKKIL VILLAGE.P.O, KASARAGOD TALUK. BY ADV. SRI.SHIRAZ ABDULLA RESPONDENTS: ------------- 1. MINISTER OF MINOR IRRIGATION, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, KASARAGOD. 3. TAHSILDAR, REVENUE RECOVERY, KASARAGOD. BY GOVERNMENT PLEADER SMT. SMITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY DR. N. VIJAYAN. EXT.P2 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BEFORE THE SUPERINTENDING ENGINEER, MINOR IRRIGATION CIRCLE, KOZHIKODE DATED 31.7.2002 EXT.P3 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BEFORE THE FIRST RESPONDENT DATED 23.9.2004 EXT.P4 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 2.9.2005 SUBMITTED BEFORE THE FIRST RESPONDENT. EXT.P5 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 3.10.2005 SUBMITTED BEFORE THE 2ND RESPONDENT. EXT.P6 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 6.10.2005 SUBMITTED BEFORE THE FIRST RESPONDENT. EXT.P7 TRUE PHOTOCOPY OF THE DEMAND NOTICES ISSUED BY THE THIRD RESPONDENT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO.30148 OF 2005 -------------------------------------------- Dated this the 21st day of July, 2008 JUDGMENT Heard counsel for the petitioner and Government Pleader for the respondents. Petitioner is challenging recovery proceedings for recovery of Rs. 10,02,768/- being the loss caused by her husband to the Government after adjusting EMD, etc., on account of his failure to execute the contract awarded to him for construction of a bridge-cum- check dam. The contention of the petitioner is that her husband was in an unstable condition and breach of contract undertaken by him was not a conscious act and hence recovery is not permissible. When this contention was raised earlier, this Court on 8.2.2008 directed the Tahsildar to conduct an enquiry and file a report in this Court. Tahsildar has now reported that petitioner's husband who was a PWD contractor is now leading a normal life and he has extensive properties and income from the building. Government Pleader submitted that aftetr award of contract, petitioner's husband approached this Court by filing O.P. 17382 of 2002 wherein the request was to accept property 2 security instead of cash security and the same was allowed by this Court. Since petitioner did not execute the contract, the contract was awarded to another person which is stated to have caused loss to the Government. It is seen that petitioner's husband agreed to execute the work at 37.7 per cent below the PAC while the next contractor undertook the work and executed it at 26.18 per cent below the PAC. The loss demanded ;from the petitioner's husband is the difference between the amount quoted by the petitioner's husband and the next contractor. The demand is strictly in accordance with tender conditions and there is no scope for contest against the amount of loss determined. However, since there was stay against recovery proceedings, and petitioner's husband was stated to be under medication, I feel this is a fit case where full interest be waived if arrears are cleared in easy monthly instalment of Rs. 50,000/-, first of which will be paid on or before 30th of August, 2008 and the balance on or before 30th of succeeding months till full arrears are cleared. I make it clear that waiver of interest is a condition for payment of arrears in instalments, and if default is committed in payment of arrear instalments, waiver of 3 interest and instalment facility will stand automatically vacated and respondents can on first default proceed for recovery of the entire arrears with interest. If payments are made voluntarily, no collection charges will be recovered from the petitioner's husband. W.P. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 4