Kerala High Court
Greenworth Infrastructures (P) Ltd vs The State Of Kerala on 4 June, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
WP(C) No.26472/2020 1/9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
Tuesday, the 4th day of June 2024 / 14th Jyaishta, 1946
IA.NO.2/2022 IN WP(C) NO. 26472 OF 2020 (H)
APPLICANT/PETITIONER:
GREENWORTH INFRASTRUCTURES (P) LTD., BUILDING NO.33/102 E, (OLD) NEW
NO.42/3075, SOUMYA NAGAR ROAD, ALINCHUVADU, EDAPPALLY, KOCHI-682024,
REPRESENTED BY ITS DIRECTOR, P.J. JACOB, RESIDING AT PARAMBATHUSSERY
HOUSE, EDAPPALLY P.O., ERNAKULAM DISTRICT-682024.
RESPONDENTS/RESPONDENTS:
1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT
PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR, MINING AND GEOLOGY DEPARTMENT, DIRECTORATE OF MINING
AND GEOLOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004.
3. DISTRICT COLLECTOR, IDUKKI DISTRICT AT PAINAVU, IDUKKI-685584.
4. THE CHIEF ENGINEER, NATIONAL HIGHWAYS, THIRUVANANTHAPURAM-695033.
5. THE SUPERINTENDING ENGINEER, NATIONAL HIGHWAY, CENTRAL CIRCLE, BAY
UNDER THE BRIDGE, PONNURUNNI, VYTTILA, KOCHI-682019.
6. THE EXECUTIVE ENGINEER, NATIONAL HIGHWAY DIVISION,
MOOVATTUPUZHA-686664.
7. THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, IDUKKI AT
PAINAVU-685603.
8. THE DISTRICT GEOLOGIST, IDUKKI, MINI CIVIL STATION, THODUPUZHA,
IDUKKI-685584.
9. THE ASSISTANT EXECUTIVE ENGINEER, N.H. SUB DIVISION, DEVIKULAM,
IDUKKI DISTRICT-685613.
10. M/S. DINESHCHANDRA R AGRAVAL INFRACON (P) LTD THE GRAND MALL,
S.M.ROAD, AMBAWADI, AHMEDABAD-380015, REPRESENTED BY ITS MANAGING
DIRECTOR [ IMPLEADED AS PER ORDER DATED 26/07/2021 IN IA 4/2021].
11. UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE
GOVERNEMNT, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, CENTRAL
GOVERNMENT SECRETARIAT, NEW DELHI-110 001.
12. THE DIRECTOR GENERAL, (ROAD DEVELOPMENT & SS), MINISTRY OF SHIPPING,
ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, NO.1 PARLIAMENT
STREEET, NEW DELHI-110 001.
13. THE REGIONAL OFFICER, MINISTRY OF SHIPPING, ROAD TRANSPORT AND
HIGHWAYS, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM, PIN-695 033.
14. M/S.AYOLEEZA CONSULTANT (P) LTD., (JV) WITH MUKESH ASSOCIATES, FIRST
FLOOR, MCARD BANK BUILDING, RAJAKUMARI P.O., IDUKKI DISTRICT-685
619, REPRESENTED BY THEIR TEAM LEADER.[ADDL.R11 TO R14 IS IMPLEADED
AS PER ORDER DATED 11/3/2022 IN IA 1/22]
WP(C) No.26472/2020 2/9
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to allow amendment of
the Writ Petition as detailed herein:
PARTICULARS OF AMENDMENTS REQUIRED
1) In the Cause title of the docket delete '8' and substitute '13'
2) Delete the contents of the synopsis and chronology of events and
substitute
"The petitioner has been carrying out the works of widening of National
Highway -85 from Bodimettu to Munnar in 42.20km included in Exhibit P16
agreement dated 18-5-2017 executed between the respondents 10 and 11 on
back to back arrangement under a sub contract dated 21-7-2017. The
National Highway and land appurtenant thereto are absolutely vested in
the Central Government as stipulated in Section 3D of the National
Highways Act, 1956. Any survey, measurement, recording of levels, fixing
of boundary lines, taking trenches, digging, etc. are to be carried out
only by a person authorized by the Central Government as stipulated in
Section 3B of the National Highways Act. The 11th respondent is the
Engineer appointed for administering the contract, supervision of works,
fixing lines, levels, boundaries certification of quantities, etc.
