Kerala High Court
M.Aboobakkar vs Agali Grama Panchayth on 21 August, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937
WP(C).No. 2686 of 2009 (T)
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PETITIONER:
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M.ABOOBAKKAR, AGED 56 YEARS
S/O. LATE KUNJALIKUTTY HAJI, THEKKETHODY HOUSE
PERUMUGHAM P.O., FEROKE, KOZHIKODE DIST.
BY ADV. SRI.V.J.JAMES
RESPONDENTS:
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1. AGALI GRAMA PANCHAYTH,
REPRESENTED BY THE SPECIAL GRADE SECRETARY
AGALI GRAMA PANCHAYATH, AGALI P.O., PALAKKAD DISTRICT.
2. THE CHIEF ENGINEER, LOCAL SELF
GOVERNMENT DEPARTMENT (PUBLIC WORKS)
THIRUVANANTHAPURAM.
3. THE STATE OF KERALA REPRESENTED BY
GOVT. SECRETARY, LOCAL SELF GOVT. DEPARTMENT
(PUBLIC WORKS), THIRUVANANTHAPURAM.
R1 BY ADV. SRI.N.RAGHURAJ
R1 BY ADV. SMT.K.AMMINIKUTTY
R1 BY ADV. SRI.A.V.RAVI
R2 & R3 BY GOVERNMENT PLEADER SRI.REJI JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 2686 of 2009 (T)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: REVISED ESTIMATE DTD. 30.1.2004 APPROVED BY R2.
EX.P2: RATE FIXED IN THE YEAR 1999 AND CERTIFIED BY THE CHIEF ENGINEER
(ROADS & BRIDGES), THIRUVANANTHAPURAM FOR PROTECTIVE BLASTING.
EXT.P3: LETTER OF THE ASST. ENGINEER RECOMMENDING CHISELING OF ROCK.
EXT.P4: LETTER DTD. 2.8.04 ISSUED BY R1 DIRECTING THE PETITIONER TO DUMP
BLASTED STONES AND ROCKS IN THE PANCHAYATH OFFICE COMPOUND OR NEAR THE
AGALI PUMP HOUSE.
EXT.P5: CERTIFICATE DTD. 5.5.06 ISSUED THE VILLAGE OFFICER AGALI
REGARDING THE DISTANCE OF THE AGALI BUS STAND FROM THE AGALI PANCHAYATH
OFFICE COMPOUND AND AGALI PUMP HOUSE.
EXT.P-6: A DETAILED BREAK UP OF THE CLAIM AMOUNT SUBMITTED BY THE
PETITIONER BEFORE R1.
EXT.P7: REPRESENTATION DTD.3.8.2005 SUBMITTED BY THE PETITIONER TO THE
RESPONDENTS.
EXT.P8: JUDGMENT DATED 21.8.2006 OF THE HON'BLE HIGH COURT OF KERALA IN
W.P(C).NO.15234/2006.
EXT.P9: LETTER DTD. 10.07.2007 SENT BY R1 TO THE PETITIONER.
EXT.P10: REPORT OF THE TECHNICAL COMMITTEE DTD. 24.7.2008.
EXT.P11: COMMUNICATION NO.D6/DL TAG/07-08 DTD. 14.3.2008 OF THE
EXECUTIVE ENGINEER TO THE CONVENER DLTAG, DISTRICT PANCHAYATH, PALAKKAD.
EXT.P12: COMMUNICATION DTD. 1.8.2003 ISSUED BY THE ASST. ENGINEER, M.I.
SECTION IRRIGATION DEPARTMENT, AGALI, TO R1.
EXT.P13
SERIES: COPIES OF LETTERS SENT BY THE PETITIONER TO R1 REQUESTING TO
EAR MARK LOCATION TO DEPOSIT ROCK AND SOIL REMOVED FROM THE WORK SITE AT
THE BUS STAND UNDER CONSTRUCTION.
Ext.P14: NOTICE DTD. 2.12.2010 ISSUED BY THE STATE BANK OF INDIA PALAKKAD
U/S.13(2) OF THE SARFAESI ACT.
RESPONDENTS' EXHIBITS:
EXT.R2(a): RESOLUTION OF AGALI GRAMA PANCHAYATH DTD. 16.10.2003.
EXT.R2(b): LETTER OF THE DISTRICT LEVEL TECHNICAL COMMITTEE NO.D2-100/05-
06 EE/LSGD/PKD DTD. 24.7.2008.
// TRUE COPY //
P.A TO JUDGE.
ALEXANDER THOMAS, J.
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W.P(C).No.2686 Of 2009
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Dated this the 10th day of February, 2016.
