Kadakkavoor Grama Panchayat represented by its Secretary v. Ombudsman for Local Self-Government Institutions, Kerala and Vivijayakumar Pulari

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 WP(C) NO. 8142 OF 2022** ## **PETITIONER:** **KADAKKAVOOR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KADAKKAVOOR P.O., THIRUVANANTHAPURAM DISTRICT, KERALA - 695 306.** ## **BY ADV THOMAS ABRAHAM** ## **RESPONDENTS:** - **1 OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS KERALA. SAPHALYAM COMPLEX, TRIDA BUILDING, UNIVERSITY P.O., PALAYAM, THIRUVANANTHAPURAM, PIN - 695 034.** - **2 VIVIJAYAKUMAR PULARI, VVMRA-53, VAYALLIKULAM, ATTINGAL P.O., THIRUVANANTHAPURAM, PIN - 695 101.** **BY ADVS.** **R1 BY P.K.RESHMA (KALARICKAL), SC R2 BY ADV.M.DINESH** ## **OTHER PRESENT:** ## **GP - RIYAL DEVASSY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON** **06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.8142 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.8142 of 2022 .................................................................** Dated this the 6[th] day of March, 2023 ## **JUDGMENT** The above writ petition is filed by the Kadakkavoor Grama Panchayat aggrieved by the issuance of Ext.P6 order by the 1[st] respondent Ombudsman wherein the petitioner was directed to pay an amount of Rs.59,500/- with 9% interest from 01.01.2020 to the 2[nd] respondent within a period of one month towards the work undertaken by him. The specific contention of the petitioner is that the 1[st] respondent Ombudsman has no power or authority to adjudicate a matter of this nature. Petitioner relies on the judgment in **John A., Ansons Group, Architects v. Changanacherry Municipality and another (2011 KHC 800)** and also the decision in **Kulukkalloor Grama Panchayat v. Ombudsman for Local Self-Govt. Institution** **and others (2013 (2) KHC 133)** to contend for the position that when the Panchayat is disputing the liability to pay an amount, the Ombudsman has no jurisdiction to entertain such a complaint and the remedy of the aggrieved party lies before the civil court. In view of the judgments of this Court cited supra, I am of the view that the W.P.(C) No.8142 of 2022 3 Ombudsman has exceeded its jurisdiction in directing payment of the amount with 9% interest especially when the Panchayat has raised serious objection as is evident from Ext.P5. 2. But the fact remains that amounts are claimed to be due to the 2[nd] respondent from the petitioner Panchayat. Going by the averments in the writ petition it is seen that the petitioner Panchayat during the financial year 2017-2018 has prepared a project for LED lights including parts maintenance as project No.269/18 for an amount of Rs.60,000/- and has obtained DPC approval but was not able to do the work during the respective financial year. Pursuant to the same, the project was included in the financial year 2018-2019 as spill over project as project No.169/19. It is also discernible from the averments in the writ petition that the petitioner Panchayat has invited quotations for the project and three quotations were received including the one submitted by the 2[nd] respondent and the quotation submitted by him was approved by the petitioner on 28.01.2019 as it is the lowest amount quoted, as is evident from Ext.P1 decision of the petitioner Panchayat dated 28.01.2019. The Secretary of the petitioner Panchayat has informed the 2[nd] respondent that his quotation was accepted and approved by the Panchayat as per Ext.P2 letter and the 2[nd] respondent was directed to approach the petitioner Panchayat to enter into a contract with the petitioner and finished the work awarded. W.P.(C) No.8142 of 2022 4 It is also not in dispute that the 2[nd] respondent has submitted a stamp paper worth Rs.200/- for entering into the contract, but the contention of the petitioner Panchayat is that no steps were taken by the 2[nd] respondent to execute the same. On 29.03.2019, the 2[nd] respondent submitted a request to the petitioner that the repairing and fitting work of 79 LED lights has been completed and requested to approve the amount for the same. The only case of the petitioner herein is that the 2[nd] respondent has started the work without entering into the contract. Ext.P3 is the request made by the 2[nd] respondent demanding the amount for the work already done by him. It can also be seen from the averments in the writ petition that the ward member of the petitioner Panchayat has declared the completion of repairing work and fitting of 32 LED lights. Another contention raised in the writ petition is that the 2[nd] respondent has not submitted the bill for the purchase of LED lights and materials, approval of procurement committee and inspection report regarding the quality of lights and it is due to the nonsubmission of the said documents as per the procurement rules, the petitioner has not effected payment to the 2[nd] respondent. It is thereafter the 2[nd] respondent approached the 1[st] respondent Ombudsman and Ext.P6 impugned order was issued directing payment of the amount due, with interest. 