The 10th respondent has paid credit value of Rs.20,10,80,004/- to
the Ministry of Road Transport and Highways for 4,20,028 cum of hard rock
required to be blasted and removed for widening of the National Highway
specified in Ext.P16 agreement and became the owner of the same and
1,16,048 cum of ordinary rock, with liberty to use the same in the works,
or elsewhere. None of the respondents 1 to 9 is authorized to conduct any
measurement of the National Highway work being carried out or to lay any
claim on the blasted rock obtained in widening of National Highway. The
Kerala Minor Mineral Concession Rules, 2015, have no application to the
blasted rock obtained in widening of National Highway. Exts. P4, P8 to
P11, P13 and P14 are absolutely illegal, unauthorized, without
jurisdiction, invalid, null and void and are in violation of the
fundamental rights of the members of the petitioner under Articles 14, 19
(1) (g) and 21 of the Constitution of India and liable to be quashed.
Hence the Writ Petition.
13-10-2020 Exhibit P11 recovery statement of Rs.1,79,79,680/-
13-1-2021 Ext. P14 recovery statement for Rs.94,39,384/-."
3) Page 3 Para 2 delete the last sentence and substitute
"None none of the respondents 1 to 9 could lay claim for payment of any
amount and such claims raised by the 8th respondent are illegal and
invalid."
WP(C) No.26472/2020 3/9
4) Page 4 Para 4 lines 4 to 5 delete words "as stipulated in the Kerala
Minor Mineral Concession Rules, 2015, (hereinafter the Rules)"
5) Page 4 Para 5 line 2 delete the words "towards price of royalty
payable to the Government."
6) Page 4 Para 5 line 2 delete the words "towards price/royalty payable
to the Government"
7) Page 4 para 5 line 10 delete the words on payment of price/royalty as
stipulated in Rule 106(2) of the Rules."
8) Page 4 Para 6 lines 1 and 2 delete the words "towards price/royalty
payable"
9) Page 5 para 6 line 7 delete the words "which would be paid"
10) Page 5 Para 6 line 7 immediately after Exhibit P7 add "which is
illegal, unauthorized, without jurisdiction, invalid and null and void
since the Kerala Land Conservancy Rules are not applicable to the
National Highway and land appurtenant thereto absolutely vested in the
Central Government."
11) Page 5 delete Para 7 and substitute
"Upon payment of credit value of Rs.20,10,80,004/- for 4,20,028 cum of
hard rock required to be blasted and removed for widening of the National
Highway specified in Exhibit P16, the 10th respondent, has become the
owner of the blasted rock with right, title and interest to use the same
anywhere in the National Highway, or elsewhere, to facilitate continuance
of widening works to obtain formation width of 13m to 20m with 36 bus
bays, bus shelters, truck parking bays, view points, toll plaza, side
drains, etc. without any liability for payment of any other amount
towards value of the same. The claims raised by the respondents 1 to 9
over the blasted rock obtained in widening of National Highway, are
illegal, untenable, fictitious and invalid."
12) Page 5 Para 8 line 9 strike off "true copy of which"
13) Page 5 Para 8 lines 11 to 14 delete the words "and conveyed and
removed by the petitioner from N.H. stretch for carrying out the widening
works of the National Highway, as instructed in the Minutes of Meeting
dated 19-12-2019 with factor of 1.35".
14) Page 6 Para 10 line 4 delete the word "Rules" and substitute
"provisions of the National Highways Act, 1956"
15) Page 6 para 10 line 7 add immediately after the principles of natural
justice"
16) Page 6 Para 10 line 10 immediately after the word void and add
"The petitioner has not conveyed any portion of the slipped quantity of
WP(C) No.26472/2020 4/9
rock in the gap portion of the National Highway for want of transit pass
for removal of the same."
17) Page 7 Para 11 line 8 delete the word "Rules" and substitute
"provisions of the National Highways Act.
18) Page 7 para 11 line 9 add immediately after the works void"
"Without reference to the provisions of the National Highways Act, 1956,
the petitioner submitted Exhibit P12 with mistaken admission in respect
of revenue lands in Paras 2, 3, 5, 8 etc. in it, which was corrected,
withdrawn, explained away and cancelled by letter dated 22-2-2022, true
copy of which is herewith produced and marked Exhibit P12(a) The mistaken
admissions of the petitioner would not confer right on the respondents 1
to 9 to raise illegal claims over the blasted rock obtained in the
widening works of the National Highway.