J U D G M E N T
The petitioner, who is a Grade III PWD (Public Works Department) Contractor, had entered into an agreement dated 12.3.2003 with the 1st respondent-Agali Grama Panchayat, Palakkad district, to construct a Panchayat Bustand at Agali for a sum of Rs.14,90,244/-. As per the work estimate, the petitioner had to level a hilly terrain by removal of soil and and rock and then to level and tar the same. The quantity of rock to be blasted and removed was estimated to be only 45 cubic meters. Consequently, it was estimated that the remnants of such blasted rock are to be dumped to a place, which is at a distance within 45 meters from the work site in question. (This distance of 45 meters is described as the "lead factor" in the estimate of the work in question). But soon it was discovered that the actual quantity of rock to be blasted and removed comes to about 4500 cubic meters, which is about 100 times the estimate in that regard (45 cubic meters). Accordingly, the 2nd respondent-Chief Engineer, Local Self Government Department (Public Works), who is the competent authority, issued the ::2::
W.P(C).No.2686 Of 2009 revised estimate for the work, as per which, it was estimated in Ext.P-1 that the quantity of medium rock to be blasted and removed for the work is 4360 cubic meters (see internal page 4 of Ext.P-1 on page 15 of the paper book). In the revised estimate, the 1st respondent sanctioned the rate for protective blasting of medium rock only at the rate of Rs. 2564/10m3 as can be seen form Ext.P-1 (see page 12 of the paper book.)
2. The main case of the petitioner is that the rate sanctioned by the 2nd respondent at the rate of Rs. 2564/10m3 for protective blasting of medium rock was done unilaterally by the 2nd respondent without consulting the petitioner and without following the norms and rates consistently followed in the Public Works Department of the Government of Kerala, for the period in question. The petitioner continued the work. The petitioner has submitted representations in that regard as can be seen from Ext.P-12 dated 1.8.2003, Ext.P-13 (dated 11.6.2004), etc. The petitioner has also averred that during the course of the work, a lot of blasted medium rock had to be removed from the site and in view of the huge increase of the quantity of blasted rock by about 100 times compared to the original estimate, there was no place in the immediate vicinity to dump such blasted rock remnants.
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W.P(C).No.2686 Of 2009 As the original estimate conceived only of hardly about 45 cubic meters of rock to be blasted, the lead factor was also limited to 50 meters from the work site. According to the petitioner, when he attempted to deposit the blasted rock remnants coming to huge quantities to the immediately nearby place to the work site in question, this was stiffly opposed by the local inhabitants. As there was no Panchayat land in the immediate vicinity of the work site for dumping such remnants, he had repeatedly requested the Panchayat authorities to indicate the area/lands belonging to the Panchayat, where he could dump such blasted remnants, without any obstructions, as otherwise he would face stiff opposition either from the land owners or from the public. Since no immediate action was forthcoming from the Panchayat authorities, the petitioner had to dump such blasted remnants to distances ranging from 2 kms. to 7 kms. and more from the work site in question, for which he had to incur huge transportation expenses. The petitioner had submitted representations as the one in Ext.P-12 dated 1.8.2003, Ext.P-13(1) dated 11.6.2004, Ext.P-13(3) dated 27.7.2004, Ext.P-13(4) dated 19.5.2004, Ext.P-13(5) dated 26.5.2004 to the respondent Panchayat authorities requesting that immediate actions should be taken in this regard and to indicate the places where he should dump the blasted remnants.
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W.P(C).No.2686 Of 2009
3. Finally the petitioner received Ext.P-4 communication dated 2.8.2004 from the respondent Panchayat (therein reference is made to Ext.P-13 representation dated 27.7.2004), wherein it is informed that the petitioner could dump such blasted remnants either in the compound of the Panchayat office or in the vicinity of the Agali pump house, etc. It is also the case of the petitioner that he had to undertake the work of chiseling. It is also the case of the petitioner that not all the rocks in the site could be removed by blasting and therefore he had to undertake the work of removing them by resorting to chiseling. It is the case of the petitioner that the fact that the petitioner has done chiseling work for removal of such rocks is evident from para 2 of Ext.P-11 dated 14.3.2008 issued by none other than the Executive Engineer concerned. The construction of the bus stand was completed in all respects by the petitioner and the bus stand was formally inaugurated by the respondent Panchayat authorities on 25.2.2005.
But while passing the final bill of the work in question, the 1st respondent Panchayat authorities had taken into account only the rate of Rs. 2564/10m3 for medium rock blasting instead of the rates approved by the Public Works Department of the Government of Kerala as per Ext.P-2 and further that they had refused to pay any amount ::5::
W.P(C).No.2686 Of 2009 for the huge variation in the lead factor, which resulted in exorbitant transportation expenses for the petitioner in removal of such blasted remnants. It is also the grievance of the petitioner that he was not paid any amount for the chiseling works done by him on the pretext that the quantity of such chiseling has not been recorded in the measurement book (M Book). The petitioner had initially submitted Ext.P-3 representation dated 1.8.2003 after the commencement of the work. Subsequently, the petitioner had submitted Ext.P-6 representation dated 4.6.2005 and Ext.P-7 representation dated 3.8.2005 to the 1st respondent Agali Panchayat for ventilation of his grievances, as stated above. Since no further action was forthcoming from the 1st respondent, the petitioner was constrained to approach this Court by filing a Writ Petition (Civil) as W.P.(C).No. 15234/2006. This Court as per Ext.P-8 judgment rendered on 21.8.2006 had finally disposed of W.P.(C).No. 15234/2006 directing that the 1st respondent will consider the grievances of the petitioner projected in Ext.P-10 therein (representation dated 3.8.2005 produced as Ext.P-7 herein) and to take a decision thereon at the earliest. In compliance with the decision issued by this Court in Ext.P-8 judgment, the 1st respondent Panchayat informed the petitioner as per Ext.P-9 communication dated ::6::
W.P(C).No.2686 Of 2009 10.10.2007 that a technical advisory committee consisting of experts has been constituted by the Panchayat to examine the grievances of the petitioner and to make necessary recommendations to the Panchayat in that regard.
