Kerala High Court

B.Sathyaseelan vs State Of Kerala on 17 March, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

   WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942

                       WP(C).No.19568 OF 2016(U)


PETITIONER:

      1        B.SATHYASEELAN
               S/O.BHASKARAN,RESIDING AT CHAIDHANYAM,
               (UMMARAPALLIL),KOTTATHALA.P.O,KOTTARAKKARA,PIN-
               691507.

      2        B.SUNDARAN AGED 50 YEARS
               S/O.BALAKRISHNAN.RESIDING AT
               'CHATHAINYAM',VALLAM,KOTTARAKKARA-691506.

               BY ADVS.
               SRI.P.G.JAYASHANKAR
               SMT.P.SREELAKSHMI
               SRI.V.SREEJAYAN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY,DEPARTMENT OF LOCAL SELF
               GOVERNMENT,GOVERNMENT SECRETARIAT,TRIVANDRUM-695001.

      2        THE ASST.EXECUTIVE ENGINEER
               BLOCK PANCHAYATH,VETTIKKAVALA,KOLLAM-691538.

      3        THE SECRETARY
               BLOCK PANCHAYATH,VETTIKKAVALA,KOLLAM-691538.

               R1 BY ADV.SRI.K.J.MANURAJ, GOVERNMENT PLEADER
               R3 BY ADV. SRI.V.JAYAPRADEEP SC

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-03-
2021, THE COURT ON 17-03-2021 DELIVERED THE FOLLOWING:
 WP(C).No.19568 OF 2016(U)

                                        2




                       W.P.(C) No.19568 of 2016
                    ------------------------------------------


                              JUDGMENT

The second petitioner undertook to execute a road work of

Vettikavala Block Panchayat as per Ext.P1 agreement executed on

08.06.1999. The first petitioner was the Power of Attorney holder of

the second petitioner for the said work. The site of the work was

handed over to the first petitioner on 01.07.1999. After the

commencement of the work, since it was found that certain works not

included in the agreement are also to be executed by the contractor,

the estimate of the work was revised twice. Later, the first petitioner

sought revision of the estimate again based on the revision of the

schedule of rates introduced by the Government with effect from

1.7.1999. Though the said revision was also proposed by the third

respondent, the Secretary of the Block Panchayat, the same was not

approved by the competent authority. Nevertheless, a supplementary

agreement was executed by the third respondent with the second

petitioner on 04.02.2002 in terms of which the unapproved revision of

the estimate of the work in tune with the schedule of rates introduced

by the Government with effect from 01.07.1999 was made part of the WP(C).No.19568 OF 2016(U)

agreement. Ext.P3 is the supplementary agreement executed in this

regard on 04.02.2002. The first petitioner has completed the work on

31.03.2002. The grievance of the petitioners in the writ petition

concerns the refusal on the part of the respondents in disbursing the

amounts due to them in terms of Ext.P3 supplementary agreement. It

is alleged by the petitioners that the payment is withheld since the

revision of the estimate which is made part of the supplementary

agreement was not approved by the competent authority. The case of

the petitioners in essence is that in the light of G.O.(MS)No.17/2001-

PLANNING dated 18.06.2001, since the request for revision of estimate

has not been approved by the competent authority within the time

stipulated therein, the third respondent was justified in entering into

Ext.P3 supplementary agreement with the second petitioner and

therefore, they are entitled to payments in accordance with Ext.P3

supplementary agreement.

2. Heard the learned counsel for the petitioners, the

learned Government Pleader as also the learned Standing Counsel for

the third respondent.

3. The materials on record indicate that the authority

constituted by the Government, viz, the State Level Technical

Committee for approving the revised estimate proposed by the third

respondent, has examined the revised estimate and decided not to WP(C).No.19568 OF 2016(U)

approve the same holding that the petitioners having undertook to

execute the work based on the estimate prepared in terms of the pre-

revised schedule of rates cannot be extended the benefit of the

revised schedule of rates. It is seen that pursuant to a direction issued

by this Court, the Government has rejected the claim of the petitioners

accepting the stand taken by the State Level Technical Committee in

terms of Ext.R3(c) order. In Ext.R3(c) order, the Government has

arrived at the amount payable to the petitioners in respect of the work

at Rs.20,17,340/-. The relevant portion of the order reads thus:

"5. The estimate was again revised as per PWD schedule rate of 1999 which was Rs.38,92,000/-. The Block Panchayat Committee had resolved to give the rate revision.

