C.N. RAVEENDRAN PILLAI CHERUKARAYYATHU PUTHEN VEEDU v. THE EXECUTIVE ENGINEER, K.I.P (M C S) DIVISION NO.IV, SASTHAMCOTTA; THE DISTRICT COLLECTOR, KUNNATHUR TALUK, KOLLAM; THE TAHASILDAR, KUNNATHUR TALUK, KOLLAM; THE VILLAGE OFFICER, MYNAGAPPALLY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** **AS.No.498 OF 2002** **AGAINST THE JUDGMENT IN OS 246/1994 OF ADDITIONAL SUB COURT,KOLLAM** ## **APPELLANT/PLAINTIFF:** **C.N. RAVEENDRAN PILLAI CHERUKARAYYATHU PUTHEN VEEDU, VENGAI P.O., SASTHAMCOTTA, KOLLAM.** **BY ADV. SRI.LEO GEORGE** ## **RESPONDENTS/DEFENDANTS:** - **1 THE EXECUTIVE ENGINEER, K.I.P (M C S) DIVISION NO.IV, SASTHAMCOTTA, NOW DIVISION NO.II, ADOOR.** - **2 THE DISTRICT COLLECTOR KUNNATHUR TALUK, KOLLAM.** - **3 THE THAHASILDAR KUNNATHUR TALUK, KOLLAM.** - **4 THE VILLAGE OFFICER, MYNAGAPPALLY** **BY GOVERNMENT PLEADER SMT. N.S. REHANA** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** AS.No.498 OF 2002 2 ## **JUDGMENT** The unsuccessful plaintiff before the Additional Sub Court, Kollam has approached this Court with this appeal challenging the judgment and decree dated 16.8.2001 passed against him in O.S.No. 246/1994, a suit for permanent prohibitory injunction to restrain the defendants from initiating revenue recovery proceedings. 2. The parties are referred to as the plaintiff and the defendants as per their ranking before the court below. 3. The factual matrix as revealed from the records, in brief are as follows: The plaintiff is a PWD contractor. He was entrusted with the work of laying pipe lines and other connected works at Thottum Muri Distributory in the year 1988. The work was supposed to be completed by November, 1988. As per the agreement, the defendants (for short 'PWD') had to supply materials to the plaintiff/contractor. The long delay in supply of materials resulted in delay in carrying out the work. At the very same time, the AS.No.498 OF 2002 3 plaintiff was entrusted with two other works also and all the works were carried out by him simultaneously. Though the PWD had to supply materials to carry out the work by the plaintiff, cement which was an essential raw material required was not supplied to him and he had to procure the same from open market. While he was continuing with the work, on 16.9.1993 he was served with a notice directing to surrender the departmental materials to the Assistant Engineer, Sasthamcotta as well to remit a sum of Rs.6,429/-. The cost of the materials was assessed as Rs.1,30,235/- by the Department and he was asked to deposit the same within a period of 14 days. He was also permitted to continue with the work and thereafter on 7.12.1993 he received a letter from the Superintending Engineer, Adoor circle stating that his work was terminated by 24.3.1992. The work done by the plaintiff was not measured properly. Still revenue recovery proceedings were initiated against him and hence the suit. 4. Before the court below, the defendants/PWD contended that departmental materials required for the work undertaken by the plaintiff were supplied to him and time for completion of the work was extended upto 31.3.1989. A part bill was also AS.No.498 OF 2002 4 sanctioned but he abandoned the work. On 24.9.1991 he was asked to resume the work but he did not comply with the request of the department and he also failed to return the materials left unused. The allegation that the work was not measured properly is not correct. He was requested to pay a sum of Rs.1,36,664/and demand notice was issued. But there was no response from his side and hence, the suit filed by him for injunction is not maintainable and he is not entitled to get a decree for injunction as prayed for, was the stand of the PWD. 5. Before the court below, the plaintiff was examined as PW1 and Exts.A1 to A7 were marked. On the side of the defendants DW1 was examined and Exts.B1 to B4 were marked. The court below after evaluation and appreciation of the evidence dismissed the suit by the impugned judgment. 6. The question to be decided in this case is whether the plaintiff is entitled to get a decree for permanent prohibitory injunction as prayed for. 7. Heard Sri.Leo George, the learned counsel for the appellant/plaintiff and Smt.N.S.Rehna the learned Government Pleader for the defendants/PWD. AS.No.498 OF 2002 5 8. Admittedly, the plaintiff is a PWD contractor. He was entrusted with the work of laying pipes to Thottum Muri Distributory in the year 1988. As per the agreement dated 14.7.1988 he started the work on 14.10.1988. As per the agreement, the department had to supply the materials required for the work. According to the plaintiff, the materials required for the work were not promptly supplied by the department. 