Boban Varkey vs The Peruvanthanam Grama ...
2022 Latest Caselaw 3789 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
                   WP(C) NO. 1189 OF 2021
PETITIONER/S:

          BOBAN VARKEY, AGED 56 YEARS
          S/O.LATE VARKEY, PATHICKAL, PALOORKAVU,
          IDUKKI, PIN - 685 532.
          BY ADV K.R.SUNIL


RESPONDENT/S:

    1     THE PERUVANTHANAM GRAMA PANCHAYATH
          PERUVANTHANAM P.O., IDUKKI DISTRICT, PIN - 685
          532.
    2     THE SECRETARY, PERUVANTHANAM GRAMA PANCHAYATH
          PERUVANTHANAM P.O., IDUKKI DISTRICT, PIN - 685
          532.
    3     MINISTRY OF RURAL DEVELOPMENT
          GOVERNMENT OF INDIA, KRISHI BHAVAN, DR.RAJENDRA
          PRASAD ROAD, NEW DELHI - 110 001, REPRESENTED BY
          ITS SECRETARY.
    4     THE MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT
          GUARANTEE SCHEME (KERALA)
          5TH FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIARY
          P.O., THIRUVANANTHAPURAM , PIN 695 003
          REPRESENTED BY ITS MISSION DIRECTOR.
    5     THE DISTRICT PROGRAM CO-ORDINATOR
          THE MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT
          GUARANTEE SCHEME, DISTRICT PANCHAYATH BUILDING,
          PAINAVU P.O., IDUKKI DISTRICT, PIN - 685 603.
    6     THE BLOCK PROGRAM OFFICER
          OFFICE OF THE BLOCK PROGRAM OFFICER, AZHUTHA,
          PEERUMEDU P.O., IDUKKI, PIN - 685 531.
                                        -2-
W.P.(C). No. 1189 of 2021



               BY ADVS.
               NIDHIN RAJ VETTIKKADAN
               P.R.AJITH KUMAR, CGC
               ADVOCATE GENERAL OFFICE KERALA
               GOVERNMENT PLEADER
               PRAVEEN K.V
               C.S.AJITH PRAKASH


OTHER PRESENT:

               SMT.VIDYA KURIAKOSE, GP


        THIS      WRIT      PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION         ON    05.04.2022,    THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                     -3-
W.P.(C). No. 1189 of 2021



                            P.V.KUNHIKRISHNAN, J.
                            ======================================================

                               W.P.(C) No.1189 of 2021
                        =============================================================

                     Dated this the 5th day of April, 2022

                                         JUDGMENT

The above writ petition is filed with following prayers.

"1. To issue a writ of mandamus, orders or directions, directing 1st and 2nd respondents to forthwith disburse an amount of Rs.68,95,200/- (Rupees sixty eight lakhs ninety five thousand and two hundred) the amount due to the petitioner covered under Exhibit P3 to P16 work order and Ext.P17 contract.

2. To issue an order restraining the 1st and 2nd respondents from engaging any new contractors/work, till the settlement of the entire dues of the petitioner.

3. Such other orders, directions deem fit on facts and in the interests of justice.

4. To declare that the Exhibit P21 notification dated 27.11.2019 would not have any retrospective effect and would not affect or restrict the respondents 1 & 2 to carry out works in cluded in Exhibit P3 to P16 work orders under Exhibit P17 contract included in the action plan for the financial year 201-/2020 approved on 14/12/2018 and to disburse the amounts due to the petitioner.

W.P.(C). No. 1189 of 2021

5. To declare that all the respondents herein are jointly and severally liable to pay off the amount due to the petitioner for the materials already supplied pursuant to Exhibit P3 to P16 work orders under Exhibit P17 contract."

