M.A.Abdul Haris vs Kunnummal Block Panchayat And ...
2021 Latest Caselaw 13496 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
        THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
                        WP(C) NO. 12827 OF 2011
PETITIONER/S:

            M.A.ABDUL HARIS
            S/O.M.A.MOHAMMED KUNHI HAJI, GOVT.CONTRACTOR,
            MUNNAMBATH HOUSE, CHENGALA.P.O., KASARAGOD DISTRICT.

            BY ADV SRI.BABU JOSEPH KURUVATHAZHA



RESPONDENT/S:

    1       KUNNUMMAL BLOCK PANCHAYAT AND OTHERS
            REP.BY ITS SECRETARY, OFFICE OF THE KUNNUMMAL, BLOCK
            PANCHAYAT, KUNNUMMAL, VATTOLI-VIA,, KOZHIKODE DISTRICT,
            PIN-673 510.

    2       DISTRICT COLLECTOR COLLECTORATE
            CIVIL STATION, KOZHIKODE, PIN-673 020.

    3       STATE OF KERALA
            REP.BY ITS SECRETARY TO GOVERNMENT,, DEPT.OF RURAL
            DEVELOPMENT, GOVT.SECRETARIAT,, THIRUVANANTHAPURAM-695
            001.

    4       NABARD
            REP.BY ITS CHIEF GENERAL MANAGER,, LMS COMPOUND,
            THIRUVANANTHAPURAM-695 033.

            BY ADV SRI.C.R.SIVAKUMAR



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 12827 OF 2011
                                         2



                                   JUDGMENT

This writ petition is filed by the petitioner, who is a contractor, seeking

the following reliefs:-

"i. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 4 th respondent to issue necessary administrative sanction for releasing the payment on the basis of Ext.P8 decision of the 1 st respondent to the petitioner forthwith;

ii. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to release an amount of Rs.5,39,825/-, the subject matter of Ext.P8 decision of the 1st respondent, forthwith, to the petitioner, with interest at the treasury rate with effect from the date of completion of work/registration of bill;

iii. Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 4 th and 1st respondents to consider and dispose of Exts.P18 and P19 representations, forthwith;

iv. Issue such other writ, order or direction which may deem fit in the facts and circumstances of the case."

2. Apparently, the contentions raised by the petitioner shows that the

amounts were due to the petitioner from the 1 st respondent Block Panchayat. WP(C) NO. 12827 OF 2011

This writ petition was filed in the year 2011 and was remaining in the files of

this Court without any interim orders. Now 10 years have elapsed.

3. A detailed counter affidavit is filed by the 1 st respondent Block

Panchayat, disputing the liability on the ground that the escalated amounts

were spent over and above the contract value and unless and until technical

sanction is granted, the amount cannot be released. The paramount

contention advanced in the counter affidavit is extracted hereunder:

"4. It is submitted that the averment contained in the Paragraph Nos.2, 3 and 4 are not fully correct and hence, denied by this respondent. According to this respondent, the construction work at Neduvel - Nettikotta - Kunduthode road at Kozhikode District was financed by the 4 th respondent and the sanctioned amount of the work was only for Rs.84,00,000/- (Rupees Eighty Four Lakhs only). Out of the total amount, the 4th respondent's contribution is spend Rs.73,00,800/- being 20% of the estimate and the balance amount was to be spent by this respondent. On 26/03/2007, the final bill was forwarded on behalf of the petitioner with respect to the above mentioned construction of work. The total amount involved in the final bill was Rs.89,39,825/- which exceeded the original estimate of Rs.84,00,000/-. The terms and conditions for NABARD assisted RIDF works do not allow any additional works or cost escalation without prior permission of NABARD. Hence any change in the work/estimate must be done after obtaining approval from NABARD. According to the 1 st respondent thereafter, the WP(C) NO. 12827 OF 2011

technical and administrative sanction for enhancement of the original estimate is to be granted by the DLTC (District Level technical committee) and DPC(District Planning committee). But the petitioner is demanding the amounts before obtaining these required approvals from the proper authorities.

5. It is submitted that the averment contained in the Paragraph Nos. 5,6 and 7 are not fully correct and hence denied by this respondent. It is true that, as per Exhibit P8, the Kunnummel Block Panchayath Committee have decided to disburse the balance sum of Rs.5,39,825/- from the Block Development Fund. The decision was void ab initio as stated in the order of the 2nd respondent dated 05/05/2010 (which is produced by the petitioner through Exhibit P17(a). The work carried out by the contractor was not approved by the NABARD. The estimate approved by NABARD was only Rs.84,00,000/- and if any change in the work/estimate must be done by the approval of NABARD. No further approval from the 4th respondent was obtained by the petitioners. The decision of the Block Panchayath Committee was against the circular No.5273/RD/PA3/06 LSGD and the Circular No.27026/R & II/07 CRD dated 24/10/2007. The Panchayath Committee has no power to overrule the direction of the 3 rd respondent.

Moreover, as per Section 172(6) of the Panchayath Raj Act, 1994, the Block Panchayath should maintain the establishment and projects entrusted to it by government, in accordance with the guidelines and subject to the technical assistance of the government and it must have adopted the policy. Accordingly, when the decision of the Panchayath Committee came, this respondent refered the matter before the 3 rd respondent and WP(C) NO. 12827 OF 2011

sought further clarifications.

