The Travancore Devaswom Board vs The Deputy Director
2021 Latest Caselaw 13873 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
                              &
     THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
  TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                     DBP NO. 58 OF 2020
    IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB
                PROCEEDINGS INITIATED - REG.

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

PETITIONER/S:

         THE TRAVANCORE DEVASWOM BOARD
         REPRESENTED BY ITS EXECUTIVE ENGINEER,
         MAVELIKKARA
         BY ADV G.BIJU


RESPONDENT/S:

         THE DEPUTY DIRECTOR
         LOCAL FUND AUDIT,
         THIRUVANANTHAPURAM
         BY ADV GOVERNMENT PLEADER,
         SRI. T.K. ANANDAKRISHNAN
         SRI. P.RAMACHANDRAN (AMICUS CURIE)


     THIS DEVASWOM BOARD PETITION HAVING COME UP FOR
ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                 -2-
DBP No.58 of 2020



                             JUDGMENT

Ravikumar, J.

TDB Report No.47 of 2020 of the learned Ombudsman for

Travancore and Cochin Devaswom Board in Petition No.21 of

2019 led to the registration of the above mentioned DBP. As per

petition No.21 of 2019 the Travancore Devaswom Board applied

for approval of the revised estimate as also sanction for payment

of final bill to the contractor for the work of construction of an

indoor stadium attached to Devaswom Board College, Parumala

in Thiruvalla Group. Obviously, earlier appropriate

sanction/approval was given for the original estimate of

Rs.65,80,000/-. The revised estimate is for Rs.71,45,335/-. The

estimate was prepared for the project based on SOR-2012. The

learned Ombudsman in the report sounded a caution with

respect to the care to be taken in future while preparing or while

filing the Maramath Petition seeking approval for estimate. It is

only apposite to extract paragraph 3 in this regard and it reads

DBP No.58 of 2020

thus:-

"3. Though there is only a marginal excess over the estimate already sanctioned, it is to be noticed that the admission by the Engineering Department that all the items and quantities were not properly taken into account, shows that while the Maramath Petition was filed, the estimate prepared was not correct. This shall not be repeated, as the preparation of the estimate for sanction by the Honourable High Court has to be after proper evaluation by the Engineering Department. More care shall be taken in this regard."

2. It would reveal that the Engineering Department

admitted that all the items and quantities were not properly

taken in to account before the Maramath petition was filed. It is

in the said circumstances that the learned Ombudsman had to

observe that the Engineering Department of the Devaswom shall

make a proper evaluation and the prepare the estimate before

moving the Maramath petition as any estimate prepared without

such evaluation is bound to be incorrect. We are in full

agreement with the said suggestion made by the learned

Ombudsman and in such circumstances, we order that the

Engineering Department of the TDB shall hereafter strictly

DBP No.58 of 2020

adhere to the suggestions made in paragraph 3 of the TDB Report

No.47 of 2020. That apart, in paragraph 4 of the report, it is

stated that the records would reveal that the soil test was done

only after preparation of the estimate and that it necessitated to

revise the estimate. Furthermore, it is stated that the nature of

the bricks for construction was to be changed at the time of

execution was also a reason for the increase in the estimated

cost. Taking note of the aforesaid aspects pointed out by the

learned Ombudsman in the report, this court directed the Chief

Engineer of the TDB to file an affidavit touching those aspects.

3. The very fact is that Petition No.21 of 2019 is a

consolidated one for approval of the revised estimate and

sanction for the payment of final bill to the contractor itself, is a

matter of concern and at any rate, it cannot be appreciated. The

learned Amicus Curie to the learned Ombudsman would submit

that in fact, such an application was filed about an year after the

completion of the construction. The TDB is expected to get

DBP No.58 of 2020

prepared the estimate for any particular project first and only on

approval of the estimate, in case it exceeds Rs.20 lakhs, that the

work could be commenced. True that in the case on hand for the

original estimate of Rs.65,80,000/- approval was obtained. But

then, we are at loss to understand as to how and under what

circumstances construction in excess of estimated amount was

permitted to be done. Above all, there is no justification in

moving an application for approval of the revised estimate much

after the completion of the construction. Taking note of the

observation of the learned Ombudsman in paragraph 4 of the

TDB report, we directed the Chief Engineer to file an affidavit

and in the affidavit filed in compliance with the said direction,

by way of an explanation, it is stated that the project in question

is one where the major portion of the fund is coming from the

University Grands Commission and in fact, UGC has allotted an

amount of Rs.40 lakhs for the said project. If the work of the

project was not commenced and completed in time, the fund

DBP No.58 of 2020

allotted by the UGC would have to be refunded with interest. It

is such circumstances that is assigned as a reason for preparing

the estimate before conducting the soil test. Furthermore, it is

stated that the work had commenced on 22.09.2015 and the soil

test was conducted on 20.12.2015, but before deciding the type of

foundation and the execution of the foundation work. After

stating so in paragraph 5, the Chief Engineer went on to state

thus: -

"As per the result of the soil test, it was recommended to provide stepped footings over metal cushioning instead of normal trapezoidal column footings. The foundation footing was done as per the recommendation of the structural analysis and hence the stability and safety of the structure are assured."

4. The project in question is an indoor stadium for a

college. In the order dated 05.03.2021 itself, taking note of that

fact, we made an observation as hereunder:

"When that be the work, we are at a loss to understand as to how the estimate could have been prepared and work could have been awarded without conducting soil test which was absolutely essential ad inevitable to assess and ascertain the stability of the site."

DBP No.58 of 2020

5. It is of common knowledge the nature of the

foundation to be laid would depend upon the nature of the soil.

Hence, an estimate without conducting the soil test, especially in

respect of a stadium, besides being inaccurate, can lead to

casualty in case of commencement of actual construction before

soil test. True that the affidavit dated 23.03.2021 filed by the

Chief Engineer TDB would now give the impression that though

the estimate was prepared before conducting the soil test the

actual work, including laying of foundation was commenced only

as per the recommendation for the structural analysis after the

soil test. We have no hesitation to hold that whatever be the

urgency or the concern of TDB in respect of any work of like

nature, preparation of estimate and actual commencement of the

work can only be after the conduct of the soil test. Only after

conducting the soil test suitability and feasibility of construction

of any structure in any given site can be decided. Ignoring

relevance and importance of soil test or taking it lightly cannot

DBP No.58 of 2020

be appreciated. It is only to be condemned. Preparing an

estimate and awarding contract before conducting the soil test

cannot be a matter that can be approved. We make it clear that

in case of occurrence of any such incident in future will be

viewed very seriously an needless to say that, in such eventuality

the persons responsible for such instances would have to be

proceeded with in accordance with law.

6. Reverting to the case on hand, as already noticed, the

affidavit would explain the circumstances as to why a revision of

the estimate became essential. As noticed by the learned

Ombudsman, there is no huge difference between the original

estimate and the revised estimate. Taking into consideration the

said aspect and also the circumstances that necessitated the

preparation of a revised estimate, we are inclined to allow the

application. We are also persuaded to allow this application in

view of the specific assurance given by the Chief Engineer that

the construction was actually commenced only after conducting

DBP No.58 of 2020

the soil test and in strict terms of the recommendations of the

structural analysis. Consequently, petition No.21 of 2019 will

stand allowed. If the account in respect of the project in question

was not already subjected for audit, after completion of work it

shall be subjected to audit, in accordance with law, expeditiously,

at any rate, within a period of one month.

DBP is ordered accordingly.

Sd/-

C.T.RAVIKUMAR Judge

sd/-

MURALI PURUSHOTHAMAN Judge

das