2. The petitioner is a C class licensed PWD Contractor,

who was entrusted with the contract for the supply of required

materials for the construction of 394 roof top rain water

harvesting structures as part of the decision No.3/1 by the 1 st

respondent Panchayat for the rainwater harvesting constructions

for the financial year 2019-20, as evident by Ext.P22. On

29.02.2020, the 6th respondent through Ext.P25 informed to

carry out all the activities and granted administrative as well as

technical sanction included in the action plan for the year 2019-

2020 before 27.11.2019. On 22.06.2020, the 6 th respondent

through Ext.P26 specifically directed the 1st respondent that

Ext.P21 notification dated 27.11.2009 is only having

prospective effect and further directed to carry out the entire

W.P.(C). No. 1189 of 2021

activities included in action plan for the financial year of 2019-

2020. In clause 11 of Ext.P17 agreement, it is submitted that

the petitioner is entitled to get the full value of the materials

supplied on the basis of Ext.P3 to P6 work orders since the

petitioner completed his part of contract. Ext.P20 letter dated

18.02.2020 issued by the 4th respondent also direct the 1st

respondent Panchayat to carryout the entire work included in

their action plan for the financial year 2019-20. The decision of

the 1st respondent dated 04.08.2020 as decision 15/1 through

Ext.P24 unanimously decided to pay the outstanding amount

due to the petitioner for the materials unloaded in 72 sites. It is

the case of the petitioner that in the counter affidavit dated

22.09.2021 of the 1st and 2nd respondents, it is admitted about

the unloading of materials in 154 work sites and payment due to

the petitioner in 67 work sites. The counter affidavit of the 6 th

respondent dated 22.11.2021 also admits in paragraphs 7 and 8

W.P.(C). No. 1189 of 2021

that the petitioner completed the entire works pursuant to

Ext.P3 to P16 work orders. As per statement dated 03.02.2022

filed on behalf of the 3rd respondent it is also admitted that the

funds ear-marked for the purpose of constructing the rainwater

harvesting units was already sanctioned/released by the 3 rd

respondent to the Government of Kerala. The statement filed

by the 4th respondent also admits the fact that unloading of the

materials in the work sites and the notification dated 27.11.2019

is only having prospective effect. It is submitted that as per

clause 11 in Ext.P17 agreement, the petitioner is entitled to the

full amount at the time of successful completion of his work.

Hence, the petitioner prays that the amount may be disbursed.

3. Heard the learned counsel for the petitioner, the

learned Standing Counsel appearing for the Panchayat, learned

Government Pleader for official respondents and also the

learned Central Government Counsel for the 3rd respondent.

W.P.(C). No. 1189 of 2021

4. When this writ petition came up for consideration on

18.02.2021, this Court passed the following order:

"The 2nd respondent-Panchayat is directed to file an affidavit before this Court about the stage of the work. The 2nd respondent cannot delay the work based on Ext.P21, because that is applicable only prospectively. The Government Pleader also after getting instructions from the Mission Director, submitted that Ext.P21 is applicable only prospectively. Moreover, it is an admitted fact that the petitioner unloaded the materials and if that is the case, the petitioner cannot wait indefinitely to get the value of the materials. The 2nd respondent will specifically mention in the affidavit about the time necessary to complete the work. The affidavit shall be placed on record within two weeks.

Post on 8.3.2022."

5. Based on the above order, a report is produced by

the Standing Counsel appearing for the Grama Panchayat. In

the report, the materials unloaded by the petitioner is mentioned

as 154 and the work completed is mentioned as 87. It is also

stated that the amount due to the petitioner, even though the

W.P.(C). No. 1189 of 2021

materials are supplied, is 66. Therefore, from the report it

appears that the petitioner is entitled to the amount for

unloading materials in 66 work sites. There is no dispute on the

same. Moreover, in the order dated 18.02.2022, this Court

clearly mentioned that Ext.P21 order is only prospective.

6. The learned Central Government Counsel submitted

that in the statement dated 03.02.2022 filed by the 3 rd

respondent, it is stated that the amount to be disbursed to the 4 th

respondent has already disbursed to the State Government. The

relevant portion is extracted hereunder:

"3] It is respectfully submitted that Rs.52,569.56 lakhs (including Central share of Rs.34,633.51 lakhs) were available with the State Government for meeting the expenditure on "Material & Admin component" of Mahatma Gandhi NREGA during the year 2019-20. It is submitted that fund for material and admit component is being sanctioned/released by the Ministry to Government of kerala directly and the 3rd respondent does not approve any specific project."

W.P.(C). No. 1189 of 2021

7. In the light of the above and also in the facts and

circumstances of the case, I am of the view that respondents 1

and 2 can approach the competent authority to get the fund and

the competent authority will disburse the fund, if the request

submitted by the Panchayat is in order.

