V.J. Varghese vs Alappzha Municipality
2022 Latest Caselaw 8701 Ker

Citation : 2022 Latest Caselaw 8701 Ker
Judgement Date : 7 July, 2022

Kerala High Court

V.J. Varghese vs Alappzha Municipality on 7 July, 2022

WP(C) NO. 29677 OF 2012            1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
      THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                          WP(C) NO. 29677 OF 2012
PETITIONER/S:

               V.J. VARGHESE
               AGED 53 YEARS
               ALPHONSA NIVAS, VALIYAMARAM WARD, THIRUVAMBADY PO
               ALAPPUZHA.

               BY ADVS.
               SRI.K.L.VARGHESE (SR.)
               SRI.RANJITH VARGHESE
               SRI.RAHUL VARGHESE
               SMT.SANTHA VARGHESE



RESPONDENT/S:

               ALAPPZHA MUNICIPALITY
               REPRESENTED BY THE MUNICIPAL SECRETARY, ALAPPUZHA


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 29677 OF 2012               2




                          P.V.KUNHIKRISHNAN, J
                    --------------------------------------------
                        W.P.(C) No.29677 of 2012
                       --------------------------------------
                   Dated this the 7th day of July, 2022


                                 JUDGMENT

The above writ petition is filed with following prayers :

"(i) A writ of certiorari or any other appropriate writ, order or direction be issued, calling for all the documents leading to Ext.P6 and quash the same.

(ii) A writ of mandamus or any other appropriate writ, order or direction be issued, directing the respondent to issue tender documents to the petitioner for the works tendered by the respondent notwithstanding Ext.P6, if the petitioner is otherwise qualified.

(iii) Grant an order of stay of operation of Ext.P6 including implementation of the coercive steps indicated therein.

(iv) Grant costs to the petitioner and such other reliefs as are prayed for and deemed fit to be granted in the circumstances of the case." [SIC]

2. It is the case of the petitioner that a Civil Engineering

construction work of retaining wall under Ext.P1 agreement for

the respondent was delayed due to change in location by the

respondent. According to the petitioner, since the scope of

work changed, Ext.P3 revised estimate was approved by the

Municipal Council by Ext.P4. After completion of work, CCII and

final bill under Ext.P5 was raised which was settled on

25.10.2010 without any penalty or even a murmur against the

petitioner. However, later on purportedly on account of the

audit objections, petitioner has been issued Ext.P6 notice

demanding an amount of Rs.70,835/- on account of alleged

delay in completion of work and another amount of Rs.56,788/-

as excess paid as per the revised estimate, thus totalling

Rs.1,27,613/-.

3. Heard the learned counsel for the petitioner and the

learned counsel appearing for the respondent.

4. The counsel for the petitioner submitted that after

settling the final bill based on an audit report, the respondent

cannot issue Ext.P6. The counsel also submitted that Ext.P6 is

issued without giving an opportunity of hearing to the

petitioner. The counsel also relied the judgment of this Court in

U.K.Mohamed v. Executive Engineer, PWD Division,

Kasaragod and others [2015 SCC Online Ker 33892].

5. This Court considered the contentions of the

petitioner. I perused Ext.P6. I also perused Ext.P5. Ext.P5 is the

final bill passed by the Engineer of the Municipality and the

Secretary. This was passed in the year 2010. Thereafter, the

present Ext.P6 notice was issued on 25.10.2012 and that also

without giving an opportunity of hearing to the petitioner.

Moreover, similar point is considered by this Court in

U.K.Mohamed's case (supra). It will be better to extract the

relevant portion of the judgment.

"3. The learned Government Pleader seeks time for filing counter affidavit. This writ petition was admitted on 17.01.2013 and though the service was complete, no counter affidavit has been filed, until today. Hence the request of the learned Government Pleader seeking for further time to file a counter affidavit is rejected.

4. Since no counter affidavit has been filed in this case, which is pending since 2012, it has to be assumed that there is no dispute regarding the liability to pay. Petitioner has since produced Ext.P6 dated 1/12/2012 by which he was informed

that an amount of Rs.4,11,000/- has been withheld from the final bill based on an audit objection. It is mentioned in Ext.P6 that there has been certain objection with reference to the rate allowed and rate quoted. A perusal of Ext.P6 does not instill confidence in this Court to permit the Executive Engineer to withhold such amount on the basis of audit objection. This is not an instance where the bill given by the petitioner had not been passed by the competent authority. If the bill has been passed, definitely there is an obligation to pay the amount, unless there are valid reasons for not paying the same.

5. In the said circumstances, deduction of the amount is clearly arbitrary and without taking into consideration the provisions of the contract. Subsequent audit objection cannot be a reason for withholding the amount from the contractors

bill unless the liability is admitted by the contractor."

6. In this case also, there is no counter affidavit. This

writ petition is pending before this Court from 2012 onwards. In

the light of the above judgment, I think the petitioner has to

succeed. Moreover, the delay aspect raised in Ext.P6 is not

correct in the light of Exts.P2 and P3. Ext.P2 is the letter from

the Municipal Councillor to the Secretary to sanction the change

in site location. Ext.P4 is the revised estimate sanctioned by the

Municipal Council.

7. In the light of the same, I think Ext.P6 is

unsustainable. Moreover, Ext.P6 is an order passed without

giving an opportunity of hearing to the petitioner. In addition to

all this, similar point is considered by this Court in