6. As per letter No.DB1/7804/08CE/LSGD dated 06.01.2009 of SLTC, when a work was awarded to a contractor, the estimate of the work cannot be revised, and revised A.S. or T.S. cannot be granted. If a contractor is granted a work as per agreement in writing, he should complete the work as per the agreement and maintain the road during the security period. Hence the committee decided not to give permission to the revised estimate.

7. It is seen that the work was lagged forever as desired by the contractor. Rate revision was one of the examples. Rate revision in the M.Book is also another factor, which was done without getting sanction from competent authority.

8. Government had authorised Rs.15,45,794/- as cost of the road work, Rs.3,29,340/- as cost of the bitumen, and Rs.1,42,206/- as admitted balance amount to the petitioner. Thus the total amount comes to Rs.20,17,340/-.

9. As Government was allowed Rs.20,17,340/- instead of Rs.18,84,710/- (Maximum amount payable to the road work as WP(C).No.19568 OF 2016(U)

per the local rate during that period as per G.O.(P)No.218/98/LAD dated 23.10.1999), the petitioner is not eligible for any more amount in the work. Hence his request is rejected."

Despite Ext.R3(c) order, on a subsequent representation preferred by

the first petitioner before the Chief Minister of the State, the

Government revised Ext.R3(c) order and extended to the petitioners

the benefit of the revision of the schedule of rates introduced with

effect from 1.7.1999 as a special case, having regard to the health

condition of the first petitioner, after holding that he is otherwise not

entitled to the benefit of the same. Ext.P16 is the order issued by the

Government in this regard. In Ext.P16 order, the revised amount

payable to the petitioners for the work executed by them applying the

schedule of rates introduced with effect from 1.7.1999 was arrived at

Rs.29,27,736.76/-. Pursuant to Ext.P16 order, the petitioners were

disbursed the amount ordered therein. The memo filed by the

Government Pleader pursuant to the interim order passed by this

Court on 22.01.2021 indicates that in the matter of arriving at the said

figure, the contractor's profit and tender excess have not been

reckoned. In other words, the only surviving question is as to whether

the petitioners are justified in claiming the contractor's profit and

tender excess on the estimate of the work prepared applying the

schedule of rates for the works introduced with effect from

01.07.1999.

WP(C).No.19568 OF 2016(U)

4. In Ext.R3(c) order as also in Ext.P16 order, the

Government has categorically found that the petitioners are not

entitled to the benefit of the schedule of rates introduced by the

Government with effect from 1.7.1999. The said orders have not been

challenged by the petitioners. That apart, Ext.P16 order of the

Government would also show that the petitioners have been extended

the benefit of the revised schedule of rates, having regard to the

health condition of the first petitioner and treating the case as a

special case. As noted by the Government in Ext.R3(c) order, it is a

case where the second petitioner has entered into a solemn

agreement with the third respondent undertaking to execute the work

on an estimate prepared at the pre-revised schedule of rates. Insofar

as the petitioners are unable to establish their right to claim

contractors' profit and tender excess on the estimate prepared

applying the schedule of rates introduced by the Government with

effect from 1.7.1999, no relief can be granted to them in a

proceedings under article 226 of the Constitution.

In the said view of the matter, there is no merit in the writ

petition and the same is, accordingly, dismissed.

