Sasikumar T.R. v Travancore Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** **WP(C) NO. 3303 OF 2021** ## **PETITIONER:** **SASIKUMAR T.R., AGED 62 YEARS S/O. RAGHAVAN, THATHWAMASY, PUTHIYAVILA MURI, ARATTUPUZHA VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT-690535.** **BY ADV.SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS:** - **1 THE TRAVANCORE DEVASWOM BOARD DEVASWOM BOARD HEAD QUARTERS, NANDANCODE P.O. , THIRUVANANTHAPURAM-695003, REPRESENTED BY ITS SECRETARY.** - **2 THE PRESIDENT, THE TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD QUARTERS, NANDANCODE P.O. , THIRUVANANTHAPURAM-695003.** - **3 THE CHIEF ENGINEER, THE TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD QUARTERS, NANDANCODE P.O. , THIRUVANANTHAPURAM-695003.** - **4 THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, THE TRAVANCORE DEVASWOM BOARD, MAVELIKKARA-690101.** -2- ## W.P.(C). No. 3303 of 2021 - **5 THE ASSISTANT ENGINEER, THE TRAVANCORE DEVASWOM BOARD, CHENGANNUR689121.** **BY ADV SRI.G.BIJU,SC, TRAVANCORE DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 3303 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is a Contractor, who had undertaken the following works awarded by the Travancore Devaswom Board; - (1) Construction of Nadapanthal of Thrikkattur Mahavishnu Temple in Aranmula Group. - (2) Annual maintenance of school building - Devaswom Board High School, Parumala in Thriuvalla Group, for the academic year 2019-20. - (3) Annual maintenance of school building - Devaswom Board Higher Secondary School, Parumala in Thiruvalla Group for the year academic year 20192020. - (4) Annual maintenance of school building - Devaswom Board High School, Parumala in Thriuvalla Group for the year academic year 2019-2020. - (5) Annual maintenance of Devaswom Board Higher Secondary School, Thiruvalla in Thiruvalla Group for the academic year 2019-2020. The petitioner has filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to sanction the final bill which was recommended by the Assistant Engineer, Travancore Devaswom Board, Chengannur as per Ext.P1 communication dated 27.08.2019 addressed to the 4[th] respondent Executive Engineer, Travancore Devaswom Board, Mavelikkara, with -4- ## W.P.(C). No. 3303 of 2021 respect to the work relating to the construction of Nadapanthal of Thrikkattur Mahavishnu Temple in Aranmula Group. The petitioner has also sought for a writ of mandamus commanding the respondents to sanction and disburse the balance amount due to him in respect of the work relating to renovation of Devaswom Board schools, considering Ext.P3 representation submitted before the 2[nd] respondent, the President of the Travancore Devaswom Board and Ext.P4 lawyer notice dated 16.11.2020; and a declaration that the failure on the part of the respondents to disburse the amount due to the petitioner for the work executed by him is illegal. 2. On 18.03.2021, the respondents have filed a counter affidavit dated 18.03.2021 opposing the reliefs sought for in this writ petition. Paragraph 6 of the counter affidavit reads thus; “6. The Assistant Engineer, Thiruvalla has reported that, since the contractor had requested to make payment for the works already done by him and it was difficult to do the balance works as the schools were functioning he took the measurement of the works done and was accepted by the petitioner. The measurements recorded by him were verified by the Chief Engineer. The bills were passed and payments -5- ## W.P.(C). No. 3303 of 2021 were made from Executive Engineers office Mavelikkara. Having received the bill amount by accepting the measurements the contractor raised unnecessary allegations which are baseless and meaningless. Earlier another petition was put in by the petitioner raising allegations against the Assistant Engineer. Based on that, the Chief Engineer inspected the site and submitted a detailed report to the Board. A copy of the report dated 04.11.2020 of the Chief Engineer is produced herewith and marked as ExhibitR1(c). The petitioner had accepted the measurements while receiving the bill from Assistant Engineers Office, Thiruvalla. Based on the same the bill was verified and passed. Later on, during enquiry it was observed that a subsequent addition, "with protest" was found added " ” to the earlier recording measurements accepted . The ink used to scribe the same is different which itself indicates that the same writing is a fabricated one. Moreover, if the measurements were accepted with protest, payment wouldn't have been made until the issue is settled. Based on the facts stated above, the petitioner has no right to claim any amount on account of the above said works. (underline supplied) 3. In paragraph 7 of the counter affidavit, the respondents have furnished the details of the work done by the petitioner and the payment made to him. Paragraph 7 of the counter affidavit reads thus; “7. The details of the work done and payment made to -6- W.P.