IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 OP.No. 17743 of 1995(K) ----------------------- PETITIONER(S): --------------------- 1. BINO K. CHERIAN, S/O. LATE SRI. K.P. CHERIAN, KDALIKKATTIL HOUSE, MEKADAMPU P.O., MUVATTUPUZHA, ERNAKULAM. 2. SARAMMA CHERIAN, W/O. LATE SRI. K.P. CHERIAN DO. DO. REP. BY P.A. HOLDER BINO K. CHERIAN. 3. BIJU, K. CHERIAN, S/O. LATE SRI. K.P. CHERIAN DO. DO. REP. BY P.A. HOLDER BINO K. CHERIAN. 4. MATHEWS K. CHERIAN, S/O. LATE SRI. K.P. CHERIAN DO. DO. REP. BY P.A. HOLDER BINO K. CHERIAN. 5. MARIAMMA PAILEE, W/O. LATE SRI. PILEE, DO. DO. REP. BY P.A.HOLDER BINO K. CHERIAN. BY ADV. SRI.K.BABU THOMAS SMT.MARYKUTTY BABU RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SPECIAL SECRETARY TO THE GOVT. OF KERLA, SECRETARIAR, TRIVANDRUM. 2. THE SUPERINTENDEING ENGINEER, KALLADA IRRIGATION PROJECT LB CIRCLE, KOTTARKKARA. 3. THE SUPERINTENDDING ENGINEER, PWD ROADS AND BUILDINGS, SOUTH CIRCLE, TRIVANDRUM. 4. THE EXECUTIVE ENGINEER, KIPRB DIVISION NO.II, KOTTARAKKARA. 5. THE EXECUTIVE ENGINEER, KIPRB DIVISION NO.II, KOTTARAKKAR. 6. THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM. 7. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. GOVERNMENT PLEADER SRI. LAXMI NARAYANAN FOR R1 TO 7 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON 29.6.2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 32214 OF 1995 IN O.P. 17743 OF 1995 DISMISSED 29.6.2009. SD/- P. BHAVADASAN, JUDGE. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 17743 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2009. JUDGMENT In this Original Petition Ext.P2 is under challenge. 2. Petitioners are the legal heirs of Sri.K.P.Cherian, who died on 21.9.1995. Late Cherian was a public works contractor, who took several works on tender from respondents 1 to 5. Amounts are due to late Cherian for the various works done by him. Petitioner points out that the amount due to late Cherian for the works in 1987-1988 is above Rs.1,89,00,000/-. Except for four incomplete works, late Cherian was entitled to the amounts due to him. In all cases, the respondent concerned had promised proper facilities for carrying out the work. Periodical payments due were not paid. The petitioners have mentioned various amounts due for the various works undertaken by late Cherian. The petitioners point out that without settling the claim of late Cherian, the respondents O.P. 17743/1995. 2 sought to initiate revenue recovery proceedings. Late Cheriyan instituted O.S. No.141 of 1988 before the Munsiff's Court, Kottarakkara seeking necessary relief. Though the suit was dismissed by the trial court, the appellate court reversed the decree and granted an injunction in favour of the plaintiff. By the appellate decree the defendants in the suit, who wee also respondents herein, were restrained from proceeding further for recovery until the termination of the arbitration proceedings. The petitioners point out that as regards the claim between late Cherian and the respondents, several arbitration proceedings are pending and amounts due to late Cheriyan as well as due from him are yet to be ascertained. On receipt of notice, the petitioners filed their objection pointing out the facts. Ignoring the same, respondents are proceeding with the revenue recovery proceedings. Ext.P2 is the notice issued to them. Pointing out that Ext.P2 is unsustainable in law, they prayed that a writ of certiorari may be issued. O.P. 17743/1995. 3 3. Respondents 2 and 4 have filed a statement. Seventh respondent has filed a counter affidavit. In the statement by respondents 2 and 4 the details of the works undertaken by late Cherian are given. In the counter affidavit filed by the seventh respondent, it is pointed out that Revenue Recovery Certificate was received from the District Collector and so initiated proceedings under the Revenue Recovery Act for recovery of the amount from late Cherian. A sum of Rs.24,90,021/- had to be recovered. As late Cherian was no more, proceedings have to be initiated against the petitioners. It was pointed out that the petitioners cannot challenge the revenue recovery proceedings. 4. It is to be noticed that the petitioners have given details of the various works undertaken by late Cherian, some of which were completed and some of which were incomplete. The statement of respondents 2 and 4 also shows that Cherian had done several works for the department. By Ext.P2 an amount of Rs.24,90,021/- was sought to be recovered. It is seen that O.P. 17743/1995. 4 petitioners had filed a detailed objection to the proceedings. There is nothing to indicate that the said objections have been considered. The petitioners also produced Ext.P1, which is the judgment in A.S. 41 of 1993 before the Sub Court, Kottarakkara. That judgment interdicts the recovery of the amounts claimed by the respondents based on Exts.B1 and B2 in that appeal till the arbitration proceedings are completed. 5. The respondents have no case that the arbitration proceedings have attained finality. Petitioners claim that considerable amounts are due to late Cherian for the works undertaken and done by him. Respondents are unable to show as to how the amounts shown in Ext.P2 had been arrived at. Even assuming that some amounts are due to the respondents, it is for them to establish how the quantification has been made by them and the procedure followed by them. In the light of Ext.P1 judgment, respondents 1 to 3 could not have proceeded with the recovery. Whatever that be, at any rate the petitioners have filed O.P. 17743/1995. 5 their objections to the proposal for revenue recovery and that ought to have been considered before further proceedings are taken. Also since arbitration proceedings have not become final, it may not be just and proper for the respondents to proceed to recover the amounts due to them. Considering the above aspects, it is felt that Ext.P2 cannot survive. In the result, this Original Petition is allowed and Ext.P2 stands quashed and the respondents are at liberty to take such proceedings as are available to them under law in the light of what has been stated above. P. BHAVADASAN, JUDGE sb. O.P. 17743/1995. 6 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 17743 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 29.6.2009.