Kerala High Court
Sabu Sebastian vs Assistant Engineer on 3 January, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
WP(C) NO. 40465 OF 2022
PETITIONER:
SABU SEBASTIAN,
AGED 56 YEARS
S/O LATE SEBASTIAN
RESIDING AT PUTHUPPALLYKUNNEL HOUSE,
AMAYANOOR PO,
KOTTAYAM - 686019.
BY SMT. SUMATHY DANDAPANI (SR)
ADV. MILLU DANDAPANI
RESPONDENTS:
1 ASSISTANT ENGINEER,
OFFICE OF THE ASSISTANT ENGINEER
LSGD (LID & EW) SECTION
PUTHUPALLY GRAMA PANCHAYAT
PUTHUPALLY, KOTTAYAM - 686011.
2 PUTHUPALLY GRAMA PANCHAYAT
PUTHUPALLY, KOTTAYAM - 686011
REPRESENTED BY ITS SECRETARY.
3 STATE OF KERALA
REPRESENTED BY SECRETARY TO THE GOVERNMENT,
FINANCE DEPARTMENT,
GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM - 695001.
4 RURAL DEVELOPMENT COMMISSIONER
RURAL DEVELOPMENT COMMISSIONERATE,
SWARAJ BHAWAN, NANDANKODE,
KAVIDIYAR P.O.,
THIRUVANANTHAPURAM 695003.
BY ADVS.
SRI.K.S.ARUN KUMAR, SC
W.P.(C) No.40465/22 -:2:-
SMT. K.AMMINIKUTTY SR. GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23.11.2023, THE COURT ON 03.01.2024 DELIVERED THE
FOLLOWING:
W.P.(C) No.40465/22 -:3:-
BECHU KURIAN THOMAS, J.
--------------------------------
W.P.(C) No.40465 of 2022
---------------------------------
Dated this the 3rd day of January, 2024
JUDGMENT
The writ petition is filed seeking to quash Ext.P8 stop memo and
also to make good the cost incurred by the petitioner for the execution of
work under Ext.P2 tender.
2. A tender was invited by the first respondent on 03-04-2022 for
the construction of the work titled 'Puthuppally Food Processing Unit' to be
completed within 12 months. The project was part of the National Rural
Urban Mission (NRUM). Petitioner submitted his bid, and as per Ext.P3
dated 25-05-2022, he was informed that the contract is awarded to him.
Thereafter, an agreement was executed on 06-06-2022 for the
construction of the food processing unit.
3. While the petitioner was carrying on the construction activities, by
Ext.P8 letter dated 29-07-2022, the first respondent directed the petitioner
to stop all further works pursuant to the agreement. The reason stated in
Ext.P8 is that as per the communication dated 21-07-2022 from the fourth
respondent, new works after 31-03-2022 ought not to be commenced, and
that amounts will not be paid for such works.
4. Immediately on receipt of Ext.P8, stop memo, petitioner issued a
letter dated 01-09-2022 pointing out that he had already commenced the
work pursuant to the agreement and had finished item Nos.I, II, III, and
XVII scheduled to the agreement completely and had also finished 20% of
the work in item No.XII. It was further mentioned that petitioner had
already unloaded M-sand and broken stone at the site, and therefore, he
may be permitted to continue the construction as per the agreement.
5. By another communication dated 18-07-2022, the Panchayat had
informed the first respondent that since information has not been received
from the Central Government regarding the extension of the term of
projects under the National Rural Urban Mission Scheme, the bills, either
in part or in full of ongoing projects, ought to be prepared and submitted. It
is in the above circumstances that the petitioner has approached this
Court seeking directions to permit him to continue the work as well as to
pay the cost incurred by him till the stop memo was issued.
6. Respondents 1 and 2 have filed a counter affidavit pointing out
that the work has been directed to be stopped with the intention of
avoiding any additional loss to the petitioner in the event the Central
Government, which is the funding agency, stops funding the project. It was
further pointed out that since the extension of time is a policy of the
Central Government, it is beyond the control of the first and second
respondents. However, it was pointed out that the Panchayat has already
prepared a valuation for the work which was done by the petitioner till
date, and if the fourth respondent is willing to sanction the fund, the
Panchayat is ready to withdraw the stop memo and allow the petitioner to
finish the work. It was further stated that in respect of another work, a
savings of Rs.50,92,330/- has been returned from the Water Authority in
another project, which amount is kept idle in the Grama Panchayat
account and if the fourth respondent permits, the Panchayat is ready to
utilise the said fund for completing the project. The first respondent has
also stated that a request has already been made to the fourth respondent
for sanctioning the above.
7. A counter affidavit has also been filed by the fourth respondent -
the Rural Development Commissioner stating that the funds for the
National Rurban Mission are shared by the Central Government and the
State Government in the ratio of 60:40 and that the fund for the scheme is
kept in the State nodal account and allocated to the clusters as per
demands. It is also stated that the funds are allocated as and when they
receive the fund request. According to the fourth respondent on
18-07-2022, the State Government received a communication from the
Government of India bearing DO No. K-11011/01/2020-Rurban stating that
funds shall be released only for ongoing projects as critical gap funds, and
the same should be capped as per the committed liabilities as on
31-03-2022, and no funds shall be released for new projects undertaken
after 31-03-2022. It was further stated that this information was
communicated to the clusters by letter dated 21-07-2022. Fourth
respondent further averred that since funds will be provided only for the
works that started before 31-03-2022 and since the agreement for this
particular work was executed on 13-06-2022, it is not possible to give the
CGF fund to the contractor through the MIS platform. It is also stated that,
since the work is not considered as an ongoing work and the Government
of India has given permission only to make payments for works which are
ongoing, it is not possible to make payment for the work from the National
Rurban Mission.