(C). No. 3303 of 2021 the petitioner are as follows: (1) Name of work : Thrikkaattoor Mahavishnu temple in Aranmula group Construction of Nadapandal. Administrative sanction to the above work was accorded at an amount of Rs.17,45,000/- vide Board's ROC No: 9632/17/M dated 01/07/2017 Contract sanction awarded in favour of the petitioner at 15.40% below the sanctioned estimate rate vide Board ROC No: 9632/17/M dated 12/03/2018. The petitioner has commenced the work on 18/03/2019. The Assistant Engineer prepared and submitted the CC1 and part bill amounting to Rs. 16,29,320/-recorded in the M.Book No: 139/MD/16-17 on 24/05/2019. HR (Advance Payment) of Rs.9,10,000/ - was made to the petitioner on 09/09/2019 vide cheque No: 369715. The CC1 and part bill checked and forwarded to Chief Engineer's office on 30/11/19 vide letter no: 1792 for an amount of Rs. 13,87,992.96/- after deducting 15.40% as per agreement. The CC1 and part bill duly admitted and passed for Rs. 10,65,902/- from Chief Engineer's office and the balance payment of Rs.1,55,902/- made to the petitioner on 23/01/2020 vide cheque no: 841288. The Assistant Engineer has reported that the work was completed on 14/08/2019 and he has prepared and submitted the CC II and final bill recorded in the M.Book 139/MD/1819 at up to date amount of Rs. 13,98,879.90/and the since last amount of Rs.2,14,563.92/-. The final bill has not reached the office of Chief Engineer. Once the final bill reaches the office of Chief Engineer, it will be considered and appropriate orders will be passed and payment will be made on its basis without further delay. (2) Name of work : DBHS Parumala, Thiruvalla - group Annual maintenance to the school building during the year 2019-2020. -7- ## W.P.(C). No. 3303 of 2021 Administrative sanction to the above work was accorded at an amount of Rs. 1,55,000/- vide Chief Engineer's order No: 572 dated 25/05/19. Contract sanction was awarded in favour of the petitioner at 11.5% below of the sanctioned estimate rates. Petitioner has commenced the work on 13/05/2019 and completed part of the work on 29/05/2019. The Assistant Engineer has prepared and submitted PC bill amounting to Rs.1,04,559/for the works done by the petitioner, recorded in the M.Book No:363/MD/16-17 on 26/08/2019. The PC bill is passed for Rs.1,03,674/- and payment made to the contractor on 09/09/2019 vide cheque No: 377514. (3) Name of work: DBHSS Parumala, - Thiruvalla group Annual maintenance to the - school building during the year 2019 20. Administrative sanction to the above work was accorded at an amount of Rs. 1,70,000/- vide Chief Engineers order no: 624 dated 29/05/2019. Contract sanction was accorded in favour of the petitioner at 11.00% below the sanctioned estimate rate. The petitioner commenced the work on 10/05/2019 and has partly completed the work on 30/05/2019. The Assistant Engineer has prepared and submitted the PC bill amounting to Rs. 1,13,918/- for the works done by the petitioner, recorded in the M.Book No: 32/MD/18-19 on 26/08/2019. The PC Bill passed for Rs.1,13,026/- and payment made to the petitioner on 09/09/2019 vide cheque No: 377514 . (4) Name of work : DBHS Thiruvalla in - Thiruvalla group Annual maintenance to the - school building during the year 2019 2020 Administrative sanction to the above work was accorded at an amount of Rs.1,93,000/- vide Chief Engineer's order No: 602 dated 28/05/2019. Contract sanction was awarded in favour of the petitioner at 13.50% below the sanctioned estimate rate. The petitioner has commenced the work on -8- ## W.P.(C). No. 3303 of 2021 17/05/2019 and has completed part of the work on 30/05/2019. The Assistant Engineer has prepared and submitted the PC bill amounting to Rs. 1,02,006.99/- for the work done by the petitioner, recorded in the M.Book No: 289/MD/16 on 26/08/2019. The PC bill passed for Rs.1,02,580/- and payment made to the petitioner on 09/09/2019 vide cheque No: 377514. (5) Name of work : DBHSS Thiruvalla in Thiruvalla group Annual maintenance to the - school building during the year 2019 2020 Administrative sanction to the above work was accorded at an amount of Rs.2,45,000/- vide Chief Engineer's order No: 573 dated 25/05/2019. Contract sanction was awarded in favour of the petitioner at 13% below of the sanctioned estimate rate. The petitioner commenced the work on 10/05/2019 and has completed part of the work on 31/05/2019. The Assistant Engineer has prepared and submitted the PC bill amounting to Rs.96,014.04/- for the work done, recorded in the M.Book No: 289/MD/16 on 26/08/2019. The PC bill passed for Rs.92,980/- and payment made to the petitioner on 09/09/2019 vide cheque No: 377514. Respondents herein paid the amount for the work done by the petitioner. If he has any dispute regarding the amount, he has to approach the civil court and such dispute cannot be agitated in a writ petition. In the light of the facts and circumstances stated above, petitioner is not entitled to get any of the reliefs prayed for and the writ petition is liable to be dismissed with cost to these respondents.” 