Kerala High Court
M.A.Ameer vs The State Of Kerala on 5 February, 2021
Equivalent citations: AIRONLINE 2021 KER 101
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 05TH DAY OF FEBRUARY 2021/16TH MAGHA,1942
WP(C).No.14889 OF 2020(I)
PETITIONERS:
M.A.AMEER,
AGED 50 YEARS,
PWD CONTRACTOR,
MUNAMBA HOUSE,
P.O.CHENGALA, KASARAGOD-671541.
BY ADVS.
SRI.K.L.VARGHESE (SR.)
SMT.SANTHA VARGHESE
SRI.RAHUL VARGHESE
SRI.RANJITH VARGHESE
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
PLANNING AND ECONOMIC AFFAIRS (A) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION,
PWD COMPLEX,
PULIKUNNU, KASARAGOD-671 121.
3 THE SPECIAL OFFICER AND GOVERNMENT JOINT
SECRETARY,
KASARAGOD DEVELOPMENT PACKAGE,
CIVIL STATION,
KASARAGOD-671123.
W.P.(C) No.14889/2020
:2:
4 THE DISTRICT COLLECTOR,
KASARAGOD, KASARAGOD DEVELOPMENT PACKAGE,
CIVIL STATION,
KASARAGOD-671123.
SR. GOVERNMENT PLEADER SRI K.V.MANOJ KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 05-02-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(C) No.14889/2020
:3:
N. NAGARESH, J.
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W.P.(C) No.14889 of 2020
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Dated this the 5th day of February, 2021
JUDGMENT
~~~~~~~~~ Petitioner, who is an A-Class Contractor of the Kerala Public Works Department, has filed this writ petition seeking to quash Ext.P8 and to direct the 4 th respondent- District Collector to take immediate steps for rectification of mistake in declining the amount and to release ₹23,38,367/- to the petitioner, as recommended by the Executive Engineer in Exts.P6 and P7 within a time to be stipulated by this Court. The petitioner has also sought interest at 15% per annum on the said amount.
2. The petitioner undertook the work of "Improvement of Adoor Mandakol Road" for the PWD. The original scope of the work provided "construction of carriage way with 20 mm. thick premixed open grade chipping carpet". W.P.(C) No.14889/2020 :4: Subsequently, the scope of work was modified from "premixed open grade chipping carpet" to "Bituminous Macadam and Bituminous Concrete". The Government sanctioned the change as per Ext.P2 and the work was accordingly completed by the petitioner. The final bill was settled on 27.09.2017.
3. The petitioner states that ₹5,00,00,000/- was deposited for the project work. However, the final bill was only for ₹4,80,86,314/-. The balance amount of ₹19,13,686/- was returned to the accounts of the 4 th respondent-District Collector. When the petitioner's auditor scrutinised his accounts, the auditor noted that there was a deficit in the amount due to the petitioner on account of an oversight and more amount was due to the petitioner from the respondents. Therefore, on 01.10.2019, the petitioner submitted Ext.P3 request to the Executive Engineer to re-examine the bills.
4. The petitioner had procured all the materials required for the work from his own sources. The respondents did not supply any material at all. However, an W.P.(C) No.14889/2020 :5: amount of ₹22,35,692/- was seen recovered from the amount due to the petitioner towards differential cost of materials, by mistake. In fact, the Agreement provided that no departmental materials shall be supplied to the petitioner by the Department. Though the petitioner had himself procured Bitumen and emulsion with his own funds, the said amount was seen erroneously deducted from the total amounts due to the petitioner.
5. The Executive Engineer noticed this defect and issued Ext.P5 letter dated 27.01.20020 to the District Collector. The Executive Engineer stated that an amount of ₹19,16,997/- was deducted from the 2 nd part bill of the petitioner and another amount of ₹3,18,695/- from the 3 rd part bill, totalling to ₹22,35,692/-. The Executive Engineer recommended that the said amount may be re-credited to the account of the project work for onward payment to the petitioner.
