IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27613 of 2009(V)
1. ASHARAF K., AGED 45 YEARS, S/O.KHADER,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. ASSISTANT DEVELOPMENT COMMISSIONER
3. THE TAHSILDAR, REVENUE RECOVERY,
4. SULTHAN BATHERY BLOCK PANCHAYATH
5. THE VILLAGE OFFICER,
For Petitioner :SRI.A.T.ANILKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :25/01/2010
O R D E R
P.R. RAMACHANDRA MENON, J.
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WP(C) No. 27613 of 2009
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Dated, this the 25th day of January, 2010
J U D G M E N T
The petitioner is challenging the steps taken under the Revenue
Recovery Act seeking to realize a sum of Rs.33,543/- with interest and
cost, allegedly due from him in connection with the work awarded by the
4th respondent Block panchayat to dig a ‘well’ in the property concerned.
2. The case of the petitioner is that he is only a ‘general
worker’ and in the course of implementation of the Kerala Development
Project 2002-2003 of the 4th respondent Block Panchayat, the petitioner
was nominated as the convener of the Beneficiary Committee. Pursuant
to the agreement executed between the petitioner and the 4th
respondent, a sum of Rs.17,500/- was provided to the petitioner as
advance mobilization fund for commencing the work. But according to
the petitioner after digging 12 meters, he could not continue the work as
solid rock appeared at the bottom. Even though the factual position as
above was brought to the notice of the respondents, the contention of
the petitioner is that Ext.P3 notice was issued by the 3rd respondent
seeking to realize a huge amount from the petitioner, at the instance of
the 4th respondent.
WP(C) No.27613/2009
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3. The 4th respondent has filed a counter affidavit contending
that the work was awarded to the petitioner for the estimated cost of
Rs.70,000/- and a sum of Rs.17,500/- was disbursed to him as on
30.05.2003 as mobilization advance. It is stated that notice was issued to
the petitioner, as the work was not completed despite the lapse of two
years and 9 months and that the petitioner informed that the same could
not be completed since he found rock at a depth of 12 meters. It was in
the said circumstances that the recovery proceedings were resorted to for
realization of the principal sum of Rs.17,500/- with interest and cost.
4. It is very much relevant to note that, as contended in
paragraph 5 of the counter affidavit, pursuant to the representation
preferred by the petitioner which was directed to be enquired into as per
the instructions given by the Minister for Local Self Government, the
Assistant Engineer of the Block Panchayat inspected the site and
submitted a report; which revealed that the depth of the ‘well’ at the time
of the inspection was only 5 meters; though as per the Local Enquiry, the
‘well’ was dug to a depth of 12 meters. It has been stated in unequivocal
terms that the value of the work done as per the local rate was of
Rs.18,141/-.
4. Obviously, there is no case of the respondents that the
explanation offered by the petitioner that the work could not be proceeded
WP(C) No.27613/2009
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with on finding rock at the bottom, is not correct or sustainable. It is also
conceded from the part of the 4th respondent that, the work already done
by the petitioner was of the value of Rs.18,141/- whereas the amount
disbursed to the petitioner was only Rs.17,500/-. This by itself shows that
the petitioner has carried out the work to an extent over and above, the
value he has already received from the 4th respondent. Since no lapse or
failure has been attributed on the part of the petitioner in carrying out the
operation, but for the natural/topographical/geological calamity, the
recovery proceedings being pursued by the respondents invoking the
machinery under the Revenue Recovery Act as borne by Ext.P3 cannot
have any valid and legal assistance. In the said circumstance, Ext.P3 is
set aside and it is declared that no further coercive steps are liable to be
proceeded against the petitioner in respect of the transaction involved.
The Writ Petition is allowed. No cost.
P. R. RAMACHANDRA MENON
JUDGE
dnc