3. The 2[nd] respondent has filed a detailed counter affidavit W.P.(C) No.8142 of 2022 5 wherein it is specifically stated that he being the lowest tenderer was awarded the work as sanctioned by the Panchayat committee on 28.01.2019 vide No.II(1) and thereafter the Secretary issued sanctioned letter to him on 08.02.2019 as per letter No.A3-7214/19. The 2[nd] respondent has also submitted stamp paper and other documents before the petitioner for entering into agreement and these aspects are not denied by the petitioner in paragraph 2 of the writ petition. It is submitted that it is the duty of the petitioner to enter into the agreement as per Ext.R2(b). The 2[nd] respondent was always ready and willing to execute the agreement, but the petitioner did not take any steps to execute the same and on the other hand permitted the petitioner to execute the work as per the tender. The 2[nd] respondent further submits that he has executed the work as per Ext.R2(b) which is approved by the member of the Panchayat committee who was elected in ward No.6 and directed him to repair three street lights, each in the rest wards of the Panchayat. The 2[nd] respondent further submitted that he has executed and repaired 32 street lights in ward No.6 and repaired 47 street lights in the rest of the wards in the Panchayat. Ultimately the 2[nd] respondent executed and repaired 79 street lights of Kadakkavoor Panchayat as is stated in Ext.R2(c). On a perusal of Ext.R2(c), it is seen that the member of the petitioner Grama Panchayat has endorsed that the 2[nd] respondent has W.P.(C) No.8142 of 2022 6 undertaken the repair works and that the lights are all working. It is thereafter the 2[nd] respondent submitted the bill towards execution of Ext.R2(b) work before the petitioner and on 23.12.2019 the Panchayat committee has considered the matter of payment of amount to the 2[nd] respondent in the agenda and none of the members objected the execution of the maintenance work. The 2[nd] respondent has a further contention that the reason stated in the writ petition for not paying the amount that the 2[nd] respondent has not produced any document as per the procurement rules like the purchase bill and the sanctioned the procure committee report, etc, is absolutely without any basis as there was no such stipulation made by the Panchayat at the time of entrusting the work. 4. Petitioner Panchayat has filed a detailed reply affidavit mainly contending that as per Ext.P2 letter the 2[nd] respondent was intimated to appear before the Panchayat and execute the agreement with the Panchayat in order to commence the work and it is the duty of the 2[nd] respondent to enter into contract by preparing the terms of the contract with the Panchayat before starting the work. The 2[nd] respondent has not produced any documentary evidence showing that the Panchayat has directed him to commence the work without an agreement and the 2[nd] respondent cannot evade from executing a valid agreement by putting the burden on the shoulders of the W.P.(C) No.8142 of 2022 7 Panchayat. On the basis of the same it is contended that without a valid agreement the amount demanded now cannot be released to the petitioner. 5. After hearing both sides, I am in perfect agreement with the contentions raised by the petitioner that in view of the judgments in **John A., Ansons Group, Architects** 's case and **Kulukkalloor Grama Panchayat** 's case cited supra that the Ombudsman has no authority to adjudicate a claim for payment of money especially when the said payment is objected to by the Panchayat. But the fact remains that even going by the pleadings in the writ petition, the Grama Panchayat has taken a decision for maintenance of LED lights which was included as spill over project No.169/19 for the financial year 2018-19. It is also clear from the averment in the writ petition that the 2[nd] respondent had participated in the tender and his quotation was the lowest and the same was approved by the Panchayat on 28.01.2019 as is evident from Ext.P1 decision of the Panchayat committee. As per Ext.P2 the 2[nd] respondent was directed to appear before the petitioner Panchayat to enter into a contract with the petitioner and finish the work awarded. It is also admitted in the writ petition that the 2[nd] respondent has approached the Panchayat and submitted a stamp paper worth Rs.200/- for entering into the contract but no steps were initiated by him to execute the same. That is a W.P.