4. Thereafter, the matter was examined by the technical advisory committee consisting the Executive Engineer, Local Self Government Department, Palakkad District Panchayat, a retired Executive Engineer, who is the Chairman of the DLTAG Sub Committee on roads, buildings and bridges, and the Assistant Engineer attached to the Agali Panchayat, etc. After consideration of the matter, the said technical committee gave their findings and recommendations to the 1st respondent Panchayat as per Ext.P-10 dated 24.7.2008. The request of the petitioner for enhancement of the rate for protective blasting of medium rocks from Rs. 2564/10m3 was refused on the ground that said rate was the one sanctioned by the competent authority in Ext.P-1 revised estimate. The request of the petitioner for extra payment of the chiseling work done by him was also refused on the ground that the measurements in that regard were not entered into in the measurement book (M Book). However, the technical committee found in internal page 2 of Ext.P-10 that as per the calculation from the measurement ::7::
W.P(C).No.2686 Of 2009 book maintained by the authorised engineer of the Agali Panchayat, 5584.96 cubic meters of earth and rock has been removed for distances for one kilometers and more and that as per the PWD Schedule of rates for the year, 1999, the petitioner is entitled for a further amount of Rs. 3,23,928/- calculated at the rate of Rs. 580/10m3 in that regard. It is also incidentally observed therein that on examination of the Panchayat office pump house, etc. and its immediate vicinity, it could not identified that the above quantity of 5584.96 cubic meters have been deposited in those places. In spite of the aforestated recommendations in internal page 2 of Ext.P-10 by the technical advisory committee, the 1st respondent Panchayat has refused to make any payment for the transportation involved in the dumping of such huge quantities of blasted rock remnants. It is in the light of the aforestated facts and circumstances that the petitioner has preferred the instant Writ Petition (Civil) without the following prayers:
"i Issue a writ of Mandamus or other appropriate Writ, Order or Direction, commanding the 1st respondent to disburse Rs.323928/- recommended by the Technical Committee to be paid to the petitioner with interest @ 12% from 25.2.2005, the date of completion of the contract work, till date of payment. ii. To declare that the rates fixed by the 2nd respondent in the revised estimate is arbitrary and in violation to the rates fixed by the Government in the year 1999, and direct the 1st respondent to disburse an additional amount of Rs.390048.00 being the difference ::8::
W.P(C).No.2686 Of 2009 in amount due to the petitioner between the rate fixed by the Government and the rate fixed by the 2nd respondent for protected blasting and removing of 4225.88 cubic meters of medium rock, as certified by the Technical Committee, with interest @ 12% from 25.2.2005 the date of completion of the contract work, till date of payment.
iii. To declare that the petitioner is entitled for additional remuneration fro (sic) removing 30 cubic meters of rock by chiseling as reported in Exhibit P-11 communication by the executive Engineer and further direct the 1st respondent to remunerate the petitioner as per the Govt. approved rate.
iv. To award the cost of this proceedings.
v. To order such other relief as this Hon'ble Court deems fit and proper
in the facts and circumstances of the case."
5. The 1st respondent Panchayat has filed a counter affidavit dated 28.9.2009 resisting the pleas of the petitioner. It is stated in paragraph 4 thereof that an amount of Rs.22,00,224/- (Rupees twenty two lakhs two hundred and twenty four only) has been paid to the petitioner based on the revised estimate approved by the 2nd respondent Chief Engineer. It is further stated that the 1st respondent Panchayat has no authority to disburse any amount other than that is approved by the PWD in the matter of construction works. That the amount already approved by the 2nd respondent Chief Engineer has already been disbursed to the petitioner. The claim of the petitioner that he was constrained to remove the rock by chiseling is denied. The claim of the petitioner regarding transportation of blasted remnants to distances beyond 2 to 7 kilometers, etc. is also denied. It is further pointed out ::9::
W.P(C).No.2686 Of 2009 that it is observed in internal page 2 of Ext.P-10 that the Executive Engineer, who inspected the spot, the quantity of 5548.95 m3 of rocks or soil deposit could not be identified in the compound of the 1st respondent Panchayat and that therefore he is not entitled to get any amount as claimed in the Writ Petition based on the recommendation of the technical committee in Ext.P-10. That as per the Measurement Book and bill the petitioner has already accepted the amount from the 1st respondent without any protest and that now the intention of the petitioner is to extract extra money from the Panchayat by making wrong claims. The petitioner reliance on Ext.P-2 for payment at the rates approved by the Public Works Department for blasting of medium rocks is also denied by stating that it is not known as to under what circumstances Ext.P-2 has been issued and as to whether the same is applicable to medium rock or not and that the said document cannot form the basis for the claim made by the petitioner in that regard. Further that the amount approved by the 2nd respondent Chief Engineer has been disbursed to the petitioner on all counts including that for blasting of medium rocks, etc.
