IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22774 of 2006(J)
1. GEORGE THEKKEKARA, THEKKEKARA HOUSE,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. THE ASSISTANT EXECUTIVE ENGINEER (AGRI),
3. THE ASST.DIRECTOR OF AGRICULTURE,
4. THE DEPUTY TAHASILDAR,
For Petitioner :SRI.M.P.ASHOK KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :06/04/2010
O R D E R
C.K.ABDUL REHIM, J
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W.P.(C).No.22774 OF 2006
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Dated this the 6th day of April, 2010
J U D G M E N T
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1. The petitioner had entered into an agreement
with the 2nd respondent for execution of the work of;
“deepening, widening and side protection of the Valiyathodu
in Kayattukuzhi Puncha Padasekharam” undertaken by the
Agricultural Department of the State Government, under the
‘Natural Calamities Scheme’. According to the petitioner, the
work was allotted to him only as elected convener of the
beneficiary committee. The approved estimate of the work
was for Rs.4 lakhs, which according to the petitioner, is
prepared as per the PWD schedule rates prevailing at that
time. Ext.P1 is the contract agreement executed. Admittedly
the work was not completed. According to the petitioner it
became impossible to complete the work at the rates at which
it was undertaken due to steep increase in the price of
building materials and labour charges. It is stated that,
inspite of request made by the petitioner to revise the rates in
accordance with the revised schedule rates of PWD, which
W.P.(C).22774/06 -2-
was brought into force subsequently, it was not allowed.
Eventhough a major portion of the work was completed as
early as in the year 1998, the matter was left as such, and the
2nd respondent has not taken any action till the year 2002.
Valuation of the completed work was taken only on 26.7.2002.
In Ext.P2 & Ext.P3 issued by the 2nd respondent, the cost of
the work completed was estimated as Rs.1,66,778/-. The
petitioner submitted Ext.P4 objection against the valuation
alleging irregularity and impropriety. During execution of the
work the petitioner was given advance payments to the tune of
Rs.3,50,000/-. According to the petitioner, the said payment
was effected in two phases of Rs.2,00,000/- and Rs.1,50,000/-
respectively. It is stated that release of the 2nd phase of
payment was effected only after receipt of utilisation
certificate and satisfaction obtained from the monetary
committee, who was evaluating progress of the work.
2. Since the petitioner has not completed the work
and since the advance amount received by him was in excess
of the cost of the work completed, the 2nd respondent issued
Ext.P5 notice demanding refund of the differential amount of
W.P.(C).22774/06 -3-
Rs.1,83,222/-. Since the petitioner failed to make payment
revenue recovery steps was initiated based on requisition of
the 2nd respondent. But the action was initiated for realisation
of the total advance amount of Rs.3,50,000/- along with
interest. Being aggrieved by such action the petitioner had
approached this court earlier, in WP(C).No:5185/2004. Since
Ext.P4 objection submitted against the valuation was pending
undisposed, this court disposed of the writ petition through
Ext.P7 Judgment directing the 2nd respondent to consider and
pass orders on Ext.P4 (Ext.P5 in that writ petition) with notice
and opportunities to the petitioner. Further proceedings of
recovery was directed to be kept in abeyance till such time.
3. Ext.P8 is the proceedings issued by the 3rd
respondent in compliance with the directions contained in
Ext.P7 judgment. Since objection raised by the petitioner was
against the valuation, which mainly pertains to technical
matters, the 3rd respondent referred the matter for opinion of
the 2nd respondent. The 2nd respondent thereupon called the
petitioner for a personal hearing in order to clarify his doubts
regarding measurements taken. But the petitioner has not
W.P.(C).22774/06 -4-
attended the hearing. The 2nd respondent reported that the
valuation of Rs.1,66,778/- arrived at with respect to the work
completed, is on the basis of actual measurements and that
there is no error in estimating the valuation. On getting
remarks from the 2nd respondent, the 3rd respondent afforded
personal hearing to the petitioner. After consideration of the
entire matter, the 3rd respondent had arrived at a conclusion
that the petitioner had only completed works worth
Rs.1,66,778/-, and that he had failed to complete the works as
undertaken through the agreement. It is found that there is
no reason to discard the valuation taken by the 2nd respondent
and therefore there is no reason to reconsider the demand of
Rs.3,50,000/-, which is the amount advanced to the petitioner.
4. Aggrieved by Ext.P8 the petitioner had preferred
appeal before the Government, as evidenced from Ext.P9.
When the coercive steps of recovery was pursued without
considering such appeal, the petitioner again approached this
court through WP(C).No:32013/2004. A learned Single Judge
of this court had disposed of the writ petition modifying
Ext.P8, and directing the petitioner to remit Rs.1,83,222/- only
W.P.(C).22774/06 -5-
along with 15% interest in 2 equal monthly installments. But
in Writ Appeal No:772/2005 filed by the petitioner, Judgment
of the Single Judge was set aside and the Government was
directed to consider and pass orders on Ext.P9 appeal within
three months. Ext.P11 is the Judgment in the Writ Appeal.
Revenue recovery proceedings was directed to be kept in
abeyance till the disposal of the appeal, on condition of the
petitioner remitting an amount of Rs.50,000/-, within a period
of six weeks from the date of the judgment.