8. I have heard Smt. Sumathy Dandapani, the learned Senior
Counsel, Sri. K.S. Arun Kumar, the learned Standing Counsel for
respondents 1 and 2 and Smt. Amminikutty, the learned Senior
Government Pleader.
9. Admittedly, bids were invited by the respondents for the work
'Puthuppally Food Processing Unit' on 03-04-2022, as is evident from
Ext.P2. The invitation was published by the respondents and the
petitioner had no role in the invitation. Pursuant to the said invitation,
petitioner submitted his tender and was awarded the work and the
agreement was also executed on 06-06-2022. Petitioner had even
commenced his construction activities thereafter. Even then, respondents
had no case that the work will not be funded by the Central Government.
After the work commenced, the first respondent issued Ext.P8 stop memo
on 29-07-2022. The work was directed to be stopped not because of any
default on the part of the petitioner but because the Government had not
agreed to fund the projects after 31-03-2022. These are all internal
matters and the petitioner had no role in it. The default is undoubtedly not
that of the petitioner, and he cannot be subjected to any prejudice.
10. During the course of arguments, it was submitted by the
respondents that whatever work carried out by the petitioner had been
demolished subsequent to Ext.P8 stop memo. In such circumstances, it
may not be conducive to quash Ext.P8 stop memo and permit the
petitioner to continue the work.
11. However, it is admitted in the counter affidavit of the first
respondent that the Panchayat has already assessed the quantum of work
carried out by the petitioner.
12. Since the petitioner cannot be blamed for issuing Ext.P8, and
the default is entirely that of the respondents in issuing an invitation for
tender after 31-03-2022 and also executing the agreement and thereafter
permitting the petitioner to commence work, under no circumstances can
any liability befall the petitioner. It is also evident from the affidavit of the
first respondent that funds are available with the Panchayat to fund almost
the entire project itself, provided the fourth respondent gives appropriate
sanction. However, since the project is no longer feasible, it is not legally
proper to permit the petitioner to continue with the work. However, the
respondents are liable to pay the cost incurred by the petitioner for the
work already carried out, till the issuance of the stop memo.
13. In the result, though Ext.P8 stop memo is not interfered with,
there will be a direction to respondents 1 to 4 to issue appropriate orders
to pay the entire cost of the work carried out by the petitioner under Ext.P4
agreement till Ext.P8 stop memo was issued and as already assessed by
the fourth respondent. The orders as directed above, shall be issued
within three months from the date of receipt of a copy of this judgment.
The writ petition is allowed in part.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 40465/2022
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REGISTRATION CARD
ISSUED TO THE PETITIONER HAVING VALIDITY
TILL 31.03.2023.
EXHIBIT P2 TRUE COPY E TENDER BEARING NO.
IV/AE/ISGD/PLY/2032 23/FIENT INVITED BY
THE 1ST RESPONDENT FOR THE CONSTRUCTION
OF A FOOD PROCESSING UNIT DATED
03.04.2022.
EXHIBIT P3 TRUE COPY OF THE SELECTION NOTICE ISSUED
TO THE PETITIONER BY THE 1ST RESPONDENT
DATED 25.05.2022.
EXHIBIT P4 TRUE COPY OF THE AGREEMENT DATED
06.06.2022 ENTERED INTO BETWEEN THE
PETITIONER AND THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE TERM DEPOSIT (FIXED
DEPOSIT) CERTIFICATE DATED 01.06.2022
ISSUED BY THE TREASURY SAVINGS BANK IN
THE NAME OF THE PETITIONER PLEDGED TO
THE 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE ACKNOWLEDGEMENT FORM OF
HANDING OVER THE SITE TO THE PETITIONER
DATED 06.06.2022 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE POWER OF ATTORNEY
EXECUTED BY THE PETITIONER IN FAVOUR OF
THE SOUTH INDIA BANK LTD.
EXHIBIT P7(a) TRUE COPY OF THE ITEM RATE BOQ SHOWING
ITEMIZED PRICE AND WORK SCHEDULE.
EXHIBIT P8 TRUE COPY OF THE LETTER BEARING NO.
51/AE/PLY/22-23 DATED 29.07.2022 ISSUED
BY THE 1ST RESPONDENT TO THE
PETITIONER .
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED
01.09.2022 SUBMITTED BY THE PETITIONER
TO THE 1ST RESPONDENT.
EXHIBIT P10 TRUE COPY OF LETTER BEARING NO. SC1-
1698/2022 DATED 18.07.2022 ISSUED BY THE
SECRETARY, PUTHUPPALLY GRAMA PANCHAYAT
TO THE 1ST RESPONDENT .
EXHIBIT P11 TRUE COPY OF THE LETTER BEARING NO.
3494/R14/2022/CRD DATED 21.07.2022
ISSUED BY THE RURAL DEVELOPMENT
COMMISSIONER TO ALL POVERTY ALLEVIATION
SECTION PROJECT DIRECTORS.
EXHIBIT P12 TRUE COPY OF THE DECISION TAKEN DURING
THE ORDINARY MEETING OF PUTHUPPALLY
GRAMA PANCHAYAT HELD ON 18.05.2022 TO
SELECT THE PETITIONER FOR CONSTRUCTION
OF PUTHUPPALLY FOOD PROCESSING UNIT.