19) Page 7 Para 11 A lines 6 to 8 delete the words "but only used a
portion of 44747 cum of rock blasted in N.H.85 for which royalty of
Rs.80,44,584/- was paid on 6- 2-2020 disclosed in Exhibit P4 chalan
receipt and the balance quantity brought from Tamil Nadu and by local
purchase"
20) Page 8 Para 11A add at the end of line 16
"The whole amount of Rs.80,54,554/- (+) Rs. 17,77,620/- ile.
Rs.98,32,174/-illegally got remitted towards royalty by the 8th
respondent, not payable by the petitioner, is to be refunded to it with
interest at 9.50%/annum from the respective date of remittance till
payment
21) Pages 8-10 delete the contents of Para 12 and substitute
"For 4,20,028 cum of hard rock required to be blasted and removed for
widening of the National Highway from the land appurtenant thereto
absolutely vested in the Central Government, as stipulated in Section 3D
of the Act, for which the 10th respondent has paid credit value of
Rs.20,10,80,004/-, no amount is payable by the petitioner. Exhibits P10,
P11 and P13 passed by the 6th respondent, without notice and opportunity
of being heard, under the Kerala Minor Mineral Concession Rules, 2015,
which are not at all applicable to the widening works of National
Highway, are without Jurisdiction, unauthorized, illegal, arbitrary,
invalid and null and void.
22) Page 10 immediately after the contents of para 12 add para 12A
12A A true copy of the tender notice, letter of acceptance and schedule
of works of CRF-2018-2019-improvements to Illickal-Pallikunnu -
Muthuvankunnu Road in Idukki, Issued to the petitioner by the 5th
respondent, is herewith produced and marked Exhibit P15 A true copy of
the relevant portion of Agreement No.2/CE/NH/Kerala/2017-2018 dated
18-5-2017 executed between the respondents 10 and 11, including the sub
WP(C) No.26472/2020 5/9
contract agreement dated 21-7-2017 is herewith produced and collectively
marked Exhibit P16. The 9th respondent directed the petitioner to furnish
particulars of the quantity of stone materials used for carrying out work
specified in Exhibit P1 by letters dated 21-4-2021 and 10-6-2021 and
reply dated 25-8-2021 was sent by the petitioner to the respondents 1, 4,
5 and 6, with copy to the 9 respondent, true copy of which is herewith
produced and marked Exhibit P17. The original bills for procurement of
wet mix macadam, GSB, rubble and stone aggregates on payment of GST to
the authorities in Tamil Nadu, including the stocked quantity of 44747.52
cum with total stock of 65721.80 cum and use of 43221 cum out of the same
were highlighted. Exhibits P8 to P11, P13 and P14 are issued pretending
unawareness of procurement of stone materials by the petitioner from
Tamil Nadu and non- issuance of transit pass for conveyance of any
portion of the slipped quantity and are Illegal.
23) Page 10 delete ground A and substitute
"A. Exts.P8 to P11, P13 and P14 are absolutely illegal, unauthorized,
without jurisdiction, arbitrary, invalid and null and void and liable to
be quashed by this Hon. court."
24) Page 11 delete ground CA and substitute
"The Recovery of Rs.94,39,384/- on 13-1-2021 from Exhibit P14 allegedly
towards price of 29627 cum of slipped rock from the gap portion of NH 85,
not transported by the petitioner to the site for carrying out work
specified in Exhibit P1 for want of transit pass, is absolutely illegal,
without jurisdiction, unauthorized, arbitrary, invalid, null and void and
liable to be quashed.
25) Page 11 delete ground CB and substitute
"Exhibits P8 to P11 P13 and P14 are illegal, without jurisdiction and
founded in fraud inasmuch as no transit pass was issued for
transportation of any portion of the slipped quantity from N.H. 85 and
issued in willful suppression of the fact of use of a portion 44747.52
cum and the materials purchased from Tamil Nadu disclosed in Exhibit P17,
rendering them liable to be quashed by this Hon. Court."