6. The 2nd respondent Chief Engineer LSG Department (Public Works) has also sworn to a counter affidavit dated 4.12.2009. [Copy of ::10::
W.P(C).No.2686 Of 2009 Ext.P-10 proceedings dated 24.7.2008 has been produced in the said counter affidavit as Ext.R-2(a)]. It is reiterated therein that the claims for chiseling work and the extra amount claimed for blasting of medium rock based on Ext.P-2 rates cannot be given to the petitioner. In paragraph 6 of the counter affidavit it is stated that condition No.31 attached to the agreement that the payments in regard to new works/extra work are to be fixed based on the rates applicable in the Public Works Department and that it is based on this condition that the Chief Engineer had sanctioned unit rate for protective blasting medium rock as per Ext.P-1. It is again reiterated that the Measurement Book (M Book) has not recorded any work in relation to chiseling work and that therefore the payment in that regard cannot be considered. That the unit rate of protective blasting in medium rock is seen sanctioned for blasting operations and stacking the same within the initial lead and lift and the matter for dumping the remnants had to be assessed by the agreement authority, (ie., implementing officer only).
7. As regards the contention of the petitioner based on by placing reliance on Ext.P-2 rates of the Public Works Department, it is averred in para 10 of the said counter affidavit that the unit rate for protective blasting in hard rock has been seen approved by the PWD.
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W.P(C).No.2686 Of 2009 But the unit rate for protective blasting in medium rock was sanctioned by the Chief Engineer, LSGD based on the prevailing PWD rates, etc.
8. Heard Sri.V.J.James, learned counsel appearing for the petitioner, Sri.N.Raghuraj, learned Standing Counsel appearing for the 1st respondent Agali Panchayat and the learned Government Pleader appearing for the 2nd respondent Chief Engineer, LSG Department and the 3rd respondent State.
9. The scope for interference in judicial review in matters arising out of the contractual obligations is now well settled by judicial rulings. A Full Bench of this Court in the case State of Kerala v. Anil reported in 2002 (1) KLT 317 (FB), has clearly held therein that it cannot be said in absolute terms that a Writ Petition is not maintainable in contractual matters including where the contractors seek enforcement of the obligation on the part of the State to pay the bill amounts admitted by the State. All the activities of the State are in public interest and for public good. Therefore, there is public law element in contracts where State is a party and it naturally follows that there is public duty. Above all, any State action in that regard is liable to be tested on the touchstone of Art.14 of the Constitution of India.
Essentially, the only limitation of the High Court is the self-imposed ::12::
W.P(C).No.2686 Of 2009 restriction. A few relevant factors in exercising the self-imposed limitation under Art.226 of the Constitution of India in the matter of payment of contractors' bill have been illustrated by the Full Bench as follows:-
(1) When there is no disputed question of fact requiring adjudication on detailed evidence.
(2) When no alternate forum is provided in the resolution of any disputes pertaining to a contract.
(3) When claim by one party is not contested by the other and the contest does not require adjudication requiring any detailed enquiry into facts.
It would be profitable to refer to paragraph 18 of the aforestated ruling, which reads as follows:
"18. Guided by the salutory principles in the subject matter and as particularly laid down by the Supreme Court, and applying the same on the issue referred to us, it has to be held that it cannot be said in absolute terms that a Writ Petition is not maintainable in contractual matters including where the Contractors seek enforcement of the obligation on the part of the State to pay the bill amounts admitted by the State. Though couched in different terms, all the decisions referred by us above lead to the said conclusion. All the activities of the State are in public interest and for public good. There is public law element in contracts where State is a party, and it naturally follows that there is public duty. And above all, any State action is liable to be tested on the touchstone of Art. 14 of the Constitution of India. Essentially, the only limitation of the High Court is the self imposed restriction. A few relevant factors in exercising the self-imposed limitations under Art. 226 of the Constitution of India in the matter of payment of Contractors' bills are:
(1) When there is no disputed question of fact requiring adjudication on detailed evidence.
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W.P(C).No.2686 Of 2009 (2) When no alternate form is provided in the resolution of any disputes pertaining to a contract.
(3) When claim by one party is not contested by the other and the contest does not require adjudication requiring detailed enquiry into facts."
10. During the course of hearing Sri.V.J.James, learned counsel appearing for the petitioner, fairly submitted that the petitioner is not pressing his claims with regard to the payments claimed for the chiseling of the rocks. He would at the same time submit that, the fact that the petitioner was constrained to do chiseling work has been fully acknowledged by the Executive Engineer in para 2 of Ext.P-11 dated 14.3.2008. But that, the authorities concerned had unfairly refused to record the actual quantity of chiseling work done by the petitioner in the Measurement Book and therefore, in view of lack of records in that regard in M-Book he would not press the claim for chiseling work.
11. Therefore, the only two remaining aspects to be considered by this Court are as to the claim of the petitioner for extra payment for medium rock blasting on the basis of Ext.P-2 rates approved by the Public Works Department and the other matter to be examined by this Court is as to the extra payments claimed by the petitioner for ::14::
W.P(C).No.2686 Of 2009 transportation of the blasted rock remnants in terms of the recommendations of the Technical Committee given on page No.2 of Ext.P-10.