6. The averment contained in the Paragraph Nos.8,9,10,11 and 12 are not fully correct and hence, denied by this respondent. The petitioner filed various writ petitions before tehis Hon'ble Court seeking similar relief against this respondent. The power of attorney holder of the petitioner earlier filed W.P. (C).No.17592/2008 seeking similar relief in the same subject matter. This petitioner filed W.P.(C).No.20510/08 before this Hon'ble court and in connection with the same, this respondent filed R.P.No.968/08 and this Hon'ble court found that, 'review is sought for by the petitioner mainly contending that, the writ petition was filed at a time when the power of attorney holder of the writ petition had already approached this court and filed W.P.(C).No.17592/08 and for the same relief a second writ petition was filed during the pendency of the earlier one. Though factually, the averment is correct it is seen that, the pendency of the earlier writ petition has been disclosed in the writ petition. It is also a fact that, on 09/07/08, the earlier writ petition was dismissed as withdrawn.' the petitioner also filed C.C.No.1330/08 in favour of this respondent. Now this respondent submits that, after the above proceedings, the petitioner filed W.P.(C).No.6639/09 before this Hon'ble court and the same was disposed by this Hon'ble court vide Exhibit P17(a) order rejecting the contentions of the petitioner. This respondent has no power to release any amount to the petitioner as per his repeated demand for the enhanced revised bill for the construction work unless the appropriate administrative sanction/approvals are obtained by the petitioner from the appropriate authorities. WP(C) NO. 12827 OF 2011

7. The averment contained in the ground A,B,C and D are not fully correct and hence, denied by this respondent. Without availing appropriate administrative sanction from the District Level Technical Committee and prior approval of the NABARD, this respondent is not empowered to release the excess amount demanded by the petitioner in the above numbered writ petition."

Therefore, the writ petition is disposed of, leaving open the liberty of the

petitioner to approach the appropriate statutory authority seeking technical

sanction.

Sd/-

SHAJI P.CHALY JUDGE

uu 01.07.2021 WP(C) NO. 12827 OF 2011

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF LETTER NO.E.751/07 DATED 1.3.2007 ISSUED BY THE 1ST RESPONDENT TO MR. M.K.ABDUL RAHIMAN, THE POWER OF ATTORNEY HOLDER OF THE PETITIONER

EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.D10/1240/05 DATED 31.3.2006 OF THE SUPERINTENDING ENGINEER OF THE DISTRICT PLANNING OFFICE, KOZHIKODE

EXHIBIT P3 TRUE COPY OF INFORMATION SOUGHT BY MR.

M.K.ABDUL RAHIMAN, THE POWER OF ATTORNEY HOLDER OF THE PETITIONER BEFORE THE SECRETARY, DISTRICT PANCHAYAT, KOZHIKODE

EXHIBIT P4 TRUE COPY OF THE INFORMATION PROVIDED BY THE EXECUTIVE ENGINEER TO MR. M.K.ABDUL RAHIMAN, THE POWER OF ATTORNEY HOLDER OF THE PETITIONER

EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING OF DLTC OF KOZHIKODE DISTRICT HELD ON 15.11.2006

EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS BEARING NO.E.21/08 DATED 8.5.2008 OF THE 1ST RESPONDENT

EXHIBIT P7 TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE SUPERINTENDING ENGINEER, L.S.G.D. [PUBLIC WORKS], NORTH CIRCLE, KOZHIKODE, ASSISTANT EXECUTIVE ENGINEER, POVERTY ALLEVIATION UNIT, DISTRICT PANCHAYAT, KOZHIKODE AND THE ASSISTANT EXECUTIVE ENGINEER, P.W.D., BLOCK DEVELOPMENT OFFICE, KUNNUMMAL.

EXHIBIT P8 TRUE COPY OF THE DECISION OF THE GOVERNING BODY OF THE 1ST RESPONDENT BEARING NO.222/007, IN ITS MEETING HELD ON 20.8.2007 WP(C) NO. 12827 OF 2011

EXHIBIT P9 TRUE COPY OF THE PROCEEDING NO.B 21/08 DATED 15.2.2008 OF THE 1ST RESPONDENT

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 5.4.2008 SUBMITTED BY MR. M.K.ABDUL RAHIMAN, THE POWER OF ATTORNEY HOLDER OF THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P11 TRUE COPY OF REPRESENTATION DATED 12.5.2008 SUBMITTED BY MR. M.K.ABDUL RAHIMAN, THE POWER OF ATTORNEY HOLDER OF THE PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 8.7.2008 IN W.P.(C) NO.20510/2008 OF THIS HON'BLE COURT

EXHIBIT P13 TRUE COPY OF THE ORDER DATED 28.8.2008 OF THE 1ST RESPONDENT

EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 29.12.2008 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 9.2.2009 IN W.P.(C) NO.27670/2007 OF THIS HON'BLE COURT

EXHIBIT P16 TRUE COPY OF THE REPRESENTATION DATED 10.2.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P17 TRUE COPY OF THE JUDGMENT DATED 10.3.2010 IN W.P.(C) NO.6639/2009 OF THIS HON'BLE COURT

EXHIBIT P17(a) TRUE COPY OF THE ORDER NO.2010/17266/11/G-7 DATED 5.5.2010 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P18 TRUE COPY OF THE REPRESENTATION DATED 17.5.2010 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT

EXHIBIT P19 TRUE COPY OF THE REPRESENTATION DATED 25.5.2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P20 TRUE COPY OF THE REMINDER DATED 7.3.2011 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT

EXHIBIT P21 TRUE COPY OF THE REMINDER DATED 7.3.2011 WP(C) NO. 12827 OF 2011

SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

RESPONDENT'S EXHIBITS

EXHIBIT R2(a) TRUE COPY OF THE GOVERNMENT CIRCULAR NO.5273/RD/PA3/06/LSGD DATED 28.11.2006

EXHIBIT R2(b) TRUE COPY OF THE GOVERNMENT CIRCULAR NO.27026/R&11/07 CRD DATED 24.10.2007