Kerala High Court
P.A. Mathew vs Executive Engineer on 24 August, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 24TH DAY OF AUGUST 2020/2ND BHADRA, 1942
WP(C).No.19590 OF 2019(W)
PETITIONER:
P.A. MATHEW,PALUTHARA HOUSE,THIRUMOOLAPURAM,
THIRUVALLA,PATHANAMTHITTA.
BY ADVS.
SRI.K.SASIKUMAR
SRI.P.S.RAGHUKUMAR
SRI.S.ARAVIND
SHRI.REJU PRASAD
SMT.PRIYA CAROL
RESPONDENTS:
1 EXECUTIVE ENGINEER,LSGD DIVISION
PATHANAMTHITTA DISTRICT PANCHAYAT,
PATHANAMTHITTA -689 101.
2 ASSISTANT EXECUTIVE ENGINEER,
LSGD SUB DIVISION OFFICE,
PULIKEEZH, THIRUVALLA,
PATHANAMTHITTA DISTRICT-689 106.
3 ASSISTANT ENGINEER,LSGD SECTION,
KUTTUR GRAMA PANCHAYAT, KUTTUR, THIRUVALLA,
PATHANAMTHITTA DISTRICT-689 106.
4 SECRETARY,PATHANAMTHITTA DISTRICT
PANCHAYAT,PATHANAMTHITTA-689 101.
BY GOVERNMENT PLEADER SMT. K.M. RASHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 24.08.2020, ALONG WITH WP(C).19818/2019(B), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)Nos.19590 & 19818 of 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942
WP(C).No.19818 OF 2019(B)
PETITIONER:
P.A.MATHEW,PALUTHARA HOUSE,
THIRUMOOLAPURAM, THIRUVALLA,
PATHANAMTHITTA.
BY ADVS.
SRI.K.SASIKUMAR
SRI.P.S.RAGHUKUMAR
SRI.S.ARAVIND
SHRI.REJU PRASAD
SMT.PRIYA CAROL
RESPONDENTS:
1 EXECUTIVE ENGINEER,LSGD DIVISION
PATHANAMTHITTA DISTRICT PANCHAYAT,
PATHANAMTHITTA-689 101.
2 ASSISTANT EXECUTIVE ENGINEER,
LSGSD SUB DIVISION OFFICE,
PULIKEEZ, THIRUVALLA,
PATHANAMTHITTA DISTRICT-689 101.
3 ASSISTANT ENGINEER,LSGD SECTION,
KUTTUR GRAMA PANCHAYAT, KUTTUR, THIRUVALLA,
PATHANAMTHITTA DISTRICT,689 106
4 SECRETARY,PATHANAMTHITTA DISTRICT
PANCHAYAT, PATHANAMTHITTA-689 101.
BY GOVERNMENT PLEADER SMT. K.M. RASHMI
WP(C)Nos.19590 & 19818 of 2019
3
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24.08.2020, ALONG WITH WP(C).19590/2019(W), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)Nos.19590 & 19818 of 2019
4
JUDGMENT
~~~~~~~~~ Dated this the 24th day of August, 2020 [WP(C) Nos.19590 & 19818 of 2019] W.P.(C) No.19590/2019 has been filed by the petitioner seeking to direct the first respondent to effect payment of ₹2,17,932/- as per the part bill passed under Exhibit-P3. W.P.(C) No.19818/2019 has been filed by the petitioner seeking to direct the first respondent to effect the payment as per Exhibit-P2 part bill immediately.
2. In W.P.(C) No.19818/2019, the petitioner states that he is a PWD contractor who took up a work in the Kuttur Grama Panchayat and the work was 'Chakrasalakadavu- Panachimoottil Kadavu road maintenance'. Technical sanction was obtained for ₹27,15,000/-. The estimated WP(C)Nos.19590 & 19818 of 2019 5 amount was ₹27,12,757/-. The petitioner quoted ₹26,39,775/- and thereupon the work was awarded to him. The petitioner executed necessary agreements.
3. The petitioner submits that the work proceeded in all speed under the supervision of the respondents who conducted super check of the work. Measurements of the work completed. However, in the measurement book, the volume of works completed has been mistakenly reduced, contends the petitioner. Therefore, an amount of ₹7,14,718/- alone was admitted as the amount due to the petitioner. The said reduced amount was passed by the first respondent for payment, as is evident from Exhibit-P2. Later, the third respondent conducted proper measurement. Thereupon, the total value for this works was computed at ₹16,47,632.13, as evident from Exhibit-P3. The 3rd respondent therefore prepared Ext.P4 running account bill for ₹16,47,632.13 on 06.06.2018 itself.
4. Subsequently, there were some complaints in respect of a small portion of the work. The petitioner was WP(C)Nos.19590 & 19818 of 2019 6 required to rectify the defects and the petitioner immediately complied with the direction. However, the bill for ₹16,47,632.13 was not processed or paid by the respondents. The petitioner therefore seeks to direct the first respondent to effect the payment of Exhibits-P2 and P4 Bills immediately.
5. The first respondent opposed the writ petition filing counter affidavit. The first respondent stated that amount is not paid to the petitioner since concrete drain newly constructed by the petitioner was seen damaged. Though a direction was given to the petitioner to rectify the damage, the petitioner has not taken any action. Based on public complaints, a departmental enquiry was conducted by the office of the Chief Engineer, LSGD, issuing a memo of charges to the Assistant Engineer. The first respondent states that if the part bill is disbursed to the petitioner, he shall not complete the work or rectify the damage to the drain.