6. As per Ext.P6 dated 27.02.2020, the Special Officer & Government Joint Secretary of Kasaragod W.P.(C) No.14889/2020 :6: Development Package issued letter to the Executive Engineer seeking details of agreed PAC, part bills and final bill for further scrutiny on account of the discrepancies. By Ext.P7 letter dated 29.02.2020, the Executive Engineer informed the Special Officer & Government Joint Secretary that the amount recovered from the 2 nd and 3rd part bills was ₹21,54,869/- and another amount of ₹1,77,548/- was also erroneously deducted towards cost of empty drums of Bitumen and yet another amount of ₹5,950/- from the 3 rd and final bill of the petitioner and the total deduction wrongly made was ₹23,38,367/- which is to be reimbursed to the petitioner.
7. Though there was no dispute as regards the unauthorised deduction from the bills of the petitioner, the District Collector issued Ext.P8 letter to the Executive Engineer stating that the project was of the year 2014-'15 and proceedings thereon were completed and therefore the new proposal for reimbursement need not be considered. A copy of Ext.P8 was forwarded to the petitioner also. The W.P.(C) No.14889/2020 :7: petitioner is aggrieved by the decision of the District Collector communicated through Ext.P8.
8. The learned counsel for the petitioner argued that the denial of payment of ₹23,38,367/- by the District Collector is unlawful and unjustifiable. Being a mutual mistake, the non-return of the said amount tantamount to deprivation of legitimate dues to the petitioner. The petitioner has completed the work making considerable savings to the respondents. The petitioner quoted a very competitive rate of 23.78% below the estimate rate. The work was done to the satisfaction of the respondents. When the audit of accounts disclosed the mistake and the Executive Engineer certified the same, it would be highly arbitrary and unjust on the part of the 4th respondent to decline the amount to the petitioner for the sole reason that the project was of the year 2014-'15.
9. Learned counsel for the petitioner pointed out that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of W.P.(C) No.14889/2020 :8: invalidation of the act in case of violation. Relying on the judgment of the Hon'ble Apex Court in Vestindia Pharmaceuticals Limited v. State of Uttar Pradesh and another [2020 SCC Online SC 912], the learned counsel for the petitioner argued that the question of Limitation Act does not apply to the writ jurisdiction and the discretion vested in the Court under Article 226 of the Constitution has to be judiciously exercised after considering all pros and cons of the matter, including the nature of the dispute, the explanation for the delay, whether any third party rights have intervened etc. Learned counsel pointed out that the jurisdiction under Article 226 being equitable in nature, questions of proportionality in considering whether the impugned order merits interference or not in exercise of the discretionary jurisdiction will also arise.
10. The learned counsel for the petitioner also relied on the judgment of the Apex Court in Madras Port Trust v. Hymanshu International by its Proprietor V. Venkatadri (Dead) by LRs [(1979) 4 SCC 176] and urged that the W.P.(C) No.14889/2020 :9: respondents cannot resort to the plea of limitation to defeat just claim of citizen.
11. The learned counsel for the petitioner argued that the issue involved in the writ petition is not a disputed question of fact at all. This Court has held in the judgment in Grace Joseph v. State of Kerala and others [2006 KHC 783] that when on available materials, it may not at all be necessary to record evidence and there may not be any hotly disputed facts, which don't require recording of evidence for determination, the parties cannot be forced to seek the desired relief from the civil court.
12. The learned Government Pleader representing the respondents strongly opposed the writ petition. The learned Government Pleader argued that the work was completed on 29.03.2017. The claim in the writ petition is in respect of the differential cost allegedly deducted in part bills which were submitted on 31.05.2016, 07.02.2017 and 30.03.2017. The project was closed long back in 2017 and there is no fund or amount available as the project is closed.