26) Page 11 delete ground D and substitute
"The claims raised by the respondents 1 to 9 in respect of blasted rock
obtained in the widening work of National Highway through the land
appurtenant thereto absolutely vested in the Central Government, are
illegal, fictitious, untenable and Invalid rendering Exts.P4, P8 to P11,
P13 and P14, liable to be quashed by this Hon. Court."
27) Page 12 delete ground E and substitute
"For the blasted rock obtained in widening of National Highway through
the land appurtenant thereto absolutely vested in the Central Government
Kerala Minor and Minerals Rules, 2015 have no application and therefore,
WP(C) No.26472/2020 6/9
Exhibits P8 to P11, P13 and 14 are illegal, unauthorized, without
jurisdiction, arbitrary, Invalid and liable to be quashed by this Hon.
Court."
28) Page 12 Delete ground F and substitute:
"Upon payment of credit value of Rs.20,10,80,004/- for 4,20,028 cum of
hard rock required to be blasted and removed as stipulated in Exhibit P16
agreement, with liberty to use that quantity along with 1,10,048 cum of
ordinary rock specified in it, the 10th respondent has become the owner
of the same with right, title and interest for use of the same anywhere
in the alignment, or elsewhere without payment of any amount to the
respondents 1 to 9 and therefore Exhibits P8 to P11, P13 and P14 are
illegal, unauthorized, without jurisdiction, invalid and null and void
and liable to be quashed by this Hon. Court"
29) Page 13 delete ground G and substitute
"Exhibit P3 is absolutely illegal and without jurisdiction in demanding
payment of Rs.80,54,554/- for 44747.52 cum of hard rock instructed to be
removed from the alignment of National Highway to facilitate widening
work included in 4,20,028 cum of hard rock for which credit value of
Rs.20,10,80,004/ was paid disclosed in Exhibit P16 for use that quantity
anywhere in the alignment or elsewhere for want of stock yard, for
substitution of the same in the work by purchase of that quantity from
Tamil Nadu for carrying out the works of the National Highway, rendering
it liable to be quashed by this Hon. Court, entitling the petitioner for
refund of Rs.80,44,554/- with interest at 9.50%/annum from 6-2-2020
onwards till payment.
30) Page 13 add immediately after ground H add ground I
The petitioner is entitled to a declaration that respondents are bound to
refund Rs. 80,44,554/- got remitted on 6-2-2020 allegedly towards
royalty/price of 44747.52 cum of hard rock by. Exhibit P3 forming part of
4,20,028cum of hard rock required to be blasted and removed for widening
of the National Highway from the land appurtenant to the same absolutely
vested in the Central Government, for which credit value of Rs
20,10,80,004/- was paid, thereby the 10th respondent became the owner of
the same for use of the same anywhere in the alignment or elsewhere in
accordance with the agreement and for refund of Rs.17,77,620/- got
remitted on 4-3- 2020 for 29627 cum of slipped boulders in the gap
portion of the National Highway, not conveyed for want of transit pass,
both with interest at 9.50/annum compounded monthly as is charged by the
financier bank from 6-2-2020 and 4-3-2020 as the case may be till
payment, or realization.
31) Page 14 delete Relief (i) and substitute
"Issue a writ of certiorari, or any other appropriate writ, or order, or
direction to the respondents calling for the records of the case leading
WP(C) No.26472/2020 7/9
up to Exhibit P17 and quash Exhibit P4, P6, P8 to P11, P13 and P14.
32) Page 14 delete relief (ii) and substitute
"declare that Exhibits P4, P8 to P11, P13 and P14 in respect of blasted
rock obtained in widening of National Highway through the land
appurtenant thereto absolutely vested in the Central Government, in
accordance with Section 3D of the Act, are illegal, unauthorized, without
jurisdiction, unauthorized,, invalid and null and void.
30) Page 14 delete Relief (iii) and substitute
"declare that the respondents are bound to refund Rs.1,79,79,680/-
illegally recovered from Exhibit P11 and Rs.94,39,384/- from Exhibit P14
totaling to Rs.2,74,19,164/-, allegedly towards cost of slipped quantity
of rock, not removed by the petitioner for want of transit pass and not
required for the works in Exhibit P1 in view of the particulars of
procurement of stone materials included in Exhibit P17, with surplus
quantity in stock with the petitioner
33) Delete Relief (iv) and substitute
"issue a writ of mandamus, or any other appropriate writ, or order, or
direction to the 6th respondent requiring to forthwith release and refund
Rs.1,79,79,680/- illegally recovered from Exhibit P1 bill and Rs.
