Kerala High Court
T.A.Abdul Rahiman vs State Of Kerala on 6 October, 2020
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942
WP(C).No.20941 OF 2020(P)
PETITIONER:
T.A.ABDUL RAHIMAN,
AGED 68 YEARS,
S/O MAYIN HAJI, P.W.D. CONTRACTOR, REG.NO.57 A,
JARFIN COMPOUND, NORTH CHATTANCHAL,
P.O.THEKKIL-671 341, KASARAGOD DISTRICT.
BY ADVS.
SRI.M.SASINDRAN
SRI.S.SHYAM KUMAR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF PUBLIC WORKS SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE CHIEF ENGINEER,
PUBLIC WORKS DEPARTMENT,
THIRUVANANTHAPURAM-695 001.
3 THE SUPERINTENDING ENGINEER (JUNIOR),
OFFICE OF THE SUPERINTENDING ENGINEER,
ROADS AND BRIDGES, NORTH CIRCLE, P.W.D.COMPLEX,
MANANCHIRA, KOZHIKODE-673 001.
4 THE EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT, ROAD DIVISION,
KASARAGOD-671 121.
5 THE ACCOUNTANT GENERAL (A&E/AUDIT),
KERALA, THIRUVANANTHAPURAM-695 001.
BY ADV. SMT.PRINCY XAVIER, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.20941 of 2020
2
JUDGMENT
Petitioner is challenging Ext.P8 order. The petitioner is a contractor, who has completed the work of NABARD-RIDF-XV-Improvement to Parappa
- Malome road from 0/000 to 14/500 in Kasaragod District.
2. It is stated that even though part payment was made, final bill was not paid. At the same time, the petitioner is not paid the bills based on another work being executed by him on the ground that there was a mistake in payment towards the previous work done in Kasaragod in respect of the value of Bitumen.
3. The case of the petitioner is that the action of the respondents in recovering the additional amount under the guise of the alleged mistake is contrary to the terms in the agreement executed. Petitioner points out that the W.P.(C) No.20941 of 2020 3 Executive Engineer has also stated in Ext.P11 letter that payment was made to petitioner in accordance with the agreement and there was no excess payment to be realised or adjusted from the petitioner.
4. Heard the learned counsel for the petitioner and the learned Government Pleader.
5. From Ext.P8, it is seen that the said order is passed on the basis of an audit objection and on the basis of a Government letter issued on 09.05.2019. It appears that petitioner has not submitted any representation before the Government.
6. Though the learned counsel for the petitioner submitted that when the agreement is executed with the Executive Engineer, petitioner is not supposed to approach the Government, I am of the view that when Ext.P8 order was issued on the basis of a letter from Government and on the basis of the report of the Accountant General, W.P.(C) No.20941 of 2020 4 petitioner has to approach the Government to substantiate his claims.
Accordingly, the writ petition is disposed of allowing the petitioner to submit a representation before the Government as against Ext.P8. On receipt of the same, Government shall pass orders, after affording an opportunity of hearing to petitioner, within a period of three months from the date of receipt of copy of the judgment. In the meanwhile, no recovery shall be made on the basis of Ext.P8 order.
Sd/-
P.V.ASHA JUDGE ww W.P.(C) No.20941 of 2020 5 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE AGREEMENT DATED 19.2.2010 ENTERED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE SUPPLEMENTARY AGREEMENT ENTERED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE OF EXPERIENCE ISSUED BY THE 3RD RESPONDENT DATED 21.4.2015.
EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE EXECUTIVE ENGINEER TO THE APPROVED AGENCY PERMITTING THE PETITIONER TO PROCURE BITUMEN DATED 1.3.12.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 13.12.2012 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE EXECUTIVE ENGINEER DATED 8.9.2019. EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DATED 3.10.2019 MADE BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 22.07.2020 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE RELEVANT EXTRACT OF THE AUDIT REPORT ON THE INSPECTION OF ACCOUNTS AND REGISTERS OF THE OFFICE OF THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, KASARAGOD.
EXHIBIT P10 A TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE ON BEHALF OF THE PETITIONER DATED 07.08.2020.
EXHIBIT P11 A TRUE COPY OF THE REPLY SUBMITTED BY THE 4TH RESPONDENT DATED 19.8.2020.