9. While the work was going on, the contractor was entrusted with two other works also and he was doing the works simultaneously. The said fact is not in dispute. According to the plaintiff, cement which was an essential raw material required to carry out the work was not supplied to him and hence, he could not proceed with the work or to complete the same as per the terms of the agreement . 10. The definite case of the plaintiff is that while the work was being carried on by him, he received instructions from the department to divert certain materials to the site at West Kallada and thus the materials were transmitted by him. He relies on Exts.A6 and A7 to substantiate his case that the materials supplied to him to carry out the work of laying of pipe lines at AS.No.498 OF 2002 6 Thottum Muri Distributory were diverted to the work site at West Kallada. Ext.A6 is the receipt issued by the department dated 15.12.1994. The work entrusted to the plaintiff at Thottum Muri Distributory was as per agreement No **.** 52/EEIV/88-89 KIP (MCS works). It is also not in dispute that as per an agreement No.97/EEIII/88-89 KIP (MCS) he was entrusted with the work of laying pipe lines and allied works at West Kallada Distributory and also with the very same work of laying pipe lines at Nediyapadam South, as per another agreement. Ext.A6 would show that the plaintiff was entrusted with certain materials on 15.12.1994 . Ext.A7 is a transfer entry order issued by the Assistant Engineer, K.I.P.(M C S) Section, dated 15.12.1994. It would reveal that materials were transferred from Thottum Muri Distributory to West Kallada Distributory by the Department. In the credit column the name of the work of the Thottum Muri Distributory is recorded and in the debit column the work of West Kallada Distributory is mentioned. It is evident from this document that materials from Thottum Muri Distributory had been transferred to West Kallada Distributory. The entry in the debit column is with respect to the transportation of the AS.No.498 OF 2002 7 materials from Thottum Muri Distributory to West Kallada Distributory. Relying on Exts.A6 and A7 the learned counsel for the plaintiff would point out that the materials which were supplied to him to carry out the work of the Thottum Muri Distributory were diverted to West Kallada Distributory as per the direction of the officials of the PWD. Therefore, according to the plaintiff there was no possibility of having materials supplied by the department to remain, as unused at the work site at Thottumuri Distributory. No independent evidence was adduced by the department to discard the said fact . 11. Of-course the learned Government Pleader would point out that Exts.A6 and A7 cannot be relied on to substantiate the case of the plaintiff that materials were transferred from Thottum Muri Distributory to West Kallada. It was argued that the dates of Exts.A6 and A7 were corrected as 15.12.1994 though it was actually issued on 15.12.1993. But it is pertinent to note that when DW1, the present Executive Engineer of the Department was examined, no such apprehension was expressed by him. In fact, he had admitted that materials were transferred from Thottum Muri Distributory to West Kallada AS.No.498 OF 2002 8 Distributory as per the direction of the Department. 12. He has also admitted that he has not verified whether the materials were received by West Kallada Distributory. Exts.A6 and A7 were seen signed by the Engineer concerned and the Contractor. The original documents pertaining to the materials supplied to the plaintiff to carry out the work in Thottum Muri Distributory as well in West Kallada Distributory were available in the department and there was no difficulty in producing all those documents before the court. But none of these documents have been produced by the department to substantiate its' case that the plaintiff had manipulated the documents and produced it before the court in order to prove his case that the materials were transferred as directed by the department and therefore he is not bound to return any materials to the department. However, the Department failed to prove the details of the materials supplied and also the quantum materials utilized for the work effected by the plaintiff though accurate data was available before the Department. The department was supposed to prove all those facts before the court before claiming the said amount by way of revenue recovery proceedings. But no AS.No.498 OF 2002 9 such attempt was made by the defendants and hence, the finding rendered by the court below that Exts.A6 and A7 are not reliable documents because of the correction made therein is not sustainable in the eye of law and the said finding is absolutely incorrect in the absence of reliable evidence. 