IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36455 of 2007(M)
1. V.V.VINODKUMAR, AGED 46 YEARS,
... Petitioner
Vs
1. THE GOVERNMENT OF KERALA,
... Respondent
2. THE TAHSILDAR, KANAYANNUR TALUK,
3. THE VILLAGE OFFICER, THRIKAKARA VILLAGE
4. THE VILLAGE EXTENSION OFFICER, KAKKANAD,
5. THE ASSISTANT ENGINEER, DISTRICT
6. THRIKKAKARA GRAMA PANCHAYATH
7. THE CONTROLLER OF LOCAL FUND AUDIT,
For Petitioner :SRI.M.P.VIJAYAN
For Respondent :SRI.S.SHANAVAS KHAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :23/05/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.36455 of 2007
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Dated this the 23rd day of May, 2009
J U D G M E N T
As a convenor of a beneficiary committee for certain works for
the 6th respondent, the petitioner executed certain works. He received
payment in respect of the same as per the bills submitted in that
regard. Thereafter, the petitioner was served with Ext.P1 notice by
the 6th respondent intimating the petitioner that as per the audit
objection attached therewith, the petitioner received excess amount
amounting Rs.47,145.24 and directed the petitioner to refund the
same. Based on the same, Ext.P4 revenue recovery proceedings also
have been initiated. The petitioner is challenging those proceedings.
2. The petitioner’s contention is that as is evident from
Ext.P3, the concerned Assistant Executive Engineer had duly certified
the amounts due to the petitioner and as per the same, the balance
amount due to the petitioner was Rs.1,05,000/-, which only has been
paid to the petitioner and, therefore, the petitioner is not liable to
refund any amount. The petitioner points out that the value of the
work was Rs.1,74,113.37 and as per the orders on the subject,
beneficiary committees are entitled to 40 per cent extra, which
amounts to Rs.69,645.34 and, therefore, the total amount payable to
the petitioner for the work is Rs.2,43,758.71, out of which, the
petitioner was paid Rs.1,38,759/- earlier and balance of Rs.1,05,000/-
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as per the final bills certified by the concerned Assistant Executive
Engineer, has also been paid to the petitioner.
3. The learned counsel for the Panchayat would point out that
40 per cent has to be calculated only on the amount after deducting
the value of the departmental supply. The total departmental supply
comes to Rs.74,335.37. After deducting that amount from
Rs.1,74,113.37 which is the value of the work, the 40 per cent comes
to only Rs.29,734.15 and, therefore, the total amount payable to the
petitioner is only Rs.1,04,069.51 and the petitioner has received
mobilization advance of Rs.38,981.00, after deducting which the
petitioner is entitled to only Rs.65,088.52, whereas the petitioner has
been paid Rs.1,12,233.75. Therefore, the petitioner is liable to repay
Rs.47,145.25. On these contentions, the 6th respondent supports
Exts.P1 and P2. But of course, learned counsel for the Panchayat
admits that as is revealed by Ext.P3, the amount paid to the petitioner
was only Rs.1,05,000/- and not Rs.1,12,233.75 as mentioned in
Ext.P1. But, according to the Panchayat, they are bound by the audit
objections and therefore, that demand has only been made on the
petitioner.
4. Obviously, the issue revolves round calculation of 40 per
cent. As per Ext.P1 audit objection, 40 per cent has to be calculated on
the value of the work after deducting the value of the materials
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supplied by the Department. The petitioner could not dispute the
correctness of the said contention or the calculation based thereon. If
that be so, the petitioner had received excess amount. But the amount
paid to the petitioner is only Rs.1,05,000/- and not Rs.1,12,233.75 as
stated in Ext.P1. Therefore, the balance amount would come to only
Rs.40,912/-. The petitioner is only liable to refund that amount.
Accordingly, this writ petition is disposed of holding that the
respondents are entitled to recover only Rs.40,912/- from the
petitioner.
5. The counsel or the petitioner submits that the petitioner
may be permitted to pay off the said amount in instalments. The
petitioner shall pay the said amount in six equal monthly instalments
starting from 1.6.2009. Every subsequent instalment shall be paid on
the first working day of every succeeding month. If the petitioner pays
the instalment amounts on the due dates, further coercive recovery
proceedings shall be kept in abeyance. However, if the petitioner
commits default in payment of any one of the instalments, it would be
open to the respondents to recover the entire amount in one lump
sum.
The writ petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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