Kerala High Court
M.A.Ameer vs The State Of Kerala on 5 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 05TH DAY OF FEBRUARY 2021/16TH MAGHA,1942
WP(C).No.14889 OF 2020(I)
PETITIONERS:
M.A.AMEER,
AGED 50 YEARS,
PWD CONTRACTOR,
MUNAMBA HOUSE,
P.O.CHENGALA, KASARAGOD-671541.
BY ADVS.
SRI.K.L.VARGHESE (SR.)
SMT.SANTHA VARGHESE
SRI.RAHUL VARGHESE
SRI.RANJITH VARGHESE
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
PLANNING AND ECONOMIC AFFAIRS (A) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION,
PWD COMPLEX,
PULIKUNNU, KASARAGOD-671 121.
3 THE SPECIAL OFFICER AND GOVERNMENT JOINT
SECRETARY,
KASARAGOD DEVELOPMENT PACKAGE,
CIVIL STATION,
KASARAGOD-671123.
W.P.(C) No.14889/2020
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4 THE DISTRICT COLLECTOR,
KASARAGOD, KASARAGOD DEVELOPMENT PACKAGE,
CIVIL STATION,
KASARAGOD-671123.
SR. GOVERNMENT PLEADER SRI K.V.MANOJ KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 05-02-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(C) No.14889/2020
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N. NAGARESH, J.
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W.P.(C) No.14889 of 2020
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Dated this the 5th day of February, 2021
JUDGMENT
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Petitioner, who is an A-Class Contractor of the
Kerala Public Works Department, has filed this writ petition
seeking to quash Ext.P8 and to direct the 4 th respondent-
District Collector to take immediate steps for rectification of
mistake in declining the amount and to release ₹23,38,367/-
to the petitioner, as recommended by the Executive Engineer
in Exts.P6 and P7 within a time to be stipulated by this Court.
The petitioner has also sought interest at 15% per annum on
the said amount.
2. The petitioner undertook the work of "Improvement
of Adoor Mandakol Road" for the PWD. The original scope
of the work provided "construction of carriage way with
20 mm. thick premixed open grade chipping carpet".
W.P.(C) No.14889/2020
Subsequently, the scope of work was modified from
"premixed open grade chipping carpet" to "Bituminous
Macadam and Bituminous Concrete". The Government
sanctioned the change as per Ext.P2 and the work was
accordingly completed by the petitioner. The final bill was
settled on 27.09.2017.
3. The petitioner states that ₹5,00,00,000/- was
deposited for the project work. However, the final bill was
only for ₹4,80,86,314/-. The balance amount of ₹19,13,686/-
was returned to the accounts of the 4 th respondent-District
Collector. When the petitioner's auditor scrutinised his
accounts, the auditor noted that there was a deficit in the
amount due to the petitioner on account of an oversight and
more amount was due to the petitioner from the respondents.
Therefore, on 01.10.2019, the petitioner submitted Ext.P3
request to the Executive Engineer to re-examine the bills.
4. The petitioner had procured all the materials
required for the work from his own sources. The
respondents did not supply any material at all. However, an
W.P.(C) No.14889/2020
amount of ₹22,35,692/- was seen recovered from the amount
due to the petitioner towards differential cost of materials, by
mistake. In fact, the Agreement provided that no
departmental materials shall be supplied to the petitioner by
the Department. Though the petitioner had himself procured
Bitumen and emulsion with his own funds, the said amount
was seen erroneously deducted from the total amounts due
to the petitioner.
5. The Executive Engineer noticed this defect and
issued Ext.P5 letter dated 27.01.20020 to the District
Collector. The Executive Engineer stated that an amount of
₹19,16,997/- was deducted from the 2 nd part bill of the
petitioner and another amount of ₹3,18,695/- from the 3 rd
part bill, totalling to ₹22,35,692/-. The Executive Engineer
recommended that the said amount may be re-credited to the
account of the project work for onward payment to the
petitioner.
