Achankunju v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945** **WP(C) NO. 27205 OF 2022** ## **PETITIONER/S:** ACHANKUNJU V AGED 62 YEARS AYANIVILAVEEDU, ARYANKAVU, PATHANAPURAM TALUK, KOLLAM, PIN - 691309 BY ADVS. R.JAIKRISHNA NARAYANI HARIKRISHNAN ANISH P. C.S.ARUN SHANKAR ## **RESPONDENT/S:** 1 STATE OF KERALA FORESTS AND WILDLIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM G.P.O, THIRUVANANTHAPURAM REPRESENTED BY THE SECRETARY., PIN - 695001 2 PRINCIPAL CHIEF CONSERVATOR OF FORESTS (FOREST MANAGEMENT) FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695014 3 ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FORESTS VANASREE COMPLEX, CHINNAKKADA P O, KOLLAM, PIN - 691001 4 CHIEF CONSERVATOR OF FORESTS SOUTHERN CIRCLE, VANASREE COMPLEX, CHINNAKKADA P O, KOLLAM, PIN - 691001 5 DIVISIONAL FOREST OFFICER ACHENKOVIL FOREST DIVISION, ACHENKOVIL P.O KOLLAM, PIN - 689696 SPL.GP .FORESTS T.P.SAJAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON 12.04.2023 DELIVERED THE FOLLOWING: W.P.(C).27205/2022 2 ## **JUDGMENT** Dated this the 12[th] day of April, 2023 The petitioner, a forest contractor, was awarded the contract for final felling and thinning works in five plantation sites in Achankovil Range under the Achankovil Forest Division. For the purpose of executing the works, the petitioner entered into five different agreements with the fifth respondent. With respect to the 1967 Manalar Matchwood Plantation work, which is the subject matter of this writ petition, the petitioner entered into Ext.P1 agreement. As per the terms of Ext.P1, the petitioner was given time from 12.03.2013 to 10.06.2013 for the felling and clearing of timber. According to the petitioner, he carried out the work in a time bound manner, but was not able to complete the work within the contract period since the depot union workers of Achankovil detained the lorries carrying timber at the Valayam plantation. The work could be continued only after the petitioner obtained a police protection order on 22.05.2013. To the petitioner's dismay, when the work was W.P.(C).27205/2022 3 re-commenced, the monsoon hit, making it impossible to continue the work. Pointing out these aspects, the petitioner submitted a representation before respondents 4 and 5, requesting to enlarge the contract period by one month. The respondents acceded to the request and extended the contract period by one month, with a condition that the petitioner should remit Rs.5,73,617/- towards penalty. The quantum of penalty was fixed on the basis of a mahazar containing the number of felled, unfelled and stocked trees. A perusal of the mahazar revealed the calculation of timber to be patently wrong. The petitioner therefore filed a representation explaining the factual position. Thereupon, a fresh mahazar was prepared by the Range Forest Officer wherein it was noted that only 335 trees are remaining to be felled, 1456 trees were cut down and issued stock numbers and 1444 trees cut down were yet to be issued with stock numbers. After the mahazar was thus corrected, the petitioner sent a communication stating that, on completion of the work, the amount of penalty can be appropriated from his bill amount. W.P.(C).27205/2022 4 2. As the petitioner was unable to complete the work within the extended period also, he sought further extension and the period was extended by two months by imposing a penalty of Rs.5,85,334/- and thereafter, by a further period of three months by imposing a penalty of Rs.5,96,751/-. As the petitioner had been repeatedly representing to the Government, regarding the illegal manner in which penalty was being imposed, the Government issued Ext.P9 Government Order dated 01.08.2017, finding the petitioner to be eligible for refund of Rs.16,16,863/- from the total penalty of Rs.48,94,149/- imposed for delay in completing the works with respect to the five plantations. By the order it was also made clear that no further claims with respect to the five works will be entertained. This writ petition is filed aggrieved by the said restrictive clause in Ext. P9. 3. Heard, learned counsel for the petitioner and the learned Special Government Pleader. 4. Adv. Narayani Harikrishnan appearing for the petitioner contended that the clause in Ext. P9, prohibiting the petitioner from agitating his legitimate claim, violates his W.P.(C).27205/2022 5 fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India. To buttress this contention, reliance was placed on the Apex Court decision in **D.K. Yadav v. J.M.A. Industries Ltd.