Kerala High Court
L. Satheek vs The Principal Secretaryto Government on 29 November, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 4TH DAY OF AUGUST 2017/13TH SRAVANA, 1939
WP(C).No. 27763 of 2016 (U)
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PETITIONER(S):
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L. SATHEEK,
K. LEKSHMANAN & CO., AKKAVILA,
ERAVIPURAM P.O., KOLLAM.
BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE.
ADVS. SRI.MILLU DANDAPANI
RESPONDENT(S):
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1. THE PRINCIPAL SECRETARYTO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. PROJECT DIRECTOR,
(KERALA SUSTAINABLE URBAN DEVELOPMENT
PROJECT (K.S.U.D.P.), TRANS TOWER, 5TH FLOOR,
VAZHUTHAKKAD, THIRUVANANTHAPURAM- 695 014.
3. PROJECT MANAGER, K.S.U.D.P.,
KOLLAM CORPORATION, KOLLAM- 691 001.
4. SECRETARY,
KOLLAM CORPORATION, KOLLAM- 691 001.
R1 BY SR. GOVT. PLEADER SRI.K.P.HARISH.
R4 BY ADV. SRI.M.K.CHANDRA MOHAN DAS, SC.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-08-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 27763 of 2016 (U)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT. P1 TRUE COPY OF THE LICENCE ISSUED TO THE PETITIONER.
EXT. P2 TRUE COPY OF THE 1ST TWO PAGES OF THE CONTRACT
AGREEMENT BETWEEN THE PROJECT MANAGER, PIU KOLLAM
CORPORATION AND THE PETITIONER DATED 29.11.2008
EXT. P3 TRUE COPY OF THE FIRST SUPPLEMENTAL AGREEMENT
DATED 25.11.2009.
EXT. P4 TRUE COPY OF THE REPRESENTATION DATED 07.11.2011.
EXT. P5 TRUE COPY OF THE REPRESENTATION DATED 30.03.2013.
EXT. P6 TRUE COPY OF THE LETTER ADDRESSED BY 1ST RESPONDENT
TO THE 4TH RESPONDENT DATED 21.03.2014.
EXT. P7 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT
DATED 12.06.2014.
EXT. P8 TRUE COPY OF THE VARIATION ORDER NO. 1 APPROVED BY
THE 2ND RESPONDENT.
EXT. P9 TRUE COPY OF THE SUPPLEMENTAL AGREEMENT DATED 10.07.2015.
EXT. P10 TRUE COPY OF THE VARIATION ORDER NO.2.
EXT. P11 TRUE COPY OF THE ABSTRACT OF VARIATION ORDER NO.3.
EXT. P12 TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY
THE 3RD RESPONDENT.
EXT. P13 TRUE COPY OF THE GOVERNMENT ORDER DATED 02.05.2016.
EXT. P14 TRUE COPY OF THE MINUTES OF THE MEETING DATED 05.02.2015.
EXT.P14 (IN I.A.NO.9338/2017): FULL TEXT OF THE MINUTES OF THE MEETING
CONVENED BY THE 2ND RESPONDENT
ON 05/02/2015.
EXT. P15 TRUE COPY OF THE BILL DATED 11.08.2016 SUBMITTED TO
THE 3RD RESPONDENT.
.....2/-
WP(C).No. 27763 of 2016 (U)
EXT. P16 TRUE COPY OF THE COVERING LETTER DATED 11.08.2016.
ENCLOSING EXHIBIT P15.
EXT.P17 TRUE COPY OF THE INTIMATION DATED 21/11/2016 ISSUED BY
FEDERAL BANK TO THE PETITIONER.
EXT.P17 TO EXT.P20 FILED ALONG WITH REPLYAFFIDAVIT DATED 22/05/2017
EXT.P17 COPIES OF THE RELEVANT EXTRACT OF THE DECISION 6 AND 7.
EXT.P18 COPY OF THE NOTES PERTAINING TO DECISIONS 6 AND 7 PLACED
BEFORE THE CABINET.
EXT.P18A COPY OF THE RELEVANT PAGE OF EXT.P18 SHOWING THE
DECISION THAT HAS TO BE TAKEN REGARDING DECISION 6 AND 7.
EXT.P19 COPY OF THE DECISION OF THE CABINET DATED 20/01/2016
PERTAINING TO EXT.P18A.
