Kerala High Court
K.R.Dinesan vs The State Of Kerala on 3 December, 2012
Author: K.Vinod Chandran
Bench: Manjula Chellur, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934
W.A.No.367 of 2013
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AGAINST THE JUDGMENT IN W.P.(C).No.34096/2007,
OF HIGH COURT OF KERALA, DATED 03-12-2012
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APPELLANT/ PETITIONER:-
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K.R.DINESAN,
GOVERNMENT CONTRACTOR,
MATTATHURKUNNU P.O., KODAKARA, THRISSUR DISTRICT - 680 684.
BY ADV. SRI.ANIL K.NARENDRAN.
RESPONDENTS/ RESPONDENTS:-
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1. THE STATE OF KERALA,
REP. BY THE SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE KERALA STATE CONSTRUCTION CORPORATION,
REP. BY ITS MANAGING DIRECTOR,
OFFICE OF THE KERALA STATE CONSTRUCTION CORPORATION,
CARMEL CENTRE, BANERJI ROAD, ERNAKULAM - 682 018.
3. THE GENERAL MANAGER,
KERALA STATE CONSTRUCTION CORPORATION,
OFFICE OF THE KERALA STATE CONSTRUCTION CORPORATION,
CARMEL CENTRE, BANERJI ROAD, ERNAKULAM - 682 018.
4. THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES,
NORTH CIRCLE, KOZHIKODE - 673 001.
R1 & R4 BY SENIOR GOVERNMENT PLEADER SRI.P.I.DAVIS.
R2 & R3 BY STANDING COUNSEL SRI.M.V.THAMBAN.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-03-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-
Manjula Chellur, C.J. &
K.Vinod Chandran, J.
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W.A.No.367 of 2013
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Dated this, the 6th day of March, 2013
JUDGMENT
K.Vinod Chandran,J.
The appellant is aggrieved by the refusal of the learned Single Judge to direct implementation of the decision in Exhibit P2 Minutes and direct release of payments by the 2nd respondent-Corporation with respect to three heads, which were alleged to be not a part of the contract entered into between the appellant and the 2nd respondent-Corporation.
2. The brief facts necessary for the disposal of the appeal is that the appellant was a sub contractor of the 2nd respondent-Corporation for construction of Mayannur Bridge at Ottappalam; the principal being the Public Works Department of the State. Admittedly the work was completed and the appellant claimed that the retention of certain amounts by the 2nd respondent-Corporation is illegal and not specifically provided for by the terms of the agreement. The three heads under which allegedly there was illegal retention of payments was with respect to interest claimed on mobilization advance, deduction towards providing insurance cover to the workers and W.A.No.367 of 2013 - 2 - the recovery of hire charges of certain machinery supplied by the 2nd respondent-Corporation, which were allegedly unusable. The learned Single Judge found that the claim with respect to payment of money as per the terms of the contract is a matter wherein there were disputed facts disabling this Court to enter into a finding under Article 226 of the Constitution of India. The learned Single Judge also found that it was to circumvent the said disability that the appellant had sought for implementation of Exhibit P2; which, according to the learned Single Judge, was unenforceable in law.
3. Before us, the learned counsel appearing for the appellant seriously assailed the findings of the learned Single Judge and asserted that Exhibit P23, going by the functionaries in the Government who were a party to it, was necessarily enforceable against the State and its ancillaries. The learned counsel would take us to the additional affidavit dated 13.08.2012 filed by the State to point out that the said additional affidavit refuted the claim of the 2nd respondent-Corporation that one of the items in Exhibit P2 minutes was not taken up in the meeting. We have to point out that nothing turns on such statement, since in the very same additional affidavit the State goes on to state that W.A.No.367 of 2013 - 3 - those decisions were taken by Exhibit P2 at the meeting constituted in the chambers of the Hon'ble Speaker. Since financial implications were evident, there could be no implementation straight away without further examination of the issue. On further consultation with the Finance Department of the Government as per the Rules of Business formulated for the Government of Kerala, the broad consensus agreed at in Exhibit P2 could not be sanctioned.
4. As rightly held by the learned Single Judge, the various issues raised with respect to the terms of the contract and the 2nd respondent-Corporation not being entitled to claim any amounts under the three heads specified above cannot be adjudicated under Article 226 of the Constitution of India. The terms of the contract would have to be examined with the facts regarding the payment of the mobilization advance, the production of a certificate evidencing payment of insurance premium and exact details as to the unserviceable tools supplied from the 2nd respondent-Corporation. This Court cannot go into a roving enquiry into the disputed facts and enter into an adjudication on the computation of the amounts to be paid as per the terms of an agreement.
W.A.No.367 of 2013 - 4 -
5. Hence, we have to look at only whether Exhibit P2 is enforceable against any of the official respondents. We cannot but notice that Exhibit P2 is merely an extract of the minutes of the meeting without any authentication whatsoever. True, the Government by its additional affidavit referred to above, accepts the meeting having taken place. Even according to the Government, these are only broad areas which came up for decision and cannot be interpreted as final and conclusive with respect to the issues raised therein. The Rules of Business of the Government also does not permit such decision to be taken in a meeting of the functionaries referred therein. The different personalities who had participated in the meeting held on 13.03.2007 at the chamber of the Hon'ble Speaker do not jointly or separately constitute an "authority" under a statute or under the agreement entered into between the 2nd respondent-Corporation and the appellant. Evidently the Rules of Business formulated for the functioning of the Government also does not recognize such a committee and no decision involving financial implication could be arrived at in such a meeting. In all probability, the meeting would have been one arranged to provide a meeting point for the 2nd respondent-Corporation and the appellant to talk to each other and W.A.No.367 of 2013 - 5 - bury their hatchets. The 2nd respondent-Corporation though statutory and fully owned by the Government of Kerala, cannot be compelled in law to comply with the recommendations in Ext.P2.
We are unable to persuade ourselves that the findings of the learned Single Judge in the impugned judgment require any manner of interference. We refuse to do so and sustain the judgment of the learned Single Judge, dismiss the appeal, but do not make any order as to costs.
Sd/-
Manjula Chellur, Chief Justice Sd/-
K.Vinod Chandran, Judge.
vku/-
( true copy )