4. On 12.08.2021, the petitioner has filed a reply affidavit dated 09.08.2021 producing therewith Exts.P5 to P12. The document marked as Ext.P12 is the relevant extract -9- ## W.P.(C). No. 3303 of 2021 of the measurement book obtained by the petitioner under the provisions of the Right to Information Act, 2005, in order to contend that the stand taken in the counter affidavit filed by the respondents that the petitioner had accepted the measurement of the work recorded by the Assistant Engineer and the bill amounts were received on being satisfied with those measurements, is totally incorrect. According to the petitioner, he never accepted the measurement while receiving part payment. Any amount received was 'with protest'. The contention that the writing 'with protest' was subsequently inserted and fabricated is absolutely incorrect. The petitioner has no access to the records subsequently, in order to add anything on it. So, in fact, there is no acceptance of the measurements and the contention that the petitioner has no right to claim any amount is absolutely incorrect. 5. On 06.08.2021, when this writ petition came up for consideration, this Court directed the 4[th] respondent Executive Engineer, Mavelikkara, to state the reason as to why the final bill submitted in the said office in respect of the construction of Nadapanthal of Thrikkattur Mahavishnu Temple in Aranmula Group is still being kept pending, without being forwarded to -10- ## W.P.(C). No. 3303 of 2021 the office of the 3[rd] respondent Chief Engineer. On 13.08.2021, the learned Standing Counsel for Travancore Devaswom Board submitted that he is awaiting certain clarifications from the 3[rd] respondent Chief Engineer. 6. On 03.09.2021, the learned Standing Counsel for Travancore Devaswom Board has filed a statement on behalf of the respondents. Paragraphs 6 to 8 of that statement read thus; “6. On receipt of the reply from the 4[th] respondent, the 3[rd] respondent went through the M-Book and other records made available by the Executive Engineer. It is seen that the Executive Engineer had noted the following defects. (1) The part bill was check measured on 05.04.2019 by his predecessor Sri.B.Kesavadas. (2) After being promoted Sri.Kesavadas to the post of Chief Engineer, the measurement recorded on page No.9 of M-Book No.310/MD/ 15 were striked off with initials of Chief Engineer. (3) The initially approved 12mm dia and 16mm dia steel rods were recertified as 8mm and the reason for which was depicted as oversight. (4) Later the bill was passed admitting the size of the bars used as 12mm and 16mm dia. Since all these bars are inside the concrete a clear decision is needed in accordance with the existing laws. 7. On verification, the 3[rd] respondent found the following:- (1) Some corrections were made in page No.9 of M Book No.310/MD/15 with the initials of CE W.P.(C). No. 3303 of 2021 -11- and endorsed in the M-Book that these mistakes happened due to oversight and the same was rectified. (2) It is understood that the corrections made in the dimensions of reinforcements happened after the approval of the first part bill. (3) The size of the 12mm dia steel rods were corrected to 10mm dia. (4) On perusal of the M-book and the check measurements which was recorded by the then Assistant Engineer (Sri.Venugopal) checked by the then Executive Engineer (Sri.B.Kesavadas), then corrected by the Chief Engineer (Sri.B.Kesavadas) who happened to be the then Executive Engineer. (5) From the records it is not clear what was the actual denomination of the steel rods used at the time of execution. (6) Only a specific analysis can explore the size of steel rods used. 8. The 3[rd] respondent states that, if any excess payment was made in the first part bill with regard to the change of denomination of steel rods used, the same could be recovered while settling the final bill. A true copy of the explanation forwarded by the 3[rd] respondent dated 23.08.2021 to the Standing Counsel of TDB is produced herewith and marked as **- Annexure R1(a)** . True copy of the letter No.175 dated 31.05.2021 forwarded by the 4[th] respondent to the 3[rd] respondent is produced herewith and marked as **Annexure-R1(b)** .” 7. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Travancore Devaswom Board. 8. The petitioner, who had undertaken certain works -12- ## W.P.