EXT.P20 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER
ON 29/12/2016 UNDER THE RTI ACT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
CR
Devan Ramachandran, J.
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W.P.(C)No.27763 of 2016 U
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Dated this the 4th day of August, 2017
JUDGMENT
A very peculiar scenario, caused either by deliberate design or because of negligent omission, plagues the petitioner in this case where, in spite of the decision taken in his favour by the Council of Ministers of the Government of Kerala, the Secretary of the concerned department has issued orders reneging the benefits of such decision, thus rejecting certain claims made by the petitioner, which were earlier approved through the said decision of the Council of Ministers. The thrust of the petitioner's contentions against this is hinged on the Rules of Business of the Government of Kerala made by His Excellency Governor in exercise of the powers conferred by Article 166 of the Constitution of India and WPC 27763/16 2 the petitioner asserts that the order impugned in this writ petition, being contrary to the decision of the Council of Ministers would render it, under the ambit of the Rules, incompetent and void.
2. The petitioner claims to be a Class A contractor under the Public Works Department of the Government of Kerala. He has produced Exhibit P1, which is a licence issued to him in evidence of his assertion that he is a Class A PWD contractor.
3. The petitioner asserts that under the aegis of the Kerala Sustainable Urban Development Project (KSUDP), the Government of Kerala, in particular its Local Self Government Department, invited tenders for a project of construction of a fly over and an underpass at Chinnakkada in Kollam. The petitioner says that he had, after being found eligible in the tender proceedings, entered into a contract with the competent authorities of the PWD and he has produced, as Exhibit P2, the relevant WPC 27763/16 3 portions of the said contract. According to him, after the execution of Exhibit P2 agreement, he started the work by erecting machineries, collecting construction materials like metal, sand, steel, etc. and that he had also mobilised the requisite labour force. He says that the work was completed with great amount of effort since the Chinnakkada Junction is a very busy one and that he had faced substantial delay on account of the fact that the Corporation of Kollam did not provide the land required for the work and also because the area under Railways were not procured in time by the authorities for the purpose of execution of the project.
4. To cut the long story short, the petitioner says that he eventually completed the work but that the cost of the project had overrun to more than Rs.5 crores and he says that this large escalation occurred primarily because the design of the works had been modified from time to time by the concerned agencies and officers and also WPC 27763/16 4 because variations were made to the specifications of the project several times during its execution. The petitioner asserts that all these changes were accepted by the competent authorities from time to time and that administrative approval for all such additional works was accorded by the Project Director of KSUDP, which were also approved by the Asian Development Bank, which was financing the project. The petitioner submits that he thus preferred his final bill with a rate enhancement of about Rs.2,01,41,890.16 being the difference between the Local Market Rate (LMR) and Schedule of Rates (SOR) of 2012.
5. The committee of the KSUDP appears to have considered this escalation and to have decided to place it before the Council of Ministers for taking an appropriate decision in the matter. The KSUDP was directed to prepare a detailed note substantiating all the variations from the original contract value, due to the change in design and the additional works executed by the WPC 27763/16 5 petitioner, before the Council of Ministers. The materials on record would indicate that such a report was placed before the Council of Ministers by the competent authorities of the KSUDP and the petitioner has produced Exhibit P18 series of documents, which he says he has obtained under the Right to Information Act and points out to Exhibit P18(2), which is the note prepared for the meeting of the Council of Ministers, wherein his claim for escalation was specifically mentioned. The petitioner says that Exhibit P18(a) indicates two items in the agenda, on which decisions were to be taken, essentially relating to escalation of cost as claimed by the petitioner and that as per Exhibit P19, the Council of Ministers accepted both the items placed for their consideration, thus granting their imprimatur to the escalation of cost as claimed by the petitioner in his bill. The petitioner submits that in spite of Exhibit P19 decision taken by the Council of Ministers, the Secretary of the PWD thereafter issued WPC 27763/16 6 Exhibit P13 order rejecting the claim of the petitioner for enhancement in rates holding that his claims are 'disputed by the Government'. It is in such circumstances that the petitioner has approached this Court in this writ petition impugning Exhibit P13 order.
6. I have heard the learned Senior Counsel Sri.K.P.Dandapani, assisted by Sri.Roshan D.Alexander, appearing for the petitioner, Sri.M.K.Chandramohan Das, learned Standing Counsel for the fourth respondent and the learned Senior Government Pleader for the official respondents.