12. As regards the first aspect is concerned, the following matters are relevant:- The matters relating to execution of public works in Grama Panchayath constituted by the Kerala Panchayath Raj Act, 1994 are governed by statutory rules framed under the said Act, captioned as the Kerala Panchayath Raj (Execution of Public Works) Rules, 1997. Rule 18 thereof reads as follows:
"Rule 18: Observance of procedure in the Government Department.- Save as otherwise expressly provided in these rules, the rules and methods adopted in the Public Works Department of Government in the matter of preparation fo estimates and plan or works, invitation of tender, execution of work, payment for such works, system of accounting etc. shall be followed in respect of execution of public works."
As stated in para 6 of the counter affidavit dated 4.12.2009 of the 2nd respondent-Chief Engineer, LSGD, condition No.31 attached to the agreement in question provided as follows:
"IaD_OO_H" dIUcJ_5{af? H_xAa5Z ( 5x^ ?O?_O_W
)ZfA^U_:n_GaU H_xAa5Z D_GfM?aJaKD_Hm %U\"O_:n_GaU
fI^DaNx^NJm H_xAa5Z %HaXx_:n^O_x_Aa" H_Vm:O_Aa5." The said condition No.31 broadly provides that the rates for the new items/additional items of work will be regulated by the rates followed in the Public Works Department of the Government of Kerala. Therefore, ::15::
W.P(C).No.2686 Of 2009 if the rate approved in Ext.P-1 for the blasting of medium rock is in variance from the one applicable to PWD of Government of Kerala, then such action of the respondents would certainly be ultra-vires and illegal as it would be in violation of the statutory provisions contained in Rule 18 of the Kerala Panchayath Raj (Execution of Public Works) Rules, 1997. The case of the petitioner is that the rate of Rs.2564/10m3 fixed in Ext.P-1 by the 2nd respondent-Chief Engineer, LSGD, has been decided unilaterally without consulting the petitioner and in variance from the norms and rates applicable in the Public Works Department at the relevant time. Learned counsel for the petitioner and the learned counsel for the 1st respondent-Panchayath would submit that as per serial No.1 of Ext.P-1 (on page 15 of paper book), the total quantity of medium rock blasted is 4360m3 and the rate approved by the 2nd respondent in that regard is Rs.2,564/10m3. However, according to the petitioner, Ext.P-2 as certified by the competent Assistant Executive Engineer (Technical) in the Office of the Chief Engineer (Roads and Bridges), Government of Kerala, it can be seen that the rate for protective blasting for the relevant period in question is Rs.3,487/10m3 and not Rs.2,564/10m3 as fixed unilaterally in Ext.P-1. The learned Government Pleader concerned was requested by this Court to get ::16::
W.P(C).No.2686 Of 2009 instructions from the Public Works Departments as to whether the approved rate in the PWD as per the PWD Schedule of Rates, 1999 for medium rock blasting is Rs.3,487/10m3 as certified in Ext.P-2. The learned Government Pleader has made available some of the pages in PWD Schedule of Rates, 1999 and copies of the same have been made available to the learned counsel for the petitioner and the learned counsel for the 1st respondent. On a perusal of the papers made available before this Court, no rate is seen mentioned for rock blasting, including medium rock blasting, in the papers ow made available by the Government Pleader before this Court. The 1st respondent- Panchayath has stated in para 6 of their counter affidavit dated 28.9.2009 as follows:
"6. With regard to the averments in Para 5 of the writ petition it is submitted that Ext.P2 document produced by the petitioner does not reveal under what circumstance the same has been issued and whether the same is applicable to medium rock or not. The said document cannot form the basis for the claims made by the petitioner in this regard. The amount already approved by the Chief Engineer, ie, the 2nd respondent has been disbursed to the petitioner. The claim of the petitioner that he was forced to remove the rock by chiseling is not factually correct and hence denied."
