Kerala High Court

Muthukulam Grama Panchayat vs Gopalakrishna Pillai on 12 August, 2021

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                      WA NO. 1007 OF 2021
AGAINST THE JUDGMENT IN WP(C) 28891/2019 OF HIGH COURT OF
              KERALA, ERNAKULAM DATED 17.12.2019
APPELLANTS/RESPONDENTS 1 & 2 in WP(C):

    1      MUTHUKULAM GRAMA PANCHAYAT
           MUTHUKULAM P.O., ALAPPUZHA 690 506,
           REP.BY ITS SECRETARY
    2      THE SECRETARY
           MUTHUKULAM GRAMA PANCHAYAT,
           MUTHUKULAM P.O., ALAPPUZHA 690 506.
           BY ADVS.
           S.SHANAVAS KHAN
           S.INDU


RESPONDENTS/PETITIONER & RESPONDENTS 3 & 4 IN WP(C):

    1      GOPALAKRISHNA PILLAI
           AGED 62 YEARS
           S/O.SOMASEKHARAN PILLAI,
           'UTHRADAM', MUTHUKULAM SOUTH P.O.,
           ALAPPUZHA DISTRICT 690 506
    2      THE ASSISTANT ENGINEER
           MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT
           GUARANTEE SCHEME (MGNREGS),
           MUTHUKULAM GRAMA PANCHAYAT,
           MUTHUKULAM P.O., ALAPPUZHA 690 506.
 W.A.1007/2021
                                   2

      3         OVERSEER
                MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT
                GUARANTEE SCHEME (MGNREGS),
                MUTHUKULAM GRAMA PANCHAYAT,
                MUTHUKULAM P.O., ALAPPUZHA 690 506.

OTHER PRESENT:

                SRI JOMY GEORGE FOR R1



       THIS      WRIT   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.1007/2021
                                      3



                                 JUDGMENT

Dated this the 12th day of August, 2021

S. Manikumar, CJ.

Instant writ appeal challenging the judgment dated 17.12.2019 in

W.P.(C) No.28891 of 2019.

2. W.P.(C) No.28891/2019 was filed for the following reliefs:

"a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to prepare the bill and to make payment to the petitioner for the work done by him immediately.

b) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to give interest at the rate of 18% for delayed payment."

3. Short facts leading to the filing of the writ appeal are that

Mr. Gopalakrishna Pillai, the 1st respondent, had approached this Court, by

filing W.P.(C) No. 28891 of 2019, seeking for a direction to prepare a bill,

and to make payment to him, for the works done on the basis of

Exhibits-P2 to P7 agreements. Before the writ court, respondent No.1

contended that he was allotted various works, within the jurisdiction of the

Panchayat, under the aegis of MGNREGS, and an amount of

Rs. 17,58,439/- was due to him.

W.A.1007/2021

4. Before the writ court, appellants have appeared and filed a

statement, contending that the materials for performing the work were

supplied, without securing supply orders from the Panchayat, which is a

mandatory requirement, and that the beneficiaries preferred complaint

before the Deputy Director of Panchayats. It was further stated that as the

Joint Programme Co-ordinator has not granted approval, no supply orders

were issued by the Panchayat, and hence, there is difficulty in submitting

the final bills. To be precise, the Panchayat did not support the case of the

writ petitioner/1st respondent herein.

5. It is the contention of the appellants that without appreciating the

contentions put forward by the Panchayat, the learned Single Judge

disposed of the writ petition, directing the Secretary of the Panchayat to

prepare and settle the bills of the writ petitioner/1 st respondent herein.

Adverting to Exhibit-P14 measurements, and the submissions, writ court in

the impugned judgment, ordered as under:

"3. When I consider the afore submissions, it is without doubt that there is absolutely nothing which is attributable to the petitioner for the delay in payment of his bills. In fact, the Panchayat takes the stand he has completed the work satisfactorily and that he is entitled to the payment of his bills. The only question, therefore, is W.A.1007/2021

how and when the bills will have to be prepared and settled by Secretary of the Panchayat, thus leading to its payment by the concerned Authority.

In the afore circumstances, I am certainly of the view that the 2nd respondent-Secretary of the Panchayat must prepare and settle the bills of the petitioner, adverting to Ext.P14 measurements; and then forward the same to the Project Co-ordinator of the Scheme without any delay, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, once the bills are so forwarded by the Secretary to the Project Co-ordinator, the said Authority will process the same and ensure that the petitioner obtains his eligible amounts without any delay thereafter.

This writ petition is thus ordered."

6. Assailing the correctness of the judgment passed by the learned

Single Judge, appellants have raised the following grounds:-

A. Learned Single Judge decided the writ petition in favour of the petitioner even though there are factual controversies in issue.

The appellant never conceded that the writ petitioner is entitled to get any amount from the Panchayat. Even though no counter affidavit was filed, the fact of supply of materials without obtaining supply orders from the Panchayat was clearly pointed out in the statement. The issuance of supply order is a mandatory requirement, as it enables the authority to verify the W.A.1007/2021

quantity of materials supplied by comparing it with the quantity mentioned in the supply order and by conducting inspection into the area where work was undertaken by using the said materials.

