WP(C) NO. 29677 OF 2012 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 29677 OF 2012
PETITIONER/S:
V.J. VARGHESE
AGED 53 YEARS
ALPHONSA NIVAS, VALIYAMARAM WARD, THIRUVAMBADY PO
ALAPPUZHA.
BY ADVS.
SRI.K.L.VARGHESE (SR.)
SRI.RANJITH VARGHESE
SRI.RAHUL VARGHESE
SMT.SANTHA VARGHESE
RESPONDENT/S:
ALAPPZHA MUNICIPALITY
REPRESENTED BY THE MUNICIPAL SECRETARY, ALAPPUZHA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 29677 OF 2012 2
P.V.KUNHIKRISHNAN, J
--------------------------------------------
W.P.(C) No.29677 of 2012
--------------------------------------
Dated this the 7th day of July, 2022
JUDGMENT
The above writ petition is filed with following prayers : "(i) A writ of certiorari or any other appropriate writ, order or direction be issued, calling for all the documents leading to Ext.P6 and quash the same.
(ii) A writ of mandamus or any other appropriate writ, order or direction be issued, directing the respondent to issue tender documents to the petitioner for the works tendered by the respondent notwithstanding Ext.P6, if the petitioner is otherwise qualified.
(iii) Grant an order of stay of operation of Ext.P6 including implementation of the coercive steps indicated therein.
(iv) Grant costs to the petitioner and such other reliefs as are prayed for and deemed fit to be granted in the circumstances of the case." [SIC]
2. It is the case of the petitioner that a Civil Engineering WP(C) NO. 29677 OF 2012 3 construction work of retaining wall under Ext.P1 agreement for the respondent was delayed due to change in location by the respondent. According to the petitioner, since the scope of work changed, Ext.P3 revised estimate was approved by the Municipal Council by Ext.P4. After completion of work, CCII and final bill under Ext.P5 was raised which was settled on 25.10.2010 without any penalty or even a murmur against the petitioner. However, later on purportedly on account of the audit objections, petitioner has been issued Ext.P6 notice demanding an amount of Rs.70,835/- on account of alleged delay in completion of work and another amount of Rs.56,788/- as excess paid as per the revised estimate, thus totalling Rs.1,27,613/-.
3. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent.
4. The counsel for the petitioner submitted that after settling the final bill based on an audit report, the respondent cannot issue Ext.P6. The counsel also submitted that Ext.P6 is issued without giving an opportunity of hearing to the WP(C) NO. 29677 OF 2012 4 petitioner. The counsel also relied the judgment of this Court in U.K.Mohamed v. Executive Engineer, PWD Division, Kasaragod and others [2015 SCC Online Ker 33892].
5. This Court considered the contentions of the petitioner. I perused Ext.P6. I also perused Ext.P5. Ext.P5 is the final bill passed by the Engineer of the Municipality and the Secretary. This was passed in the year 2010. Thereafter, the present Ext.P6 notice was issued on 25.10.2012 and that also without giving an opportunity of hearing to the petitioner. Moreover, similar point is considered by this Court in U.K.Mohamed's case (supra). It will be better to extract the relevant portion of the judgment.
"3. The learned Government Pleader seeks time for filing counter affidavit. This writ petition was admitted on 17.01.2013 and though the service was complete, no counter affidavit has been filed, until today. Hence the request of the learned Government Pleader seeking for further time to file a counter affidavit is rejected.
4. Since no counter affidavit has been filed in this case, which is pending since 2012, it has to be assumed that there is no dispute regarding the liability to pay. Petitioner has since produced Ext.P6 dated 1/12/2012 by which he was informed WP(C) NO. 29677 OF 2012 5 that an amount of Rs.4,11,000/- has been withheld from the final bill based on an audit objection. It is mentioned in Ext.P6 that there has been certain objection with reference to the rate allowed and rate quoted. A perusal of Ext.P6 does not instill confidence in this Court to permit the Executive Engineer to withhold such amount on the basis of audit objection. This is not an instance where the bill given by the petitioner had not been passed by the competent authority. If the bill has been passed, definitely there is an obligation to pay the amount, unless there are valid reasons for not paying the same.
5. In the said circumstances, deduction of the amount is clearly arbitrary and without taking into consideration the provisions of the contract. Subsequent audit objection cannot be a reason for withholding the amount from the contractors bill unless the liability is admitted by the contractor."
6. In this case also, there is no counter affidavit. This writ petition is pending before this Court from 2012 onwards. In the light of the above judgment, I think the petitioner has to succeed. Moreover, the delay aspect raised in Ext.P6 is not correct in the light of Exts.P2 and P3. Ext.P2 is the letter from the Municipal Councillor to the Secretary to sanction the change in site location. Ext.P4 is the revised estimate sanctioned by the Municipal Council.
WP(C) NO. 29677 OF 2012 6
7. In the light of the same, I think Ext.P6 is unsustainable. Moreover, Ext.P6 is an order passed without giving an opportunity of hearing to the petitioner. In addition to all this, similar point is considered by this Court in U.K.Mohamed's case (supra). Therefore, Ext.P6 is unsustainable.
Therefore, this writ petition is allowed and Ext.P6 is set aside.
SD/-
P.V.KUNHIKRISHNAN JUDGE SKS WP(C) NO. 29677 OF 2012 7 APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF AGREEMENT DT 26.2.2008 EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT EXT.P2 TRUE COPY OF LETTER DATED 25.7.2008 ISSUED BY THE MUNICIPAL COUNCILLOR TO THE RESPONDENT EXT.P3 TRUE COPY OF THE AGENDA SLIP OF THE COUNCIL DATED 22.12.2008 EXT.P4 TRUE COPY OF THE RESOLUTION DT 12.1.2009 OF THE RESPONDENT EXT.P5 TRUE COPY OF CC II AND FINAL BILL EXT.P6 TRUE COPY OF THE NOTICE DT. 25.10.2012 ISSUED BY THE RESPONDENT TO THE PETITIONER ALONG WITH STATEMENT RESPONDENT'S EXHIBITS : NIL