6. As per Ext.P6 dated 27.02.2020, the Special
Officer & Government Joint Secretary of Kasaragod
W.P.(C) No.14889/2020
Development Package issued letter to the Executive
Engineer seeking details of agreed PAC, part bills and final
bill for further scrutiny on account of the discrepancies. By
Ext.P7 letter dated 29.02.2020, the Executive Engineer
informed the Special Officer & Government Joint Secretary
that the amount recovered from the 2 nd and 3rd part bills was
₹21,54,869/- and another amount of ₹1,77,548/- was also
erroneously deducted towards cost of empty drums of
Bitumen and yet another amount of ₹5,950/- from the 3 rd and
final bill of the petitioner and the total deduction wrongly
made was ₹23,38,367/- which is to be reimbursed to the
petitioner.
7. Though there was no dispute as regards the
unauthorised deduction from the bills of the petitioner, the
District Collector issued Ext.P8 letter to the Executive
Engineer stating that the project was of the year 2014-'15
and proceedings thereon were completed and therefore the
new proposal for reimbursement need not be considered. A
copy of Ext.P8 was forwarded to the petitioner also. The
W.P.(C) No.14889/2020
petitioner is aggrieved by the decision of the District Collector
communicated through Ext.P8.
8. The learned counsel for the petitioner argued that
the denial of payment of ₹23,38,367/- by the District Collector
is unlawful and unjustifiable. Being a mutual mistake, the
non-return of the said amount tantamount to deprivation of
legitimate dues to the petitioner. The petitioner has
completed the work making considerable savings to the
respondents. The petitioner quoted a very competitive rate
of 23.78% below the estimate rate. The work was done to the
satisfaction of the respondents. When the audit of accounts
disclosed the mistake and the Executive Engineer certified
the same, it would be highly arbitrary and unjust on the part
of the 4th respondent to decline the amount to the petitioner
for the sole reason that the project was of the year 2014-'15.
9. Learned counsel for the petitioner pointed out that
an executive authority must be rigorously held to the
standards by which it professes its actions to be judged and
it must scrupulously observe those standards on pain of
W.P.(C) No.14889/2020
invalidation of the act in case of violation. Relying on the
judgment of the Hon'ble Apex Court in Vestindia
Pharmaceuticals Limited v. State of Uttar Pradesh and
another [2020 SCC Online SC 912], the learned counsel for
the petitioner argued that the question of Limitation Act does
not apply to the writ jurisdiction and the discretion vested in
the Court under Article 226 of the Constitution has to be
judiciously exercised after considering all pros and cons of
the matter, including the nature of the dispute, the
explanation for the delay, whether any third party rights have
intervened etc. Learned counsel pointed out that the
jurisdiction under Article 226 being equitable in nature,
questions of proportionality in considering whether the
impugned order merits interference or not in exercise of the
discretionary jurisdiction will also arise.
10. The learned counsel for the petitioner also relied
on the judgment of the Apex Court in Madras Port Trust v.
Hymanshu International by its Proprietor V. Venkatadri
(Dead) by LRs [(1979) 4 SCC 176] and urged that the
W.P.(C) No.14889/2020
respondents cannot resort to the plea of limitation to defeat
just claim of citizen.
11. The learned counsel for the petitioner argued that
the issue involved in the writ petition is not a disputed
question of fact at all. This Court has held in the judgment in
Grace Joseph v. State of Kerala and others [2006 KHC
783] that when on available materials, it may not at all be
necessary to record evidence and there may not be any hotly
disputed facts, which don't require recording of evidence for
determination, the parties cannot be forced to seek the
desired relief from the civil court.
12. The learned Government Pleader representing the
respondents strongly opposed the writ petition. The learned
Government Pleader argued that the work was completed on
29.03.2017. The claim in the writ petition is in respect of the
differential cost allegedly deducted in part bills which were
submitted on 31.05.2016, 07.02.2017 and 30.03.2017. The
project was closed long back in 2017 and there is no fund or
amount available as the project is closed.