B. It is pertinent to note that the 1st respondent did not produce any documents to prove that materials supplied were in tune with the demand made by the Panchayat. The quantity of materials supplied can only be proved by verifying the quantity mentioned in the supply order. Similarly, the quantity of materials utilised for performing the work can be counter checked by tallying it with the supply order and the receipt acknowledging the acceptance of materials delivered.

C. Even though agreements were executed through Exts. P2 to P7, the materials were supplied on the basis of the letter issued by the ward member, which is not in accordance with law. The Panchayat cannot act upon the letter issued by a Panchayat member for releasing the amount, since it would give rise to audit objection. Likewise, Ext.P13 series of photographs are not enough for releasing the amounts alleged to be due to the petitioner. Similarly Ext.P14 measurements also will not help the petitioner for proving the supply of materials as the same is not conclusive in nature and does not reveal the supply of materials and utilisation of the same for carrying out the work.

D. It is true that the petitioner in the review petition has no locus standi for filing the same. However, the documents produced by him throw light into the fact of unholy alliance of the then Panchayat members with the contractor in the matter of supply W.A.1007/2021

of materials and performance of the contract. From the sequence of events, it can easily be presumed that the materials supplied and the work done by the writ petitioner is not with the concurrence of the Panchayat, but solely on the basis of the instructions given by Panchayat members.

E. Even though agreements were executed with the Panchayat, subsequent actions done by the petitioner is not in consonance with the covenants of the agreement, including the securing of presence of officials at the time of supply of materials. As per clause 2 of the agreement the work has to be completed as per the direction of the concerned Engineer. It is also necessary that while supplying the materials, the quantity has to be verified and certified by the accredited Engineer and mate. No such formalities have been complied with by the writ petitioner and the said fact was not proved by producing documents.

F. It is well settled by various judgments of this Court that a writ court considering an issue with respect to a contract need look into whether there is any illegality, arbitrariness or any other legal infirmities warranting interference in the conditions incorporated by the Tender Inviting Authority. In the case at hand, no such legal circumstances are in existence, warranting the interference of this Court.

G. In the question of tenders, only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. In the case at hand no such unfairness or W.A.1007/2021

unreasonableness has been brought out warranting judicial intervention. On the other hand, petitioner has not proved the performance of contract by him as per covenants to Exts. P2 to P7 agreements.

H. It is relevant to note that Exts. P8 to P12, certificates issued by concerned ward members, for proving that the work has been completed as per the specification, cannot be relied upon. Even though there is a recital in it to the effect that the work has been inspected and measured in the presence of Assistant Engineer and Overseer of the Panchayat, no document has been produced to substantiate the same. Moreover, the documents have not been counter signed by the said officials.

7. Heard learned counsel for the parties and perused the pleadings

and material on record.

8. The nature of work undertaken by the writ petitioner/1 st respondent

herein, in 2018, are as under:

(i) Concreting of "Valiyatharayil-Thayyiltharayil Pathway Part-I,

(ii) Concreting of "Valiyatharayil-Thayyiltharayil Pathway Part-II,

(iii) Concreting of "Moroor-Rajubhavanam Pathway",

(iv) Concreting of "Thazhayasseril-Koonanchira Bhavanam Pathway", and

(v) Concreting of "Puthankulangara-Aswathy Bhavanam Pathway"

9. Certificates of completion of works issued by the ward members,

viz., Exhibits-P8 to P12, are extracted hereunder: W.A.1007/2021

Exhibit-P8

Muthukulam. Grama Panchayath Office Muthukulam P.O. Alappuzha District 690506 ISO - 9001 2015 Approved Office Phone - 0479 2472027, [email protected]

-----------------------------------------------------------------------

Date 31-12-2018 Secretary, Grama Panchayath, Muthukulam.

CERTIFICATE

With utmost conviction I certify that the undermentioned activities as per 2017-18 year scheme included in MGNRGS has been completed by concreting in my presence and in the presence of AE, Overseer, etc. using mixer machine with the workers under Employment Guarantee and other technical expert workers in the 7th Ward of Muthukulam Grama Panchayat that I represent.

1) Neduvakadu - Valiyatharayil footpath concreting (Part 1,2)

2) Valiyatharayil - Thayyiltharayil footpath concreting (Part 1,2)

3) Mangalasserril footpath concreting (Part 1,2)

4) Elankam - Varuvala Road Concreting

5) Asan Memorial - Mayikkal Road Concreting

Sign And Seal B.S.Sujithlal Member Ward - 7"

Exhibit-P9

M. Sukumaran, Member, Ward 6, Chairman, Health & Educational Standing Committee, Muthukulam Grama Panchayat, Archna, Ph. No. 0479 2472027 Muthukulam South P.O.