Therefore, this writ petition is disposed of directing the

respondents 1, 2 and 4 to do the needful to see that the amount

due to the petitioner is paid, as expeditiously as possible, at any

rate, within three months. If there is any dispute regarding the

remaining amount, the petitioner is free to approach the

competent authority, in accordance to law.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 1189 of 2021

APPENDIX OF WP(C) 1189/2021

PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE C CLASS LICENCE ISSUED BY THE PUBLIC WORKS DEPARTMENT TO THE PETITIONER.

EXHIBIT P2 THE TRUE COPY OF THE GST REGISTRATION DETAILS OF THE PETITIONER.

EXHIBIT P3 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 28/12/2019.

EXHIBIT P4 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 28/12/2019.

EXHIBIT P5 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 28/12/2019.

EXHIBIT P6 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 28/12/2019.

EXHIBIT P7 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 28/12/2019.

EXHIBIT P8 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 28/12/2019.

W.P.(C). No. 1189 of 2021

EXHIBIT P9 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.

EXHIBIT P10 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.

EXHIBIT P11 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.

EXHIBIT P12 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.

EXHIBIT P13 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.

EXHIBIT P14 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.

EXHIBIT P15 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.

W.P.(C). No. 1189 of 2021

EXHIBIT P16 THE TRUE COPY OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR THE CONSTRUCTION OF 394 ROOF TOP RAIN WATER HARVESTING TANKS DATED 04/01/2020.

EXHIBIT P17 THE TRUE COPY OF THE AGREEMENT EXECUTED BY THE 2ND RESPONDENT WITH THE PETITIONER DATED 09/08/2019 FOR THE SUPPLY OF REQUISITE MATERIALS INCLUDING IN EXHIBIT P3.

EXHIBIT P18 THE TRUE COPY OF THE SAMPLE BILL PREPARED BY THE 1ST RESPONDENT.

EXHIBIT P19 THE TRUE COPY OF THE ORDER DATED 16/03/2020 OF THE 2ND RESPONDENT. EXHIBIT P20 THE TRUE COPY OF THE LETTER DATED 18/02/2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P21 THE TRUE COPY OF THE NOTIFICATION DATED 27/11/2019 ISSUED BY THE MINISTRY OF RURAL DEVELOPMENT.

Exhibit P22 THE DECISION OF PANCHAYAT DATED 4/12/2018 FOR THE ACTION PLAN FOR THE FINANCIAL YEAR 2019-2020 RESOLVED BY THE 1ST RESPONDENT.

Exhibit P23 TRUE COPY OF THE LETTER DATED 10/5/2020 SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT.

Exhibit P24 THE TRUE COPY OF THE DECISION TOOK BY 1ST AND 2ND RESPONDENT IN THEIR MEETING HELD ON 4/8/2020 RECEIVED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.

EXHIBIT P25 THE LETTER DATED 29.02.20 ISSUED BY THE 6TH RESPONDENT DIRECTING THE 1ST RESPONDENT TO PROCEED WITH THE REMAINING 137 WORKS IN ACCORDANCE WITH THE ACTION PLAN FOR THE FINANCIAL YEAR 2019-2020

W.P.(C). No. 1189 of 2021

EXHIBIT P26 THE LETTER 22.06.2020 THE 6TH RESPONDENT TO THE 1ST RESPONDENT TO CONTINUE WITH ALL THE REMAINING WORKS INCLUDED IN THE ACTION PLAN FOR THE FINANCIAL YEAR 2019-2020 AT THE RESPONSIBILITY OF THE 1ST RESPONDENT RESPONDENT'S EXHIBITS EXHIBIT R6(A) TRUE COPY OF THE LETTER NO.L-

12053/04/2019-REI(367748) DATED 03.01.2020 EXHIBIT R6(B) TRUE COPY OF THE LETTER NO.451/18/MGNREGA/IDK DATED 13.02.2020 EXHIBIT R6(C) TRUE COPY OF THE LETTER NO.A3-426/2020 DATED 15.02.2020 EXHIBIT R6(D) TRUE COPY OF THE NOTIFICATION,DATED 27.11.2019.