P. Gopalan v. Malampuzha Block Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 17TH DAY OF FEBRUARY 2012/28TH MAGHA 1933 ## **W.P.(C).No.33972 of 2009 (N)** ---------------------------------------------------- PETITIONER:- -------------------- P.GOPALAN,S/O.PAZHANAN, RESIDING AT MUKRONI, KANJIKODE, PALAKKAD-678 621. BY ADVS.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS:- ------------------------- 1. THE MALAMPUZHA BLOCK PANCHAYATH, - REPRESENTED BY ITS SECRETARY, - MARUTHARODE P.O., PALAKKAD. 2. THE DEPUTY TAHSILDAR (R.R.),PALAKKAD. R1 BY ADV.SRI.P.K.MOHANAN (PALAKKAD) R2 BY GOVERNMENT PLEADER SRI.GIKKU JACOB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## W.P.(C).NO.33972 OF 2009 ## **APPENDIX** ## PETITIONER'S EXHIBITS:- ------------------------------------- - EXT.P1 - TRUE COPY OF THE NOTICE ISSUED BY THE FIRST RESPONDENT DATED 4.10.2008. - EXT.P2 - TRUE COPY OF THE REPLY SENT BY THE PETITIONER DATED 20.10.2008. - EXT.P3 - TRUE COPY OF THE NOTICE ISSUED BY THE FIRST RESPONDENT DATED 13.1.2009. - EXT.P4 - TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE SECOND RESPONDENT DATED 7.8.2009. ## RESPONDENT'S EXHIBITS:- ---------------------------------------- - EXT.R1(a) - TRUE COPY OF THE LETTER DATED 9.3.2006 SENT BY THE BLOCK PANCHAYATH SECRETARY TO THE PETITIONER. - EXT.R1(b) - TRUE COPY OF THE LETTER DATED 26.04.2006 SENT BY THE BLOCK PANCHAYATH TO THE PETITIONER. - EXT.R1(c) - TRUE COPY OF THE REGISTERED LETTER DATED 30.05.2006 SENT BY THE BLOCK PANCHAYATH TO THE PETITIONER. - EXT.R1(d) - TRUE COPY OF THE LETTER DATED 06.06.2006 ADDRESSED TO THE PETITIONER BY THE BLOCK PANCHAYATH. - EXT.R1(e) - TRUE COPY OF ANOTHER LETTER DATED 14.06.2006 ADDRESSED TO THE PETITIONER BY THE BLOCK PANCHAYATH. - EXT.R1(f) - TRUE COPY OF THE LETTER DATED 23.06.2006 ADDRESSED TO THE PETITIONER BY THE BLOCK PANCHAYATH. - EXT.R1(g) - TRUE COPY OF THE PANCHAYATH RESOLUTION DATED 17.05.2008. - EXT.R1(h) - TRUE COPIES OF THE PAGES OF 67, 68 AND 70 OF THE MEASUREMENT BOOK 64/04-05. - true copy - K.Vinod Chandran,J. ---------------------------------------W.P.(C).No.33972 of 2009-N -----------------------------------------Dated this, the 17[th] day of February, 2012 ## JUDGMENT The petitioner was the Convener of a beneficiary committee, which entered into an agreement with the 1[st] respondent-Panchayat for construction of a check dam across the Malayanchalla thodu in Pudussery Panchayat of Palakkad district. Subsequent to the agreement executed in March, 2005, by a supplementary agreement the petitioner, as Convener, received an amount of `.60,000/- as advance for carrying out the construction work. The construction of the check dam not having been completed, the petitioner in the writ petition contends that he was issued with a demand notice for repayment of the amount received as advance together with interest from the date of disbursement till payment. The petitioner contends that he objected to the same by Exhibit P2 and the same was rejected by Exhibit P3, but, however, without any adjudication by any independent authority as to whether the petitioner has misapplied the funds or that he is entitled to be reimbursed the sum spent out of his pocket for the project. The petitioner claims to have spent an amount of `.76,707.50. The petitioner, hence, challenged the W.P.(C).No.33972 of 2009 - 2 - revenue recovery notice, Exhibit P4, issued for recovery of the amounts demanded as per Exhibit P1. The petitioner relies on a decision of the Supreme Court reported in _**State of Karnataka v. Shree Rameshwara Rice Mills**_ [(1987) 2 SCC 160] and a subsequent Full Bench decision of this Court reported in _**Abdul Rahiman v. Divisional Forest Officer**_ [1988 (2) KLT 290 (FB)]. The petitioner hence would urge that the 1[st] respondent and the petitioner being the parties to the contract, there cannot be any unfettered authority conferred on one of the parties to adjudicate on the breach as also quantify the damages. 2. The first respondent-Panchayat, on the basis of the counter affidavit filed, would contend that the petitioner was issued with a number of notices, Exhibits R1(a) to R1(f), none of which were replied or responded to by the petitioner. It was in such circumstance, it is submitted that the 1[st] respondent-Panchayat was constrained to issue the demand notice and subsequently initiate revenue recovery proceedings in view of the petitioner having not objected to or even responded to any of the notices issued by the 1[st] respondent-Panchayat. 3. The petitioner's challenge against Exhibit P1 is that the liability to breach and the quantification of loss could have W.P.(C).No.33972 of 2009 - 3 - been done only by an independent authority and not by the 1[st] respondent, who is a party to the contract. The petitioner having entered into an agreement to construct a check dam and having, by virtue of a supplementary agreement, received advance of `.60,000/-, admittedly did not complete the construction as provided in the agreement. The breach of the contract in such circumstances does not require any adjudication. In fact, as early as on 9.3.2006, the petitioner was issued with Exhibit R1(a), i.e., about an year after the advance was received. Exhibit R1(a) directed the petitioner to appear before the Secretary and appraise him of the progress of the construction entrusted to him. Again by Exhibit R1(b) dated 26.4.2006, the petitioner was directed to submit a report of the progress of the construction. Both these notices were not responded to. Again by Exhibit R1(c) dated 30.5.2006, the petitioner was cautioned that in the context of the impending monsoon, the construction of the check dam needed to be completed on a war footing, since the failure to do so would cause untold misery and loss to the agriculturists of the area. The petitioner was also specifically informed that any loss caused to the agriculturists would be his sole liability. In such circumstances, it was again directed that the petitioner contact W.P.