7. The documents which have been placed on record by the petitioner and specifically Exhibit P18 series would indicate, with substantial degree of certainty that the petitioner's claim for escalation of price, on account of the overrun of cost, which the petitioner attributes primarily to the change in design and to various other modifications in specifications during WPC 27763/16 7 execution of the work, was accepted by the Union of Ministers in the Cabinet meeting held on 20.01.2016, as is evidenced by Exhibit P19. It is the specific submission of Sri.K.P.Dandapani, learned Senior Counsel that once the Cabinet had taken a decision approving the claim of the petitioner, the Secretary of the PWD could not have issued Exhibit P13 order without adverting to the same.
8. Sri.K.P.Dandapani, learned Senior Counsel reinforces his contention referring to the Rules of Business of the Government of Kerala, especially Section II thereof relating to the Procedure of the Council of Ministers, wherein it is expressly provided that any case, referred in the Second Schedule to it, may be brought to the attention of the members of the Council and that a decision can be taken in its meeting if the Chief Minister thinks that such a course is warranted. The learned Senior Counsel refers to Clause 16(2) thereof, wherein it is provided that if the Ministers accept the WPC 27763/16 8 recommendation contained in the Memorandum, the Secretary to the Council shall submit the case to the Chief Minister and that if the Chief Minister also accepts those recommendations with or without further observations, such files will be returned to the Secretary concerned who will thereafter be obligated and enjoined to issue necessary orders strictly in terms of the decision of the Council of Ministers.
9. Referring to Exhibit P19, the learned Senior Counsel makes a vehement submission that the Council of Ministers had perspicuously taken a view in favour of the petitioner and that a decision was expressly recorded therein that all the recommendations made by the Committee of the KSUDP be accepted. According to him, once this was done by the Council of Ministers, the Secretary of the concerned Department could not have passed an order like Exhibit P13 as he has done now. This is more so because, according to the learned Senior WPC 27763/16 9 Counsel, in the said order the Secretary has recorded that 'disputes' subsist between the petitioner and the Government with respect to the escalation of rates claimed by him. He says that this statement in Exhibit P13 is ineluctably untrue since Exhibit P19 minutes of the meeting of the Council of Ministers dated 20.01.2016, would show otherwise. According to him, since Exhibit P18 was accepted by the Council of Ministers at least five months before Exhibit P13 had been issued, the action of the Secretary in issuing the said order is completely illegal and unacceptable.
10. The learned Senior Government Pleader concedes that there is no mention regarding Exhibit P19 decision of the Council of Ministers anywhere in Exhibit P13 order. He says that he is unable to inform this Court with clarity whether the Secretary who passed the said order had information about Exhibit P19 and if he was aware that the Council of Ministers had, in fact, approved WPC 27763/16 10 the escalation of costs as claimed by the petitioner.
11. The submissions of Sri.K.P.Dandapani, learned Senior Counsel, edifice on the Rules of Business of the Government of Kerala, has great force and vigour. To fully appreciate its perspective, I think the relevant portions of the Rules require reading and for such purpose, I deem it necessary to extract it as below:
SECTION II-PROCEDURE OF THE COUNCIL
13. The Chief Secretary, or such other officer as the Council of Ministers may appoint, shall be the Secretary to the Council.
14. All cases referred to in the Second Schedule shall be submitted to the Chief Minister after consideration by the Minister in charge, with a view to obtaining his orders for circulation of the case under rule 15 or for bringing it up for consideration at a meeting of the Council.
15. (1) The Chief Minister may direct that any case referred to in the Second Schedule may, instead of being brought up for discussion at a meeting of the council, be circulated to the Ministers for opinion;
and if, all the Ministers are unanimous and the Chief Minister thinks that a discussion at a meeting of the Council is unnecessary, the case shall be decided without such discussion. If the Ministers are not unanimous, or if the Chief Minister thinks that a discussion at a meeting is necessary, the case shall be discussed at a meeting of the Council.
WPC 27763/16 11 (2) If it is decided to circulate any case to the Ministers, copies of all papers relating to such case which are circulated among the Ministers shall simultaneously be sent to the Governor. Where such a case is circulated in original to the Ministers, it should be circulated to the Governor also after all the Ministers have seen.
xxxx xxxxx xxxx
16. (2) If the Ministers have accepted the recommendation contained in the Memorandum for circulation, or if the date by which they were required to communicate their opinion has expired, the Secretary to the Council shall submit the case to the Chief Minister. If the Chief Minister accepts the recommendations, and if he has no observation to make, he shall return the case to the Secretary to the Council who will pass it on to the Secretary concerned who will thereafter take steps to issue the necessary orders.