94,39,384/ unlawfully deducted from Exhibit P14, without notice and
opportunity of being heard to the petitioner in violation of the
principles of natural justice.
34) Page 15 Delete relief (v) and substitute
"issue a writ of prohibition, or any other appropriate writ, or order, or
direction to the respondents interdicting them from in any way recovering
any amount towards cost of blasted rock obtained in widening of National
Highway stretch through land appurtenant thereto absolutely vested in the
Central Government including 4,20,028 cum of hard rock for which credit
value of Rs.20,10,80,004/- was paid by the 10th respondent."
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the
arguments of M/S K.BABU THOMAS, SMT.MARYKUTTY BABU, Advocates for the
petitioner in IA/WP(C), GOVERNMENT PLEADER for respondents 1 to 9 in
IA/WP(C), ASG OF INDIA for respondents 11 to 13 in IA/WP(C) and of M/S
SURYA MOHAN P, VENUGOPAL ABHAY for the 14th respondent in IA/WP(C), the
court passed the following:
WP(C) No.26472/2020 8/9
ORDER
Petitioner seeks to amend the writ petition.
Allowed.
Petitioner to produce an amended copy of the writ petition.
Sd/- T.R.RAVI JUDGE 04-06-2024 /True Copy/ Assistant Registrar WP(C) No.26472/2020 9/9 APPENDIX OF WP(C) 26472/2020 EXHIBIT P1 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE MEETING AND DECISION OF THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF NOTICE OF 8TH RESPONDENT DEMANDING PAYMENT OF PRICE AND ROYALTY OF RS.80,4,554/- FOR 44747.52 CUM. EXHIBIT P4 TRUE COPY OF THE RECEIPT FOR PAYMENT OF RS.80,44,554. EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT FOR REMOVAL OF 29627 CUM.
EXHIBIT P6 TRUE COPY OF RECEIPT FOR PAYMENT OF ROYALTY AND PRICE OF RS. 17,77,620/- FOR 29,627 CUM.
EXHIBIT P7 TRUE COPY OF LETTER OF THE 8TH RESPONDENT DEMANDING RS.
125/CUM.
EXHIBIT P8 TRUE COPY OF LETTER OF THE 4TH RESPONDENT TO THE 6TH RESPONDENT FOR RECOVERY AT DEPARTMENTAL RATE. EXHIBIT P9 TRUE COPY OF LETTER OF THE 9TH RESPONDENT FOR ILLEGAL RECOVERY OF RS. 3,59,59,560/- FOR 23127.111. CUM. Exhibit P17 TRUE COPY OF LETTER SENT BY THE PETITIONER TO THE RESPONDENTS WITH DETAIL OF QUANTITY PURCHASED AND GST PAID Exhibit P12(a) TRUE COPY OF LETTER CANCELLING EXHIBIT P12 Exhibit P15 TRUE COPY OF TENDER NOTICE, LETTER OF ACCEPTANCE AND SCHEDULE OF WORKS ISSUED TO THE PETITIONER Exhibit P16 TRUE COPY OF RELEVANT PORTION OF AGREEMENT NO .2/CE/NH/KERALA/2017-2018 AND SUBCONTRACT Exhibit P17 TRUE COPY OF REPLY OF THE PETITIONER TO THE LETTER OF THE 9TH RESPONDENT WITH PARTICULARS OF PURCHASE OF STONE AGGREGATES Exhibit P18 TRUE COPY OF RECONCILIATION STATEMENT ISSUED UNDER RIGHT TO INFORMATION ACT, 2005 DATED 7-12-2023 Exhibit P10 TRUE COPY OF THE ILLEGAL ORDER OF THE 6TH RESPONDENT FOR RECOVERY OF RS.3,77,57,538/- FOR 31,221.60 CUM Exhibit P11 TRUE COPY OF THE BILL ABSTRACT AND RECOVERY OF RS.1,79,79,680/-
Exhibit P12 COPY OF THE REPRESENTATION OF THE PETITIONER Exhibit P13 TRUE COPY OF THE ILLEGAL LETTER OF THE 6TH RESPONDENT Exhibit P14 TRUE COPY OF THE RECOVERY STATEMENT FOR RS.94,39,384/-