Sd/-

                                           P.B.SURESH KUMAR

Mn                                                  JUDGE
 WP(C).No.19568 OF 2016(U)





                             APPENDIX
PETITIONERS' EXHIBITS:

EXHIBIT P1        TRUE COPY OF AGREEMENT NO.2 OF 99 -2000 FOR WORKS
                  DATED 08.06.1999

EXHIBIT P2        TRUE COPY OF ORDER BEARING

NO.G.O(RT)NO.606/99/PWD DATED 23.06.99

EXHIBIT P2(A) TRUE COPY OF THE ORDER DATED 10.07.2000 ISSUED BY THE COMMISSIONER OF RURAL DEVELOPMENT

EXHIBIT P3 TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 04.02.2002

EXHIBIT P4 TRUE COPY OF THE REVISED ESTIMATE PURSUANT TO EXHIBIT P3

EXHIBIT P5 TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE 2ND PETITIONER

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 11.06.2004 IN O.P.NO.2058/2002 OF THIS HON'BLE COURT

EXHIBIT P7 TRUE COPY OF THE LETTER BEARING NO.C/3777/98 DATED 02.11.2002

EXHIBIT P7(A) TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT UNDERTAKING THE CHECK MEASUREMENT AND THE FINALIZATION OF THE BILL PURSUANT TO THE REVISED ESTIMATE BEARING NO.47602/DD1/2007/LSGD DATED 29.01.2008

EXHIBIT P8 TRUE COPY OF THE MEASUREMENT BOOK AS OBTAINED UNDER THE RIGHT TO INFORMATION

EXHIBIT P10 TRUE COPY OF THE APPLICATION FILED UNDER RIGHT TO INFORMATION ACT

EXHIBIT P11 TRUE COPY OF THE REPLY OBTAINED BY THE 1ST PETITIONER

EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 21.04.2016

EXHIBIT P13 TRUE COPY OF THE LETTER NO.LSGD-DD1/156/2015-LSGD DATED 02.05.2016 WP(C).No.19568 OF 2016(U)

EXHIBIT P15 TRUE COPY OF THE NEWS PAPER REPORT DATED 06.01.2017 OF MATHRUBHUMI DAILY.

EXHIBIT P16 TRUE COPY OF THE ORDER BEARING NO.GO NO.350/2017/LSGD DATED 07.02.2017.

EXHIBIT P17 TRUE COPY OF THE RESOLUTION NO.C-1685/2014 DATED 06.03.2017.

EXHIBIT P18 TRUE COPY OF THE GO(RT) NO.989/2017/LSGD DATED 30.03.2017

EXHIBIT P19 TRUE COPY OF THE REPRESENTATION DATED 17.05.2017 FILED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P20 TRUE COPY OF THE GO(RT) NO.1689/2017/LSGD DATED 23.05.2017.

EXHIBIT P21 TRUE COPY OF THE REPRESENTATION DATED 20.07.2017 FILED BY THE 1ST PETITIONER.

EXHIBIT P22 TRUE COPY OF THE LETTER NO.C-1685/2014 DATED 25.07.2016(sic 25.07.2017)

EXHIBIT P23 TRUE COPY OF THE PETITIONER PREFERRED A DETAILED REPLY DATED 31.07.2017 TO EXT.P22, POINTING OUT THE ARBITRARINESS AND ILLEGALITIES EXHIBITED BY THE 3RD RESPONDENT.

EXHIBIT P24 TRUE COPY OF THE RELEVANT EXTRACTS OF GOVERNMENT ORDER GO(MS)NO.17/2001/PLANNING DATED 18.06.2001

RESPONDENTS' EXHIBITS:

ANNEXURE R3(A) COPY OF THE LETTER DTD 02.03.2018 OF R3

ANNEXURE R3(B) COPY OF THE LETTER DTD 07.03.2018 OF R3

EXHIBIT R3(A) COPY OF THE AGREEMENT DATED 31.03.2001

EXHIBIT R3(B) COPY OF THE LETTER TO THE GOVT DTD 07.03.2018 BY R3

EXHIBIT R3(C) COPY OF THE GOVT ORDER NO.768/2015/LSGD DATED 17/03/2015

EXHIBIT R3(D) COPY OF THE MINUTES OF R3 COMMITTEE ON 13/02/2017 WP(C).No.19568 OF 2016(U)

EXHIBIT RE(E) COPY OF THE LETTER DATED 23.05.2017

EXHIBIT R3(F) COPY OF THE DECISION DT 07.06.2017 OF THE R3 PANCHAYATH COMMITTEE

EXHIBIT R3(G) COPY OF THE RECEIPT DATED 07.06.2017 ISSUED BY THE 1ST PETITIONER ON RECEIPT OF RS.9,66,344/-

//TRUE COPY// PA TO JUDGE