13. The learned counsel for the plaintiff has invited my attention to a decision of this Court **K.A.Sohanadas vs. State of Kerala and another [AIR 1985 NOC 99 (KER)]** to substantiate his case that when the amount due to the department was not found determined by adjudicatory process , the contractor is entitled to get an order of stay of the revenue recovery proceedings. 14. The department is in possession of all the relevant documents to substantiate its' case. But none of the documents were produced though the measurement book was produced. That alone is not sufficient to prove the issue involved in this case. Even if any material was not returned by the plaintiff, the department had to prove the same by adducing reliable and cogent evidence. There should be categorical pleadings and evidence to establish that the plaintiff was bound to pay the AS.No.498 OF 2002 10 amount claimed. A court cannot assume or infer that the plaintiff was liable to pay the amount claimed. Solid evidence is required for the same. Therefore, the claim for a sum of Rs.1,36,664/-(Rs.1,30,235/-+Rs.6,429/-) is not substantiated by the department and hence the plaintiff cannot be held liable for the said amount mainly for the reason that it was not ascertained and quantified properly. 15. Now the question to be looked into is whether the termination of the contract by the Superintending Engineer on 16.9.1993 was valid. As per Clause 60 of the Madras Detailed Standard Specification (MDSS for short) the Executive Engineer is the competent authority to terminate the contract legally and hence, the termination of the contract by the Superintending Engineer though superior in office, was without authority. For easy reference the relevant portion of Clause 60 is extracted here under. **“** 60. Delays in commencement or progress or neglect of work and forfeiture of earnest money, security deposit and withheld amounts:- (a) Time shall be considered as of the essence of the contract. If, at any time, the Executive Engineer shall be of the opinion that the contractor is delaying commencement of the AS.No.498 OF 2002 11 work or violating any of the provisions of the contract or is neglecting or delaying the progress of the work as defined by the tabular statement “Rate of Progress” in the “Articles of Agreement,” he shall so advise the contractor in writing and at the same time demand compliance. If the contractor neglects to comply with such demand within seven days after receipt of such notice, it shall then, or at any time thereafter, be lawful for the Executive Engineer to determine the contract, which determination shall carry with it the forfeiture of the security deposit and the total of the amount withheld under clause 68 below, together with the value of such work as may have been executed and not paid for, or such proportion of such total sums, as shall be assessed by the Executive Engineer. (b) ************” 16. Therefore, the claim raised by the department for a sum of Rs.1,36,664/- is not legally correct and hence, the revenue recovery proceedings initiated on the basis of the said claim by the department is in a way vitiated by fraud, which could be challenged in a civil court. More over, the court below has not found that the suit filed by the plaintiff is not maintainable and the said fact has not been challenged by way of an appeal or by cross appeal by the defendants. For the aforesaid reasons, I find that the plaintiff is entitled to get a decree as prayed for. Therefore, the judgment under AS.No.498 OF 2002 12 challenge is liable to be set aside and the suit is to be decreed. The defendants are hereby restrained by a decree of permanent prohibitory injunction from initiating revenue recovery proceedings as prayed for. Accordingly, the appeal is allowed and the impugned judgment and decree are set aside. However, the parties shall bear their respective costs. **Sd/-** **SHIRCY V. JUDGE** smm