IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 471 of 2001(E)
1. ANAGANADI PANCHAYAT
... Petitioner
Vs
1. K. RAMDAS
... Respondent
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :28/05/2010
O R D E R
HARUN-UL-RASHID, J.
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A.S.No.471 Of 2001
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Dated this the 28th day of May, 2010.
J U D G M E N T
The first defendant in O.S.No.77 of 1994 on the file of the
Sub Court, Ottappalam is the appellant. The suit was one for
declaration, permanent injunction and for realisation of money.
The court below decreed the suit in part declaring that the
plaintiff is not liable to pay the amount as per Exts.A3 and A4
demand notices. A decree of permanent prohibitory injunction
was also passed restraining the defendants from realising the
amount from the plaintiff. The claim for Rs.3,000/- put forward
by the plaintiff is disallowed. Parties are hereinafter referred to
as the plaintiff and defendant as arrayed in the suit.
2. The plaintiff was the convenor of a committee
constituted by the local people to undertake public works under
the Jawahar Rozgar Yojana Scheme. The 1st defendant
Panchayath allotted two works to the committee constituted by
the people; Ananganadi-Cherampattakavu road and Vattar-
Kallittamkuruchi road. Estimate for the first work was Rs.4 Lakhs
and Rs.1.5 Lakhs for the second work. An amount of Rs.2 Lakhs
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was advanced by the first defendant for the first work. It is the
plaintiff’s case that he had completed the work of metalling and
construction of the road. The plaintiff thereafter applied to the
Panchayath for supply of 21 tonnes of tar for black topping the
road. The plaintiff further contended that the first defendant
failed to supply the tar and hence work could not be completed.
According to him the second work was completed. It is the
plaintiff’s case that he had spend Rs.3,000/- excess amount for
completion of the first work. Plaintiff further contended that the
Panchayath did not claim any amount towards loss assessed by
it, but, demanded Rs.56,741.17/- towards the alleged loss
sustained owing to the non-tarring of the first work on the basis
of the loss assessed by the Vigilance Director. According to him,
Panchayath initiated recovery proceedings on the basis of the
directions issued by the Project Officer, DRDA, Palakkad to
recover that amount from the plaintiff without enquiry and notice.
3. The appellant contended that the plaintiff did not
complete the work as per the agreement and failed to do the
black topping of the road which consequently disturbed the top
layer metal spread and caused considerable damage to the entire
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structure of the Ananganadi-Cherampattakavu road. The
Panchayath maintained the stand that the damage was caused
only due to the negligence of the plaintiff. The Panchayath also
denied the allegation in the plaint that the plaintiff had given a
letter requesting for supply of tar which was not complied with by
the Panchayath. The Panchayath denied the issuance of such a
letter and according to the Panchayath, it was the duty of the
plaintiff to get necessary tar and if the plaintiff could not procure
the tar in time he is responsible for the non-completion of the
work.
4. Since the top layer metalling was completely
damaged, the matter was enquired into by the Vigilance Director
and it was found that there is inaction and negligence on the
part of the plaintiff. Panchayath maintained the stand that the
plaintiff was present throughout the enquiry and further pleaded
that the plaintiff had to pay Rs.220/- to the Panchayath, which
was received in excess by him. The appellant submitted before
this Court that the application filed by the appellant to call for the
records pertaining to the Vigilance Enquiry was dismissed by the
trial court without sufficient reasons. The appellant is aggrieved
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by the decree passed by the court and according to the appellant
the decree was passed without considering the legal questions
properly.
5. Learned counsel for the appellant/1st defendant also
referred to the relevant clause in the agreement which according
to him, it is the duty of the plaintiff to apply tar by procuring the
required quantity of tar. The learned counsel for the appellant/1st
defendant submitted that the plaintiff failed to produce any
document to convince the court that he had at any point of time
demanded tar from the Panchayath. From the facts and evidence
adduced by the parties, it is seen that the plaintiff had taken no
steps to prove that it is the duty on the defendant to supply tar.
Even the agreement was not seen produced. The trial court
examined the question as to whether the plaintiff is entitled to
get a declaration with respect to the claim put forward by him.
According to the appellant, there is no basis for the contention of
the plaintiff that the defendant had not issued any notice nor any
opportunity was afforded to him to substantiate his contentions
during the Vigilance Enquiry and that he was not aware of such
enquiry and therefore the amount assessed by the Vigilance is
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without following the principles of natural justice and he is not
liable to pay the amount. Learned counsel for the appellant
pointed out that the plaintiff failed to prove that no notice was
issued to him nor he was given an opportunity o substantiate his
contentions during enquiry. On the other hand the appellant
contended that the plaintiff participated in the enquiry and he
was given sufficient opportunity to substantiate his case. It is
also contented by the appellant that there is no basis for the
contention that the black topping of the Ananganadi-
Cherampattakavu road could not be completed due to non-supply
of the required tar by the first defendant Panchayath. I have
stated the contention of the appellant regarding the stand taken
by the Panchayath with respect to the alleged non-supply of tar.
From the materials on records it can be seen that the plaintiff
failed to substantiate his case that he submitted an application
before the Panchayath for supply of required quantity of tar and
in spite of repeated request Panchayath failed to supply the
required tar and therefore he could not complete the black
topping of the road. According to the appellant there is no basis
for the submission of the plaintiff. The plaintiff failed to adduce
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any evidence to prove that it is for the Panchayath to procure tar
for the purpose of black topping. The trial court also wrongly
placed onus of proof on the defendant to prove that there is
latches and inaction of the part of the plaintiff in completing the
construction of the said road. It is for the plaintiff to prove that
the first defendant is duty bound to supply requisite quantity of
tar and the work could not be completed due to non-supply of tar
by the Panchayath etc. The court below also simply believed the
case of the plaintiff that no notice was issued to him and no
opportunity was afforded to him to substantiate his case during
vigilance enquiry. In fact, plaintiff failed to prove that no
opportunity was afforded to him to substantiate his contentions
during the enquiry proceedings. It is a fact that the plaintiff did
not complete the work in accordance with the terms and
conditions and therefore the Panchayath had to rearrange the
work and as a result, Panchayath had suffered loss. If the work
was not completed by the plaintiff in time and to due to his own
default, the plaintiff will be liable to compensate the Panchayath
to the extent of loss sustained due to rearrangement of work. In
the aforesaid facts and circumstances granting of a decree, in
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favour of the plaintiff cannot be upheld by this Court. The matter
requires reconsideration at the hand of the trial court.
In the result, the appeal is partly allowed. The matter is
remanded for fresh consideration in accordance with law. The
court below shall try and dispose of the suit within a period of six
months from the date of receipt of a copy of this judgment.
Since the plaintiff/respondent did not appear before this Court,
notice shall be issued to the parties. There will be no order as to
costs.
HARUN-UL-RASHID,
Judge.
bkn/-