** [(1993) 3 SCC 259]. It was also contended that, having found the delay in completing the contractual work to be for reasons beyond the petitioner's control, the respondents were bound to refund the entire penalty. 5. Adv. T.P. Sajan, learned Special Government Pleader contended that, after considering all relevant aspects, the Government had directed to deduct Rs.16,16,863/- from the amount of penalty imposed on te petitioner. The petitioner is actually not entitled for refund of even that amount, as the Government had sustained huge loss by reason the delay in felling and removing the trees. It was submitted that, as against the total estimate cost of Rs.1,93,30,416/-, including 10% contractor's profit, for the five works, the petitioner was awarded the tender for Rs.2,72,80,065/-. Out of this amount, Rs.2,36,05,747/- was paid to the petitioner as remuneration. As such, the petitioner had received Rs.42,75,331/- in excess W.P.(C).27205/2022 6 of the contract amount. Being so, the petitioner cannot contend that he had incurred financial loss or liability by the imposition of penalty. After considering the report of the Additional Principal Chief Conservator of Forest, the Government found that an amount of Rs.16,16,863/- had to be refunded to the petitioner. The eligible claim of the petitioner having been satisfied, the Government also observed that further claims in that regard will not be considered. The said observation cannot, under any circumstance, be termed as an arbitrary and unconstitutional act on the part of the Government. 6. It is an undisputed fact that the awarded works were not completed within the contract period. Clause 34 of the agreement empowers the contract awarding authority to impose penalty while extending the period of contract. It is in exercise of such power that penalty was imposed on the petitioner. The petitioner's grievance about the quantum of penalty was considered by the Government and the contract awarding authority was directed to refund a portion of the penalty. While issuing such direction, the Government W.P.(C).27205/2022 7 observed that no further claims with respect to the five works awarded to the petitioner will be entertained. As rightly contended by the Special Government Pleader the said observation cannot be termed as the incorporation of an arbitrary and unilateral condition. The said observation does not take away the petitioner's right to agitate his claim before other appropriate forums. The remedy of the petitioner was to approach the Civil Court, instead of rushing to this court challenging the observation in Ext.P9. For the aforementioned reasons the writ petition is dismissed. Sd/- **V.G.ARUN** **JUDGE** sb W.P.(C).27205/2022 8 ## **APPENDIX OF WP(C) 27205/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE AGREEMENT EXECUTED BY THE| ||PETITIONER FOR 1967 MWP, MANALAR DATED| ||12.3.2013.| |Exhibit P2|TRUE COPY OF THE MAHAZAR DATED 11.6.2013| |Exhibit P3|TRUE COPY OF THE REPRESENTATION SO GIVEN BY| ||THE PETITIONER TO THE 5TH RESPONDENT ON| ||31.8.2013| |Exhibit P4|TRUE COPY OF THE MAHAZAR DATED 13.9.2013| |Exhibit P5|TRUE COPY OF THE LETTER FROM PETITIONER TO| ||THE 5TH RESPONDENT DATED 4.10.2013| |Exhibit P6|TRUE COPY OF THE ORDER ISSUED BY THE 5TH| ||RESPONDENT DATED 23.10.2013.| |Exhibit P7|TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.| ||10911/2014 OF THIS HON'BLE COURT DATED| ||7.4.2016| |Exhibit P8|TRUE COPY OF THE REPLY GIVEN BY THE 5TH| ||RESPONDENT DATED 22.4.2016| |Exhibit P9|TRUE COPY OF THE G.O. (RT) NO. 287/2017/F&WLD| ||ISSUED BY THE 1ST RESPONDENT DATED 1.8.2017| |Exhibit P10|TRUE COPY OF THE LETTER FROM PRINCIPAL CHIEF| ||FOREST CONSERVATOR (FOREST, LAND AND| ||RESOURCES), THIRUVANANTHAPURAM TO 4TH| ||RESPONDENT DATED 26.7.2018| |Exhibit P11|TRUE COPY OF THE REPORT SUBMITTED BY THE 4TH| ||RESPONDENT TO THE 2ND RESPONDENT OBTAINED BY| ||THE PETITIONER THROUGH RTI ACT DATED 1.6.2020| |Exhibit P12|TRUE COPY OF THE COMMUNICATION OF THE 2ND| ||RESPONDENT TO THE CHIEF MINISTER'S GRIEVANCE| ||REDRESSAL CELL DATED 24.9.2020| |Exhibit P13|TRUE COPY OF THE REPRESENTATION MADE TO THE| 9 ## W.P.(C).27205/2022 CHIEF MINISTER OF KERALA BY THE PETITIONER DATED 21.1.2021 Exhibit P14 TRUE COPY OF THE THE COVERING LETTER ISSUED BY THE PETITIONER TO CHIEF MINISTER'S PUBLIC GRIEVANCES REDRESSAL CELL DATED 15.9.2021 Exhibit P15 TRUE COPY OF THE REPRESENTATION BY PETITIONER TO THE 1ST RESPONDENT DATED 17.9.2021 Exhibit P16 TRUE COPY OF THE REPLY OF THE 4TH RESPONDENT TO THE PETITIONER WITHOUT ENCLOSURES DATED 12.11.2021 Exhibit P17 TRUE COPY OF THE COMMUNICATION BY THE 2ND RESPONDENT TO THE PETITIONER DATED 3.1.2022