(C) No.8142 of 2022 8 reason now projected by the petitioner Panchayat for denying the amount allegedly due to the 2[nd] respondent. It is also not in dispute that as per Ext.P3 the 2[nd] respondent has made a request before the Panchayat for payment of the amount due. A perusal of Ext.R2(c) communication issued by the member of the petitioner Panchayat that 79 street lights have been repaired by the 2[nd] respondent and that he has fully executed Ext.R2(b) work which is included as spill over project No.160/19. A perusal of Ext.R2(c) would further show that the averment of the petitioner that the said work has been undertaken and completed by him has been endorsed by none other than the member of the petitioner Panchayat. The 2[nd] respondent would contend that it is the duty of the Secretary of the petitioner Panchayat to execute a document as mandated as per law. It is not in dispute that the 2[nd] respondent has approached the Panchayat and provided a stamp paper worth Rs.200/- for the purpose of execution of the agreement. The Kerala Panchayat Raj (Contract) Rules, 1996 which mandates that the Panchayat shall follow the conditions enumerated in Rule 3 for execution of public works and other works which have been entrusted with and are carried out by the Panchayat as per the provisions of the Kerala Panchayat Raj Act. As per Rule 3(2)(i) it is for the Panchayat committee to take a decision as to whether the work should be executed on contract or not. As per Clause (ii) of Rule 3(2) W.P.(C) No.8142 of 2022 9 the tender is to be invited by the Secretary under the written orders of the President. As per Clause (iii) of Rule 3(2) it is the Panchayat committee to take a decision in respect of entrusting the work in the name of a person or an institution and Clause (iv) mandates that the President may in accordance with the decision of the committee authorise the Secretary in writing for signing a contract on behalf of the Panchayat. A reading of Clause (iv) of Rule 3(2) makes it explicitly clear that it is the duty of the Secretary of the Panchayat to execute a contract in writing on behalf of the Panchayat. Therefore the contention now taken in the writ petition that it is the duty of the 2[nd] respondent to execute an agreement with the Panchayat cannot be accepted. It is the Secretary who is trained for this job and who is aware of the provisions of the Kerala Panchayat Raj Act and Rules and who is duty bound to execute the agreement with the 2[nd] respondent and the allegation of non-execution of the agreement cannot be cast on the 2[nd] respondent, who is only a layman. In view of the above, I am of the opinion that the contention taken by the Panchayat that steps for execution of the agreement are to be taken by the 2[nd] respondent cannot be accepted and only for the reason that the agreement is not available, whatever amount due to the 2[nd] respondent cannot be denied. In view of the above facts and circumstances, I am W.P.(C) No.8142 of 2022 10 inclined to interfere with Ext.P6 order passed by the 1[st] respondent and quash the same. Even when I interfere with Ext.P6 order, there will be a direction to the petitioner Panchayat to reconsider the matter in the light of the available records especially Exts.P1 and P2 and also taking note of Exts.R2(a) and R2(c) documents produced along with the counter affidavit filed by the 2[nd] respondent and after conducting necessary enquiry including local enquiry and enquiring with the concerned ward members at the relevant point of time and take a decision in the matter of payment of amount due. The 2[nd] respondent is only a small scale contractor and he claims to have undertaken the work. It is for the petitioner Panchayat to reconsider the matter in the manner as directed above and take a final decision in the matter within a period of three months from the date of receipt of a copy of the judgment after affording an opportunity of being heard to the petitioner. With the abovesaid direction, the writ petition is disposed of. Sd/- **VIJU ABRAHAM** **JUDGE** cks W.P.(C) No.8142 of 2022 11 ## **APPENDIX OF WP(C) 8142/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE DECISION OF THE PETITIONER PANCHAYAT DATED 28/01/2019. Exhibit P2 THE TRUE COPY OF THE LETTER NO.A37214/19 OF THE PETITIONER DATED 08/02/2019. Exhibit P3 THE TRUE COPY OF THE LETTER NO.A3 2076/19 SUBMITTED BY THE 2ND RESPONDENT DATED 29/03/2019. Exhibit P4 THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. Exhibit P5 THE TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 06/12/2021. Exhibit P6 THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 31/01/2022. RESPONDENT EXHIBITS Exhibit R2A TRUE COPY OF THE QUOTATION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE PETITIONER ON 26.12.2018 Exhibit R2B TRUE COPY OF THE SPILLED PROJECT NO.160/2019 PUBLISHED BY THE PETITIONER, Exhibit R2C TRUE COPY OF THE LIST OF STREETLIGHTS OF KADAKKAVOOR PANCHAYATH.