WP(C)Nos.19590 & 19818 of 2019 7
6. Heard learned counsel for the petitioner and learned Government Pleader appearing for the respondents.
7. From the pleadings available in the writ petition, it is seen that the petitioner had to undertake road maintenance to a length of 518 m, including construction of support wall and drainage. The petitioner has constructed and completed the work of 309 m. For that part of the completed work, though initially only an amount of ₹7,14,718/- was admitted, subsequently the said amount was revised to ₹16,47,632.13. The work, in fact, proceeded up to 370 metres. But, the remaining work could not be completed due to the floods lashed out in Kerala.
8. As is discernible from Exhibit-R1(b) letter of Assistant Engineer of the Panchayat addressed to the Principal Secretary of the Local Self Government Department, 309.8 m of drainage has been constructed with a height of 90 cms and the said portion does not suffer from any damage. 60 m of drainage was constructed with a height of 120 cm on demands made by the local people and it is not WP(C)Nos.19590 & 19818 of 2019 8 with the approval of the Assistant Engineer or the Overseer.
9. Exhibit-R1(c) inspection report of the Executive Engineer would indicate that certain organisations have made a complaint at the office of the Executive Engineer regarding unscientific construction. The Executive Engineer has specifically stated that the defects noted in the construction is partly due to failure of supervision and partly due to defect in construction. The road maintenance and construction in respect of 309.8 m is defectless. There is no dispute in this regard. The defects were noted in the remaining portion of the maintenance/construction. The petitioner could not complete the entire work entrusted with him due to floods.
10. The Assistant Engineer, LSGD has forwarded Exhibit-P7 letter to the Executive Engineer pointing out that construction of drainage in the remaining area can be usefully done only after heightening the road. The Assistant Engineer, in Ext.P7, has stated that the remaining portion is a marshy area and earth filling and DR Pack has to be done WP(C)Nos.19590 & 19818 of 2019 9 with 1 m width and 30 cm height and additional amount has to be included in the estimate. The remaining work can be faultlessly completed only after making these changes and revising the estimates. It is evident that the petitioner has completed 309.8 m of work out of the 518 m of work agreed to be undertaken by him without giving rise to any complaint. In respect of this work, though the respondents have sanctioned ₹7,14,718/- on 07.12.2017, by Exhibits-P3 and P4 this amount has been revised to ₹16,47,632.13. The non-completion of work does not appear to be solely due to the fault of the petitioner. Therefore, there is no reason why the petitioner should be made to suffer for the work properly completed by him.
11. In the circumstances, W.P.(C) No.19818/2019 is disposed of directing the respondents to disburse the amount sanctioned as per Exhibit-P2 to the petitioner within a period of one month. The respondents shall also consider Exhibit- P4 bill dated 06.06.2018 taking into account measurements recorded in Exhibit-P3 and make payment without further WP(C)Nos.19590 & 19818 of 2019 10 delay. It is made clear that the respondents will be at liberty to proceed against the petitioner if it is found that any loss is caused to the respondents due to the defective work of the petitioner.
12. In W.P.(C) No.19590/2019, the prayer of the petitioner is to direct the first respondent to effect payment of ₹2,17,932/- as per the part bill passed in the light of Exhibit- P3. The said amount was passed by the respondents in the year 2018, in respect of the very same work. The first respondent is directed to consider Exhibit-P3 and take a decision on payment of the said amount to the petitioner within a period of one month.
Both the writ petitions are disposed of as above.
Sd/-
N. NAGARESH, JUDGE aks/26.08.2020 WP(C)Nos.19590 & 19818 of 2019 11 APPENDIX OF WP(C) 19590/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE TECHNICAL SANCTION AS PER ODER DATED 1.2.2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 A TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 7.3.2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P3 A TRUE EXTRACT OF THE RELEVANT PAGES OF THE MEASUREMENT BOOK RELATING TO THE WORK EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT WP(C)Nos.19590 & 19818 of 2019 12 APPENDIX OF WP(C) 19818/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE LETTER TO ACCEPTANCE DATED 7.12.2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P2 A TRUE RELEVANT EXTRACT OF THE MEASUREMENT BOOK FOR THE WORK AS ON 29.3.2018 EXHIBIT P3 TRUE RELEVANT EXTRACTS OF THE MEASUREMENT BOOK FOR THE WORK EXHIBIT P4 A TRUE COPY OF THE BILL DATED 6.6.2018 PREPARED BY THE 3RD RESPONDENT IN RESPECT OF THE WORK EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 6.6.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION FORWARDED BY THE PETITIONER TO THE RESPONDENTS 2 AND 3 RECEIVED BY THEM ON 28.3.2019 EXHIBIT P7 A TRUE COPY OF THE LETTER DATED 15/01/2018 FORWARDED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A A TRUE COPY OF THE MEMO DATED 14/02/2020.
EXHIBIT R1 B A TRUE COPY OF THE REPLY DATED 03/06/2020.
EXHIBIT R1 C A TRUE COPY OF THE LETTER DATED 19/06/2020 ALONG WITH THE REPORT.