Ph. 0479-2473582, 9446193542

-------------------------------------------------------------------------------

Date: 30-4-18 CERTIFICATE

I hereby certify that the materials work of Puthankulangara - Ashwathy Bhavanam footpath included in the MGNRGS 2017-18 W.A.1007/2021

year scheme in 6th Ward of Muthukulam Grama Panchayat has been completed with the workers under Employment Guarantee. These works were undertaken in my presence as the ward member and in the presence of AE, Overseer, etc. It is therefore recommended for further follow-up.

Sign And Seal "

Exhibit-P10

Meerabhai Member, Ward 8 Chairperson, Welfare Standing Committee Muthukulam Grama Panchayath Noorattu Kandathil Ph. 0479 2472027 Muthukulam South Muthukulam P.O., Ph. 0479-2472186, 95443712

Date 3-4-18

President/ Secretary, Gramapanchayath, Muthukulam CERTIFICATE

I hereby certify that the materials work of Entekada - Kalapurackal footpath included in the MGNRGS 2017-18 year scheme in 8th Ward of Muthukulam Grama Panchayat has been completed with the workers under Employment Guarantee. The said concreting and materials work was undertaken in my presence- as the ward member and in the presence of AE, Overseer, etc. Since the work is completed I recommended for further follow-up.

Sign And Seal"

Exhibit-P11 Date 24-4-19 CERTIFICATE

I hereby certify that the materials work of Mozhoor - Raj Bhavanam footpath included in the MGNRGS 2017-18 year scheme in IX Ward of Muthukulam Grama Panchayat has been completed with the workers under Employment Guarantee. The said works were undertaken in my presence as the ward member and in the presence of AE, Overseer, etc. It is therefore recommended for further follow-up.

Sign And Seal"

W.A.1007/2021

Exhibit-12 Date 10-4-19 CERTIFICATE

I hereby certify that concrete work of Thazhesseril - Koonanchira footpath included in the MGNRGS 2017-18 year scheme in 10 th Ward of Muthukulam Grama Panchayath has been completed with the workers under Employment Guarantee. These works has been completed in my presence as the ward member and in the presence of Assistant Engineer, Overseer, etc. It is therefore recommended for further follow-up.

Sign And Seal"

10. Though several grounds were raised assailing the correctness of

the impugned judgment, perusal of the statement filed by the appellants

before the writ court shows that the execution of works is admitted and all

the works have been done, to the satisfaction of the authority. While

expressing the difficulties, in settling the amounts due and payable to the

1st respondent, before the writ court, the appellants have candidly admitted

that they are ready and willing to obey the orders of this Court. However,

quite contrary to the statement, instant writ appeal has been filed.

11. For brevity, paragraphs 3 to 5 of the statement filed by the

appellants before the writ court are reproduced:

"3. It is instructed to submit that the materials for the works were supplied as instructed by the then Secretary, but before issuing proper supply orders to the party and hence, there were some complaints to the Panchayat Deputy director. No action was initiated till date, but the Mission Director had considered each complaint and found it as not correct and approved the works, W.A.1007/2021

even though proper supply orders were not issued by the previous Secretary.

4. It is instructed to submit that 6 works were done by the petitioner in Ward Nos.7, 6, 8, 9 and 10. 6 agreements were executed by the petitioner. The sufficient materials for the 6 works were supplied by the petitioner after executing the agreements, in terms of the agreement as instructed by the then Secretary and the said materials were properly measured and entered into the M. Book of the Grama Panchayat. It is further instructed to submit that the proper attendance, wages etc., was the duty of the then Secretary. But the works were properly implemented. Since there were complaints from some outsiders, the Joint Programme Co-ordinator has to approve the bills and then only, the funds can be allotted to the petitioner. Till date the Joint Programme Co-ordinator has not granted the approval as there are no proper supply orders, the present Secretary and the Asst. Engineer have some technical difficulty to submit the bills and hence, the final bills for the works done were not submitted and approved. Once the Joint Programme Co-ordinator approves the supply order, the final bills can be prepared and the amounts can be disbursed to the petitioner.

5. It is further instructed to submit that all the works were done in respect of the pathways included in the Panchayat Asset Register and all those works were done to the satisfaction of the Authority. It is also instructed to submit that the contractor has nothing to do with the attendance register of employees engaged in the works as it was the duty of the then Secretary.

Hence, the present Secretary is handicapped in regularising those formalities and hence, due to the said technical difficulty, the final bills were not prepared and funds were not W.A.1007/2021

allotted. The respondents are ready and willing to obey any orders to be passed by this Hon'ble Court in this issue."

12. Posed with a question, as to what is the total amount payable,

Mr. S. Shanavas Khan, learned counsel for the appellants, submitted that it

would be around Rs.6 to 7 lakhs.

13. Giving due consideration to the pleadings and submissions, we

are of the view that when the works are completed, to the satisfaction of

the authority concerned, and the complaints made were found to be

incorrect, the amount due and payable to the 1 st respondent/writ petitioner

should not be withheld.

There is no error in the impugned judgment warranting interference.

Writ appeal is dismissed, directing to pay the amount, within one month.

Sd/-