The 2nd respondent-Chief Engineer, LSGD, has stated in para 10 of the counter affidavit dated 4.12.2009 as follows:
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W.P(C).No.2686 Of 2009 "It is further submitted that the unit rate sanctioned for protective blasting in medium rock is based on the prevailing PWD rules, at the relevant time. But the unit rate for protective blasting in hard rock was seen approved by PWD. As stated in the above paras the unit rate for protective blasting in medium rock was sanctioned by the Chief Engineer, LSGD based on the prevailing PWD rules. But the unit rate for protective blasting in hard rock approved by the Chief Engineer, PWD, is claimed by the petitioner. The unit rate approved by the Chief Engineer, LSGD was to carryout the operation of protective blasting in medium rock and collecting the spoils within the initial lead and lift only and this only can be the granted claim of the petitioner. Petitioner has entered into the agreement fully knowing the terms and conditions and without any protest." Though the 2nd respondent has not denied with any clarity as to the applicability of Ext.P-2 rates, what can be discerned from a reading of their counter affidavit is that the rate in Ext.P-2 is shown as Rs.3,487/10m3 could be the one meant for hard rock protective blasting and that the 2nd respondent-Chief Engineer, LSGD, had sanctioned amount @ Rs.2,564/10m3 for medium rock blasting in the instant case and the said rate in Ext.P-10 is based on the prevailing PWD rates. However, no material has been produced by the Government Pleader to show the rate fixed in the PWD Schedule Rates, 1999, at the relevant time in respect of the work of medium rock blasting. So, a crucial matter to be ascertained is as to whether what exactly was the rate at the relevant time in the PWD 1999 Schedule of Rates or in any other guidelines or norms of the PWD for the work of medium rock blasting. Based on the materials so far made available, this Court is not in a ::18::
W.P(C).No.2686 Of 2009 position to decide on that issue with any certainty. The indisputable aspect of the matter is that the petitioner could certainly succeed on this point if the rate certified in Ext.P-2 by the Office of the Chief Engineer (Roads & Bridges) is the one for medium rock blasting at the relevant time. The 1st respondent-Panchayath has got a specific case that they cannot grant any amount over and above what has been sanctioned by the 2nd respondent-Chief Engineer, LSGD. Therefore, this Court has no other alternative but to remit the matter to the 2nd respondent-Chief Engineer, LSGD for consideration afresh on that aspect of the matter. For getting an authentic information in that regard, it is further directed that the 2nd respondent-Chief Engineer, LSGD will get the details as to the veracity of Ext.P-2 from the Office of the Chief Engineer (Roads & Bridges)/Chief Engineer (PWD) forthwith. The petitioner will also be at liberty to produce a certified copy of this judgment before the Chief Engineer (PWD), Government of Kerala, upon which the said authority will immediately inform the Chief Engineer-LSGD as to the rates prescribed in the PWD 1999 Schedule of Rates or in any other guidelines or norms followed by the Pwd in respect of the work of medium rock blasting. The said Chief Engineer of the PWD would also advert to the facts as to whether Ext.P-2 information provided by the ::19::
W.P(C).No.2686 Of 2009 Assistant Executive Engineer in the Office of the Chief Engineer (Roads & Bridges) reflects the correct rate for medium rock blasting work. Based on the information so conveyed by the Chief Engineer of the PWD, the 2nd respondent-Chief Engineer, LSGD, will make a final call on that, keeping in mind the crucial aspects that under Rule 18 of the Kerala Panchayath Raj (Execution of Public Works) Rules, 1997, the methods adopted in the matter of preparation of estimates and plan of works invitation of tender, execution of work, payment for such work, etc., shall be followed by the Panchayath in respect of their public works. If higher rates have in fact been provided by the PWD for the relevant time for medium rock blasting, the same shall be conveyed by the 2nd respondent to the 1st respondent-Panchayath. Thereupon, the 1st respondent will ensure that the extra payments, if any, in that regard should be paid to the petitioner for the total quantity of 4360m3 of medium rock blasted at the said higher rate, if applicable, within a period of two months from the date of receipt of a communication in that regard from the 2nd respondent-Chief Engineer, LSGD. If higher amounts are so payable to the petitioner in respect of medium rock blasting, then the additional amount will also carry interest @ 8% per annum from the date of earlier payment of the final bill up to the date ::20::
W.P(C).No.2686 Of 2009 of actual payment for such additional amount.
13. The next aspect to be considered is as to the tenability of the claim made by the petitioner with regard to extra payment for the work of transporting and depositing the remnants of the blasted rock. It is common ground that as per the original estimate, the total quantity of medium rock that was to be blasted and removed from the site is hardly from the range of 45 m3. It is also common ground that after the commencement of work, it is discovered that the estimate for blasting of medium rock had to face an exponential increase by about atleast 100 times compared to the original estimate. Accordingly, as can be seen from serial No.1 of Ext.P-1(4) on page 15 of the paper book that as per the revised estimate the total quantity of medium rock to be blasted is 4360 m3. It is also common ground that the original estimate provided for a lead factor of only 50 meters from the work site. As the original estimate conceived is only a total quantity of blasting of medium rock in the range of 45 m3, it was quite reasonable to fix the lead factor at 50 meters as it was expected that blasted rock remnants of such small quantity could easily be lifted and dumped in nearby places situated closely within 50 meters from the work site in question. As the revised estimate of blasted rock underwent an exponential increase by ::21::
W.P(C).No.2686 Of 2009 about 100 times it became inevitable that dumping of such huge quantity of blasted rock could not be made in places within the minimum vicinity of work site unless there were close by lands or areas directly under the control of Panchayath or such public authority. Therefore, the version of the petitioner as projected in his consistent representation as per Ext.P-13 series referred to above, Ext.P-6, Ext.P-7, etc., that he had to face serious objections from the neighbouring land owners or members of the public when he attempted to dump the blasted rock remnants to places nearby the work site is quite genuine and well founded. The petitioner had made repeated representations in that regard as can be seen from series of representations at Ext.P-13 series referred to herein above. Though in the said representations at Ext.P-13 series, more so, the one as per Ext.P-13(1) dated 11.6.2004, Ext.P-13(3) dated 27.7.2004, Ext.P-13(4) dated 19.5.2004 and Ext.P- 13(5) dated 26.5.2004 it has been consistently stated that the petitioner was finding it extremely difficult to dump the remnants of blasted rocks to places nearby the work site as there was tremendous objections and oppositions from the neighbouring land owners and members of the public and that he was constrained to transport and dump the same to far off places situated 2 to 7 kilometres or more from the work site and ::22::
W.P(C).No.2686 Of 2009 that he had to incur very huge expenses in that regard. The veracity of these specific pleas in Ext.P-13 series representations has not in any way been rebutted in any reply letters issued by the 1st respondent. On the other hand, in response to Ext.P-13(3) representation dated 27.7.2004, the 1st respondent-Panchayath has sent Ext.P-4 reply dated 2.8.2004 wherein they have conceded to the said request made by the petitioner and has conveyed to the petitioner that the remnants of the blasted rock could be dumped either in the compound of the Panchayath Office or Agali Pump House or in its vicinity, etc., without causing any disturbance to the environment, etc. Ext.P-5 is the certificate dated 5.5.2006 issued by the Village Officer, Agali, wherein it has been certified that the distance between the work site (Bus Stand) and the Grama Panchayath Office is about 1.34 k.m. and that between the work site (bus stand) and the Panchayath Pump House comes to 1.255 k.m. The veracity of the factual aspects in Ext.P-5 has not in any way been disputed by the respondents. Moreover, Ext.P-5 certificate has been issued by a responsible official of the State Revenue Administration. Therefore, from the overall factual matrix that has emerged in this case, it is clear and beyond any doubt that the nearest places where the petitioner could have dumped the debris and ::23::
W.P(C).No.2686 Of 2009 remnants of blasted rock without any objections, are places which are situated beyond 1 k.m. from the work site in question. The places referred to in Exts.P-4 and P-5 are the compound of the Grama Panchayath office and Panchayath Pump House.