12. These Rules are made by and under the powers conferred on the Governor of Kerala as per clauses (2) and (3) of Articles 166 of the Constitution of India. Therefore, a decision taken by the Cabinet and approved by the Chief Minister, would override all decisions, notifications or directions issued by a Department of the Government and it would be egregiously improper for any Secretary to act contrary to it. WPC 27763/16 12
13. The overriding impact of the decision taken by the Cabinet of Ministers under the Rules of Business of Governance has been declared by the Hon'ble Supreme Court of India in State of Bihar and others v. Suprabhat Steel Ltd. and others ((1999) 1 SCC 31), the Hon'ble Court, after considering the Rules of Business applicable to the State of Bihar, which is in parimateria with the Rules of Business applicable to Kerala, held that any decision taken by the Council of Ministers, whether an Industrial Policy or a Tourism Policy or any other, would override any notification individually issued by the various departments of the Government, which is contrary to the said decision. The Hon'ble Court also went on to say that a Government department can only act in furtherance of the decisions taken by the Council of Ministers and that it is not open to them to do anything contrary to the same. On such ratiocination, the Hon'ble Court declared the law that it is not open to the individual WPC 27763/16 13 department to issue notifications contrary to the policy decision taken by the Council of Ministers and all such notifications would have to give way to the decision of the Council of Ministers and that no conditions or stipulations can be imposed by any individual department in a manner as to defeat the benefits granted in the decision of the Council of Ministers.
14. In the milieu of the ratio in the above precedents and taking specific note of Exhibit P19 decision of the Council of Ministers, I am of the opinion that Exhibit P13 order would not obtain forensic sustenance in the backdrop of the Rules of Business of the Government of Kerala as noted above. The relevant Rules, as I have already mentioned, make it incumbent upon the concerned Secretary to pass necessary orders only in furtherance and in conformity with the decisions taken by the Council of Ministers and in this case since Exhibit P19 shows that the Council of Ministers had taken WPC 27763/16 14 a view in favour of the petitioner, the Secretary could not have deviated therefrom and to have issued an order like Exhibit P13. In such view of the matter, I am certain that Exhibit P13 order falls foul of law and I am left without any other option but to quash the same. I do so.
15. Once Exhibit P13 stands quashed as above, my consideration will be as to what kind of relief that the petitioner can be now granted. The learned Senior Counsel says that once Exhibit P13 is struck down it will be within the province of this Court to order the respondents to make payment of the amount of Rs.2,01,41,890.16 and such other amounts as would be eligible to the petitioner as per Exhibit P19 decision of the Council of Ministers. I am afraid that I cannot find favour with this submission since I am of the view that it would not be within the jurisdiction of this Court to issue orders to make payment of amounts to the petitioner merely because Exhibit P13 stands set aside. I am of the WPC 27763/16 15 opinion that the concerned Secretary should be directed to consider the matter afresh taking specific note of Exhibit P18(a) agenda placed for consideration of the Cabinet and Exhibit P19 decision of the Council of Ministers thereon and then to pass an order in terms of law with respect to the entitlement of the petitioner. I am also certain that the Secretary should be directed to do this within a prescribed time frame.
16. In such circumstances and for the reasons that I have recorded above, I direct the first respondent, who is the Principal Secretary of the Local Self Government Department of the Government of Kerala to re-consider the sanction of the amounts to be paid to the petitioner, untrammeled by what is stated by him earlier in Exhibit P13 and with specific advertence to the matters mentioned in Exhibit P18(a) agenda and the decision taken by the Council of Ministers in Exhibit P19 minutes recording such decisions. The first respondent shall be WPC 27763/16 16 obligated by the terms of this judgment to complete this exercise as expeditiously as possible but not later than one month from the date of receipt of a copy of this judgment.
17. I direct, since this writ petition has been pending before this Court for more than a year now, that the first respondent treat the directions contained in this judgment as being peremptory and to complete the exercise within the time granted herein without seeking any further extension of time.
This writ petition is thus ordered.
Devan Ramachandran, Judge tkv