W.P.(C) No.14889/2020
13. The contention of the petitioner that the deduction
of amount in the midst of differential cost as if Bitumen was
supplied by the Department, is irrelevant. The subject work
is not an item rate contract and therefore the claim made by
the writ petitioner is not maintainable. The claim of the
petitioner is stale and belated. The Government Pleader
submitted that the estimate rate of Bitumen was higher and
the actual rate was lower. It was under that circumstance the
differential amount was deducted.
14. I have heard the learned counsel for the petitioner
and the learned Government Pleader for the respondents.
15. As regards the plea of delay and limitation, it is to
be noted that the 3rd and final bill was submitted by the
petitioner on 27.09.2017. The petitioner pointed out the
mistake and sought for rectification on 01.10.2019. The
impugned Ext.P8 order was passed by the 4 th respondent on
02.07.2020. The writ petition was filed on 22.07.2020, within
three years of the submission of final bill and of noticing the
error and within three weeks of issuing the impugned
W.P.(C) No.14889/2020
communication. Therefore, this Court finds that the writ
petition cannot be dismissed on the basis of delay, laches or
limitation.
16. The further contention of the learned Government
Pleader is that the issue involves disputed questions of fact
and hence this Court should not interfere in the matter. It is
not in dispute that the petitioner quoted the work at a
competitive rate of 23.78% below the estimated rate and the
work was satisfactorily completed. Amounts were deducted
from the bills of the petitioner as differential cost on an
erroneous assumption that Bitumen and emulsion were
supplied by the Department. The fact that the Department
has not supplied Bitumen and emulsion to the petitioner, is
not in dispute. In fact, Clause 28 of Ext.P4-NIT specifically
states that no departmental materials shall be supplied to the
Contractor by the Department.
17. The Executive Engineer pointed out this error to
the 4th respondent-District Collector as per Ext.P5. The
Special Officer & Government Joint Secretary, Kasaragod
W.P.(C) No.14889/2020
Development Package called for the required documents to
ascertain the fact. The differential cost of Bitumen deducted
from the bills of the petitioner was ₹21,54,869/-. Cost of
empty drums were also mistakenly deducted to the tune of
₹1,83,498/-. Thus, the total erroneous deduction from the
bills of the petitioner was ₹23,38,367/-. However, the District
Collector chose not to correct the mistake for the specious
reason that the project in question was of the year 2014-'15.
The petitioner could not detect the mistake of erroneous
deduction at the time of settlement of the bills. But, as soon
as the mistake was noted, he brought it to the notice of the
respondents. The concerned Executive Engineer, after
perusing the records including the M-Book, came to the
conclusion that erroneous deductions were made from the
bills of the petitioner. When amounts were erroneously
deducted from the payment to the petitioner, it is the duty of
the State to make refund. The deduction of amounts were
without the authority of law. The State has no right to the
money and it is refundable to the Contractor.
W.P.(C) No.14889/2020
In the facts of the case, the writ petition is partly
allowed. Ext.P8 is set aside. The respondents are directed
to take immediate steps for rectification of the mistake and to
release the amount of ₹23,38,367/- to the petitioner as
recommended by the Executive Engineer in Exts.P6 and P7,
within a period of two months.
Sd/-
N. NAGARESH, JUDGE
aks/03.02.2021
W.P.(C) No.14889/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER
NO.G.O.(RT.)NO.16/2015/PLG DATED
8.1.2015.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED
22.4.2015 ISSUED BY THE 4TH
RESPONDENT-DISTRICT COLLECTOR.
EXHIBIT P3 TRUE COPY OF THE REQUEST DATED
1.10.2019 ISSUED BY THE PETITIONER TO
THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE AGREEMENT FORM NO.83
PAGE 20 CONTAINING CLAUSE 28.
EXHIBIT P5 TRUE COPY OF LETTER DATED 27.1.2020
ISSUED BY THE 2ND RESPONDENT TO THE
4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF LETTER DATED 27.2.2020
ISSUED BY THE 3RD RESPONDENT TO THE
2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF LETTER DATED 29.2.2020
ISSUED BY THE 2ND RESPONDENT TO THE
3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF LETTER DATED 2.7.2020
ISSUED BY THE 4TH RESPONDENT TO THE
2ND RESPONDENT.
SR