14. In Ext.P-10, the Technical Advisory Committee has made an exhaustive analysis of the claims of both the parties in regard to the extra expenses incurred by the petitioner for transportation of such debris and remnants of blasted rocks. On site inspection, the Technical Advisory Committee consisting of Executive Engineer of the LSGD, Chairman of the DLTAG of Sub Committee of Roads, Buildings and Bridges and the Assistant Engineer of the 1st respondent-Agali Panhayath have unanimously found that 1521.61m3 of debris and remnants has been deposited in the work site itself and that as per the Measurement Book, the total quantity of blasted remnants and debris comes to 7106.57m3 and that therefore the petitioner could be granted extra lead for the quantity of 5584.96m3 of blasted rock and debris (viz., 7106.57m3 - 1521.61m3 = 5584.96m3). As stated hereinabove, the lead factor is the distance that is required to be travelled for dumping the remnants and debris away from the work site. Earlier when the original estimate of the total quantity of blasted rock was ::24::
W.P(C).No.2686 Of 2009 found to be only 45m3, the lead factor was reckoned as 50m3. It is an indisputable fact of the matter in this case that the total blasted quantity of medium rocks increased by about 100 times which resulted in the revised estimate as per Ext.P-1. The said quantity is 4360m3. Therefore, it was quite impossible for any contractor to dump such huge quantities of blasted rock remnants to any place within the distance of 50 metres from the work site unless and until the Panchayath had some such place in its direct control or possession within 50 metres from the work site. The 1st respondent-Panchayath has no such place and on the other hand, in view of the consistent request made by the petitioner as per Ext.P-13 series representations, the Panchayath has clearly acknowledged the reality of that situation in Ext.P-4 and has directed the petitioner to dump those remnants and debris either in the compound of the Panchayath Office or Agali Pump House. Therefore, it is beyond shadow of any doubt that the nearest place where the petitioner could have dumped the debris and remnants without any objections from the members of the public and neighbouring land owners was situated atleast 1 k.m. away from the work site which is much more than the original estimated lead factor of 50 metres. Ext.P- 4 was issued only on 2.8.2004. The petitioner has consistently stated in ::25::
W.P(C).No.2686 Of 2009 the aforesaid series of representations at Ext.P-13 that he has been forced to transport and dump such remnants and debris at far off places in the range of 2 to 7 k.m. or more from the work site. This aspect of the matter has not been denied by appropriate reply in that regard and on the other hand, factual correctness of the same has been acknowledged, going by the tone and tenure in Ext.P-4 reply letter dated 2.8.2004 issued by the 1st respondent. True that there is an observation in the last paragraph of Ext.P-10 (on page 3 of Ext.P-10) proceedings issued by the Technical Committee that they could not identify the debris and remnants of the entire quantity of 5584.96m3 deposited in the vicinity of Panchayath office compound or the Panchayath Pump House. It is only on the basis of this stray observation that the 1st respondent had refused to implement the considered recommendation of the Technical Committee on the various other paragraphs on page 2 of Ext.P-10. On the overall facts and circumstances of this case, it is only to be clearly inferred that the petitioner was compelled by constrains of time factor in the timely execution of work to dump those debris and remnants to even places far off from the Panchayath premises. Therefore, the entire quantity of 5584.96m3 must have been deposited in far away places and later in ::26::
W.P(C).No.2686 Of 2009 the two specific premises which were pointed out subsequently by the Panchayath in reply to letter dated 2.8.2004. The conclusive finding by the experts in Ext.P-10 would pin point one certain aspect of the matter that the petitioner had blasted the total quantity of 7106.57m3 of materials out of which 1521.61m3 was seen deposited in the work site itself. These are indisputable and cogent aspects which were emerged to the full satisfaction of the Technical Committee consisting of experts based on the data in the M-Book maintained for the work in question. Therefore, after deducting the quantity of 1521.61m3 of materials which was found to be deposited in the work site, the clear and sole irresistible conclusion is that the petitioner had blasted and removed 5584.96m3 of such debris and remnants away from the work site. It was after being fully convinced of such crucial and indisputable facts of the matter that the Technical committee consisting of experts has come to the conclusion that the petitioner is entitled for extra payment for transporting the quantity of 5584.96m3 @ Rs.580/10m3 as per the PWD Schedule of Rates, 1999 and thus he is entitled to extra payment of Rs.3,23,928/-.