5. Ext.P12 is the order passed by the Government,
disposing the appeal. It is observed that the petitioner had
failed to produce any invoice pertaining to the work completed
by him. The Government found that, since the agreement was
executed before revision of rates the request for allotting
revised rates, is inadmissible. It is observed that since the
work was not completed inspite of receipt of advance payment
of Rs.3,50,000/-, intention of the petitioner was malafide and
was only to misappropriate the said amount. Therefore the
appeal petition was rejected and the amount was directed to
be recovered from the petitioner. The present writ petition is
W.P.(C).22774/06 -6-
filed challenging Ext.P12 order of the Government.
6. Heard, Sri. M.P. Ashok Kumar, learned counsel
appearing for the petitioner and the learned Government
Pleader appearing on behalf of the respondents. Sri. Ashok
Kumar argued that the work could not be completed due to
the steep hike experienced in the price of building materials
and labour charges. It is contended that the petitioner was
only a nominee of the beneficiary committee and the work was
undertaken at a very low rate than the schedule rate of PWD,
which had undergone considerable changes immediately after
execution of the agreement. It is further argued that
eventhough the work was stopped as early as in 1998, the
valuation was taken only in the year 2002, that too during a
heavy rainy season. Therefore there is no proper valuation
taken and the estimation of the amount with respect to the
works completed is not true and correct. It is further
contended that the advance payment was effected in two
phases and the second payment of Rs.1,50,000/- was made
only after being convinced that there was proper utilisation of
the initial amount of Rs.2 lakhs. Therefore the estimation now
W.P.(C).22774/06 -7-
taken with respect to the completed portion of the work is
highly erroneous. It is further argued that, at any rate,
recovery of the total amount of advance payment along with
huge rate of interest is not at all justified. It is also contended
that the rate of interest with respect to the recovery is not
specified in Ext.P1 agreement. Yet another contention raised
is that the Government is not entitled to invoke provisions of
Revenue Recovery Act for realising the amount, because such
enablement is not specifically provided in the agreement, and
because the amount sought to be recovered is not adjudicated
and finalised.
7. There is no counter affidavit filed on behalf of the
respondents. However, learned Government Pleader
contended that the dispute regarding valuation has already
been considered by the competent authority in accordance
with the direction contained in Ext.P7 Judgment. It is pointed
out that inspite of notice the petitioner has not turned up
before the 2nd respondent to raise any dispute nor he had
produced any convincing materials, to substantiate such
disputes. It is further argued that since non completion of the
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work is accepted, the petitioner is liable to make refund of the
full amount of advance along with interest. It is also
contended that since the matter was elaborately considered at
various levels by the competent authorities, this court could
not interfere with the findings, which are basically on the
factual matrix of the issue.
8. Having considered facts and circumstances of the
case and rival submissions, I am of the opinion that there is no
scope for any interference with the findings arrived in Ext.P8
& P12 orders. It is an admitted fact that there was an
agreement executed by the petitioner for execution of the
work and to complete the same in a satisfactory manner.
Admittedly there was failure on the part of the petitioner in
completing the work. The claim for revised rates cannot be
allowed as a matter of right, in view of the terms of the
agreement. Further the petitioner has not succeeded in
establishing through any cogent materials that there is any
error occurred with respect to the valuation done by the 2nd
respondent. It is pertinent to note that the petitioner has not
co-operated with reconsideration of the matter, in view of the
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direction issued by this court in Ext.P7 Judgment. Inspite of
his assertions the petitioner has not produced any materials
before this court to prove that there was a certificate of
utilisation issued during pendency of the work regarding
proper utilisation of the amount of advance payment.
Therefore I find no merits in the contentions raised in this
regard.
9. However, it is an admitted fact that the petitioner
had completed works having valuation of Rs.1,66,778/-. It is
also not disputed that the total amount paid to the petitioner is
Rs.3,50,000/- only. Under such circumstances there is no
justification for demand and recovery of the entire advance
amount, from the petitioner. There is no reason forthcoming
to substantiate any such action, based on any specific
provisions of the contract or based on proceedings of any
competent authority. Therefore I am of the opinion that the
petitioner is liable to pay only the balance amount of
Rs.1,83,222/-. Since there is no specific agreement with
respect to the rate of interest payable, I am of the opinion that
the above said amount is recoverable from the petitioner
W.P.(C).22774/06 -10-
along with a moderate rate of interest at 12% per annum.
Since the demand at the first instance in this regard was
raised through Ext.P5 notice dt:17.10.2002, the failure in
payment can be attributed only from that date onwards.
10. Therefore while upholding Ext.P8 & P12, it is
clarified that the petitioner is liable for payment of only an
amount of Rs.1,83,222/- along with 12% interest per annum
due thereon from 17.10.2002 till realisation. The petitioner is
granted two months time from today for making payment of
the said amount. Needless to say that on failure of payment of
the amount as stipulated above the respondents will be at
liberty to proceed with further coercive steps of recovery for
realisation of the said amount.
The writ petition is disposed of with the above directions.
C.K.ABDUL REHIM, JUDGE.
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