W.P.(C) No.14889/2020: 10 :
13. The contention of the petitioner that the deduction of amount in the midst of differential cost as if Bitumen was supplied by the Department, is irrelevant. The subject work is not an item rate contract and therefore the claim made by the writ petitioner is not maintainable. The claim of the petitioner is stale and belated. The Government Pleader submitted that the estimate rate of Bitumen was higher and the actual rate was lower. It was under that circumstance the differential amount was deducted.
14. I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.
15. As regards the plea of delay and limitation, it is to be noted that the 3rd and final bill was submitted by the petitioner on 27.09.2017. The petitioner pointed out the mistake and sought for rectification on 01.10.2019. The impugned Ext.P8 order was passed by the 4 th respondent on 02.07.2020. The writ petition was filed on 22.07.2020, within three years of the submission of final bill and of noticing the error and within three weeks of issuing the impugned W.P.(C) No.14889/2020 : 11 : communication. Therefore, this Court finds that the writ petition cannot be dismissed on the basis of delay, laches or limitation.
16. The further contention of the learned Government Pleader is that the issue involves disputed questions of fact and hence this Court should not interfere in the matter. It is not in dispute that the petitioner quoted the work at a competitive rate of 23.78% below the estimated rate and the work was satisfactorily completed. Amounts were deducted from the bills of the petitioner as differential cost on an erroneous assumption that Bitumen and emulsion were supplied by the Department. The fact that the Department has not supplied Bitumen and emulsion to the petitioner, is not in dispute. In fact, Clause 28 of Ext.P4-NIT specifically states that no departmental materials shall be supplied to the Contractor by the Department.
17. The Executive Engineer pointed out this error to the 4th respondent-District Collector as per Ext.P5. The Special Officer & Government Joint Secretary, Kasaragod W.P.(C) No.14889/2020 : 12 : Development Package called for the required documents to ascertain the fact. The differential cost of Bitumen deducted from the bills of the petitioner was ₹21,54,869/-. Cost of empty drums were also mistakenly deducted to the tune of ₹1,83,498/-. Thus, the total erroneous deduction from the bills of the petitioner was ₹23,38,367/-. However, the District Collector chose not to correct the mistake for the specious reason that the project in question was of the year 2014-'15. The petitioner could not detect the mistake of erroneous deduction at the time of settlement of the bills. But, as soon as the mistake was noted, he brought it to the notice of the respondents. The concerned Executive Engineer, after perusing the records including the M-Book, came to the conclusion that erroneous deductions were made from the bills of the petitioner. When amounts were erroneously deducted from the payment to the petitioner, it is the duty of the State to make refund. The deduction of amounts were without the authority of law. The State has no right to the money and it is refundable to the Contractor. W.P.(C) No.14889/2020 : 13 :
In the facts of the case, the writ petition is partly allowed. Ext.P8 is set aside. The respondents are directed to take immediate steps for rectification of the mistake and to release the amount of ₹23,38,367/- to the petitioner as recommended by the Executive Engineer in Exts.P6 and P7, within a period of two months.
Sd/-
N. NAGARESH, JUDGE aks/03.02.2021 W.P.(C) No.14889/2020 : 14 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(RT.)NO.16/2015/PLG DATED 8.1.2015.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED
22.4.2015 ISSUED BY THE 4TH
RESPONDENT-DISTRICT COLLECTOR.
EXHIBIT P3 TRUE COPY OF THE REQUEST DATED
1.10.2019 ISSUED BY THE PETITIONER TO
THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE AGREEMENT FORM NO.83
PAGE 20 CONTAINING CLAUSE 28.
EXHIBIT P5 TRUE COPY OF LETTER DATED 27.1.2020
ISSUED BY THE 2ND RESPONDENT TO THE
4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF LETTER DATED 27.2.2020
ISSUED BY THE 3RD RESPONDENT TO THE
2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF LETTER DATED 29.2.2020
ISSUED BY THE 2ND RESPONDENT TO THE
3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF LETTER DATED 2.7.2020
ISSUED BY THE 4TH RESPONDENT TO THE
2ND RESPONDENT.
SR