Kerala High Court
M.Abdul Azeez vs Meenangadi Grama Panchayath on 13 April, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 13TH DAY OF APRIL 2022/23RD CHAITHRA, 1944
WP(C) NO. 4056 OF 2022
PETITIONER:
M.ABDUL AZEEZ,
AGED 33 YEARS
S/O. PAREEKUTTY, KARIMBATTATYIL HOUSE,
KEEZHUPARAMBA, MALAPPURAM DISTRICT,
PIN 673 639.
BY ADVS.
P.SAMSUDIN
M.ANUROOP
SHYAM NAIR
LIRA A.B.
RESPONDENTS:
1 MEENANGADI GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, MEENANGADI P.O,
WAYANAD DISTRICT, PIN 673 591.
2 THE SECRETARY,
MEENANGADI GRAMA PANCHAYATH, MEENANGADI P.O,
WAYANAD DISTRICT, PIN 673 591.
3 ASSISTANT EXECUTIVE ENGINEER,
LSG DEPARTMENT, MEENANGADI GRAMA PANCHAYATH,
MEENANGADI P.O, WAYANAD DISTRICT, PIN 673 591.
BY ADV SHRI.JOHN JOSEPH VETTIKAD, SC,
MEENANGADI GRAMA PANCHAYATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.04.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.4056/2022
:2:
N. NAGARESH, J.
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W.P.(C) No.4056 of 2022
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Dated this the 13th day of April, 2022
JUDGMENT
~~~~~~~~~ The petitioner, a registered Public Works Contractor, has filed this writ petition seeking to direct the respondents to pay the security amount of ₹1,55,000/- within a time frame and to pay interest at the rate of 12% thereon.
2. The 1st respondent-Panchayat awarded the work of Construction of Steel Foot Bridge over the existing protection wall of the pond at Attakkolli Park. An agreement was entered into and work order was issued to the petitioner on 10.03.2017. The petitioner satisfactorily completed the work by 29.12.2017. Ext.P2 is the completion certificate issued by the Assistant Engineer.
W.P.(C) No.4056/2022:3:
3. The bill amount due to the petitioner was paid after deducting ₹1,55,000/-. The deduction was towards guarantee for the work done and materials supplied in terms of Clauses 7 and 8 of the work agreement. The said amount is to be paid back to the petitioner after two years from completion of work if no damage is caused to the work done.
4. The petitioner submits that due to the flood caused by the torrential rains during 2019, the protection wall, on which the bridge was constructed, collapsed completely and as a result, the bridge constructed by the petitioner fell into the pond. The petitioner would state that no damage was caused to the bridge in spite of collapse and it can be replaced after reconstruction of protection wall. The protection wall was not constructed by the petitioner. However, due to the afore incident, a sum of Rs.1,55,000/- is withheld by the Panchayat.
5. The Panchayat Board passed a resolution on 14.02.2020 resolving to obtain a report from the Executive Engineer. The Panchayat decided to reconstruct the W.P.(C) No.4056/2022 :4: retaining wall and re-establish the bridge. The Panchayat, however, did not take any decision on refund of money payable to the petitioner. It is in the said circumstances that the petitioner has filed the writ petition.
6. The learned counsel for the petitioner submitted that the amount of ₹1,55,000/- is retained as a security value for the work done and the materials supplied. It is repayable to the petitioner if no damage is caused to the work done by the petitioner. The retaining wall which collapsed was not constructed by the petitioner. The retaining wall collapsed due to torrential rains and flood occurred in the year 2019. Since the work done by the petitioner does not suffer from any deficiency, the petitioner is entitled to refund of the amount.
7. Respondents 1 and 2 filed a counter affidavit. The respondents stated that if any damage occurs or any mistake noted, the contractor is bound to rectify such damages and mistakes to the satisfaction of the Panchayat. According to the respondents, the collapse of the retaining wall and steel W.P.(C) No.4056/2022 :5: foot bridge constructed by the petitioner happened only due to the use of substandard materials and poor workmanship in the construction of the bridge. Therefore, the Panchayat did not release the security deposit.
8. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing respondents 1 to 3.
9. It is evident from the pleadings and arguments that the petitioner had completed the work of construction of steel foot bridge. The bridge was constructed on a retaining wall as directed by the respondents. It is an admitted position that till the retaining wall over which the bridge was constructed collapsed, no defect whatsoever was noted in the construction of the bridge. The bridge construction was completed by 29.12.2017. The Assistant Engineer issued Ext.P2 completion certificate also.
10. After about two years, floods and torrential rains ravaged the area and the retaining wall collapsed. A report submitted by the Assistant Engineer, LID and EW Section W.P.(C) No.4056/2022 :6: would indicate that the retaining wall collapsed solely due to the strong gush of water during the floods. The fact that the retaining wall collapsed during the guarantee period of the steel foot bridge cannot be a reason to deny refund of security amount to the petitioner. The petitioner constructed the bridge on the retaining wall as required in the contract. There is no material whatsoever on record, apart from the bald allegation of the respondents, that the damage caused was due to substandard materials used in the construction of the bridge. The petitioner cannot be penalised, in the facts and circumstances.
The writ petition is therefore allowed. The respondents are directed to release the security amount of ₹1,55,000/- to the petitioner within a period of two months. The question of payment of interest is left open.
Sd-
N. NAGARESH, JUDGE aks/12.04.2022 W.P.(C) No.4056/2022 :7: APPENDIX OF WP(C) 4056/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ACKNOWLEDGMENT FORM FOR HANDING OVER THE SITE TO THE PETITIONER DATED 10.03.2017.
Exhibit P2 TRUE COPY OF THE WORK COMPLETION CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER.
Exhibit P3 TRUE COPY OF THE RESOLUTION OF THE PANCHAYAT BOARD DATED 14.02.2020.
Exhibit P4 TRUE COPY OF THE RESOLUTION OF THE PANCHAYAT BOARD DATED 07.07.2020.