(C).No.33972 of 2009 - 4 - the Technical Department of the Panchayat so as to complete the construction of the dam. The petitioner kept mum. In the context of the petitioner's refusal to respond to all the notices, the Panchayat convened a meeting at the premises of the office of the 1[st] respondent on 12.6.2006 to take steps for accelerating the construction of the check dam. The petitioner not having attended the same, again he was requested by Exhibit R1(e) to appear on 17.6.2006 and then by Exhibit R1(f) on 21.6.2006. The petitioner did not turn up for any of the meetings, nor did he make any submission regarding the progress of the work. The 1[st] respondent-Panchayat then left with no other option, passed Exhibit R1(g) resolution by which the advance amount was sought to be recovered with interest. 4. This resolution of the Panchayat culminated in Exhibit P1 demand being issued to the petitioner. Exhibit P1 infact refers to all the notices issued to him as reference (2). The petitioner then filed Exhibit P2 reply, making allegations of obstruction caused to the work and claiming that he has expended more money than he received as advance. It is pertinent that in Exhibit P2 he did not dispute the receipt of the earlier notices. The breach, even according to the petitioner, is W.P.(C).No.33972 of 2009 - 5 - admitted, since he does not have a case that any construction was carried as per the terms of the agreement or the terms of the supplementary agreement. 5. The next question is regarding the liability of the breach. The petitioner does not have a case that any of the other committee members had received any money from him; nor that any accounts were properly presented before the committee or the Panchayat. The obstruction claimed by the petitioner was never informed to the Panchayat, as is evident from his refusal to respond to any of the notices sent by the Panchayat. As noticed earlier, the first notice was issued within an year after the advance was received by the petitioner. No claim of obstruction was made at any time by the petitioner to the Panchayat before or after the notice. The Panchayat in fact considering the impending monsoon had also convened several meetings in the office of the Panchayat, which also were not attended to by the petitioner. The liability for beach, hence, necessarily would fall on the petitioner. 6. What remains is the quantification of the loss which necessarily would depend on the terms of the agreement. When breach has been established and the liability is on the person who committed the breach, the public authority is entitled to recover at W.P.(C).No.33972 of 2009 - 6 - least the advance amounts received by the person who committed the breach. The claim for interest of such amount also cannot be disputed. 7. I am of the opinion that the decisions placed before me does not in any manner advance the case of the petitioner. The decision of the Supreme Court referred to supra was with reference to a specific clause of the agreement entered into by the State and a supplier of paddy. The specific clause made the supplier liable to pay damages to the 2[nd] party for any breach of conditions set forth in the agreement as is assessed by the State. The Hon'ble Supreme Court held on a plain reading of the clause that though the right of the State to assess damages could not be disputed, it would arise only if the breach of conditions is admitted or if no issue is made of it. Though on the facts of the above case the action of the State was set aside, it was clearly stated by the Supreme Court that when there is no dispute or there is consensus between the contracting parties regarding the breach, the situation will be different. In the instant case, as is evident from the documents produced by the 1[st] respondent, the petitioner was issued with several notices which he never responded to and never “made an issue of”. The decision of the Full Bench of this W.P.(C).No.33972 of 2009 - 7 - Court, in fact, would be against the petitioner. The Full Bench after referring to the above Supreme Court decision, in paragraph 16 stated so: _“Admission of the breach of contract by the defaulting party and assimilation of a provision for liquidated damages in the event of breach, dispense with a determination of any dispute by any outside agency and the Government, as a party claiming compensation can proceed to recover the amount due under the Revenue Recovery Act without recourse to a court of law”._ 8. The facts of this case would amply demonstrate that the petitioner never made an attempt to object to the notices issued by the Panchayat; nor raised any issue as to why the construction was not carried on as agreed upon. The decisions referred to by the petitioner does not in any way help the cause of the petitioner, since the contention of an independent enquiry and so on and so forth has been made after the liability was fixed and the refund was demanded, that too with notice to the petitioner. In such circumstances, the writ petition is totally devoid of merit and the same is only to be dismissed. 9. However, the petitioner's counsel has a contention that the Panchayat has in its counter affidavit admitted that the work done by the petitioner can be correctly estimated at W.P.(C).No.33972 of 2009 - 8 - `.20,418/- as entered in the measurement book. Hence, it is contended that the petitioner is entitled to set off of the said amount. That, however, would depend upon the agreement and it is not for this Court to pronounce on it, especially in the context of no agreement being produced before Court. Considering, however, the plea made on behalf of the petitioner, this Court feels that if the petitioner deposits the entire dues as per Exhibit P4 recovery notice together with future interest within a period of one month before the Panchayat, the Panchayat shall look into the terms of the agreement and consider the claim of the petitioner in accordance with law and in accordance with the terms of the agreement. In the event of the petitioner not making any remittance within 17.3.2012, the revenue recovery proceedings shall be continued. The writ petition is dismissed, however, with the above observation. Sd/- K.Vinod Chandran, Judge. vku/- - true copy -