15. As mentioned hereinabove, the learned Government Pleader has made available copy of the relevant pages of PWD Schedule ::27::
W.P(C).No.2686 Of 2009 of Rates, 1999, effective from 1.7.1999, issued by the competent authority of the PWD in the Government of Kerala. The learned Government Pleader, on the basis of instructions from the PWD authorities, would submit that the relevant entry No.2 on page 28 of the said Schedule of PWD rates which reads as follows:
"Sl. Materials Unit of Upto Over Over Over Over Over For every No rate 5 km. 5Km 6 km 7 km 8km 9 km additional and and and and and 1 km or upto upto upto upto upto part 6km. 7 km. 8 km. 9 km 10 km. Thereof.
1. - - - - - - - - -
2. Split stones and blasted rubble 45 dm3 and below in size, Laterite stones, Laterite chips, earth gravel, sand and broken stones m3 61.40 65.50 69.90 73.70 77.80 81.90 4.10
- - - - - - - - -"
From a reading of the said materials it is crystal clear that there is no classification for the said rate as between those transportation which are lesser than or up to 1 k.m or transportation involving beyond 1 k.m. The relevant entry clearly stated that it is up to 5 k.m. Therefore, the considered recommendation in that regard made by the Technical Committee of the experts on page 2 of Ext.P-10 cannot be said to be faulty or wrong. On the other hand, materials as per Ext.P-4 and P-5 would clearly show that the nearest places where the petitioner could ::28::
W.P(C).No.2686 Of 2009 have transported and dumped and debris and remnants are situated beyond 1 k.m. from the Panchayath work site. On this aspect, the learned counsel for he petitioner attempted to make a contention that even the rate fixed in page 2 of Ext.P-10 by granting rate @ Rs.580/m3 is also wrong. Sri.V.J.James, learned counsel for the petitioner, would submit that the entry No.2 on page of PWD Schedule of Rates, 1999 is @ Rs.61.40/m3 up to 5 k.m. and that what has been provided is only Rs.580/10m3 and therefore, going by the entry No.2, the petitioner is legally entitled for payment @ Rs.614/10m3 for the aforestated quantity of 5584.96m3. This submission of the petitioner has been seriously opposed to by Sri.N.Raghuraj, learned counsel appearing for the 1st respondent. Sri.N.Raghuraj, learned counsel for the 1st respondent, would strongly urge that such a plea has never been put up before passing or after passing of final bill or atleast during the consideration of the matter by the Technical Committee, which led to Ext.P-10 and such a plea is not remotely whispered in the averments in this Writ Petition and therefore such a plea should be totally eschewed from the consideration of this Court in this proceedings. There is strong force in the aforesaid objections and contentions by the Sri.N.Raghuraj, learned counsel for the 1st respondent. The crucial fact of the matter is that the ::29::
W.P(C).No.2686 Of 2009 petitioner has not even pointed out this plea even during the consideration of the matter by the Technical Committee which led to Ext.P-10 and not even a remote plea is whispered in the averments of the writ petition. Therefore, at this long distance of time, this Court is unable to consider the tenability of that contention. More over, since this contention has been raised for the first time only today by the petitioner and, that too, before this Court, the learned Government Pleader appearing for the 2nd respondent cannot be asked to get any instructions on the correctness or otherwise of this plea at this point of time. Therefore, this Court has no hesitation to reject the aforesaid new plea put up by the learned counsel for the petitioner. The upshot of the discussion is that the Technical Committee of experts was well founded and justified as found in page 2 of Ext.P-10 proceedings dated 24.7.2008 that the petitioner is entitled for extra payment for extra lead @ Rs.580/10m3 for the total quantity of 5584.96m3 and thus he is entitled for an amount of Rs.3,23,928/-. The petitioner has invested his time, energies and moneys on this project and since the Technical Committee has found that he is entitled for the above extra payment, it is also ordered in the interest of justice that the said amount would carry interest @ 8% p.a. from the date of issuance of Ext.P-10 ::30::
W.P(C).No.2686 Of 2009 (24.7.2008) up to the date of actual payment. The 1st respondent- Panchayath is directed to ensure that the above said payment of Rs.3,23,928/- (Rupees Three lakhs twentythree thousand nine hundred and twentyeight only) as found by the Technical Committee of experts in Ext.P-10 is paid to the petitioner along with interest @ 8% per annum as directed above, within a period of three months from the date of production of a certified copy of this judgment.
With these observations and directions, this Writ Petition (Civil) stands finally disposed of.
ALEXANDER THOMAS, Judge.
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