(C). No. 3303 of 2021 awarded by the Travancore Devaswom Board, has filed this writ petition by contending that he is entitled for sanction and disbursement of balance amount due in respect of those works. In the counter affidavit filed by the respondents, it is contended that the petitioner had accepted the measurements based on the bills prepared from the office of the Assistant Engineer as stated in Exhibit R1(c) report dated 04.11.2020 of the 3[rd] respondent Chief Engineer. Based on that measurements bills were verified and passed. Later, it was noticed that a subsequent addition 'with protest' was added to the earlier recording 'measurements accepted'. Insofar as the construction work of Nadapanthal of Thrikkattur Mahavishnu Temple in Aranmula Group is concerned, the matter is now pending consideration before the 4[th] respondent Executive Engineer, Mavelikkara. 9. In **State of Kerala v. M.K. Jose [(2015) 9 SCC 433]** , after referring to the law laid down in **Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216]** and **Ganga Enterprises [(2003) 7 SCC 410]** , the Apex Court reiterated that a writ court should ordinarily not entertain a writ petition under Article 226 of the Constitution of India, if there is a -13- W.P.(C). No. 3303 of 2021 breach of contract involving disputed questions of fact. 10. In **M.K. Jose [(2015) 9 SCC 433]** the Apex Court noticed that, in **ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553]** a Two-Judge Bench after referring to various judgments as well as the pronouncement in **Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769]** and **Century Spinning and Manufacturing Company Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582]** granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. The issue that had arisen in **ABL International** was that an instrumentality of a State was placing a different construction on the clauses of the contract of insurance and the insured was interpreting the contract differently. The Court thought it apt merely because something is disputed by the insurer, it should not enter into the realm of disputed questions of fact. In fact, there was no disputed question of fact, but it required interpretation of the terms of the contract of insurance. Similarly, if the materials that come on record from which it is clearly evincible, the writ -14- W.P.(C). No. 3303 of 2021 court may exercise the power of judicial review. 11. In **M.K. Jose [(2015) 9 SCC 433]** the Apex Court was dealing with a case in which the High Court has appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent, and quashed the order of termination of contract. The Apex Court observed that, the procedure adopted by the High Court is quite unknown to exercise of powers under Article 226 in a contractual matter. 12. The learned counsel for the petitioner would rely on the judgment of a Division Bench of this Court in **Director of Agriculture, Thiruvananthapuram and others v. M.V.Ramachandran [2021 (5) KHC 437]** . In that case, the writ petitioner was a successful bidder for transportation of paddy seeds in lorries. After having successfully carried out the contract, he submitted the bills for payment. However, the amount sanctioned was much less than the amount due. Since the balance amount as per the agreement was not paid, he filed the writ petition. The learned Single Judge allowed the writ petition stating that a system which was not in vogue at the time of entering into the contract and which was not -15- W.P.(C). No. 3303 of 2021 included in the terms of the contract cannot be imposed, thereby denying the petitioner his dues in terms of the contract. The question before the Division Bench was whether the writ petitioner is entitled to the amount claimed or the claim needs to be denied for the reason that the dispute can be identified only after a detailed examination of the terms of the contract. The Division Bench noticed that there is no case for the appellants that the writ petitioner has made the calculations and submitted the bills/invoices deviating from the conditions contained in Ext.P1 notice inviting tender and the consequential agreement. The invoices were sanctioned based on odometer/kilometre readings at the time when the writ petitioner entered into the contract and upto the year 2019. The system of adopting Google map readings for calculation of distance of transportation was introduced for the first time in the year 2019. When the amount claimed by the writ petitioner is in respect of transportation invoice prior to the year 2019, a system which was not in vogue at the time of entering into the contract between the writ petitioner and the 2[nd] respondent cannot be imposed on him thereby denying him his dues in terms of the contract. Taking into account the -16- ## W.P.(C). No. 3303 of 2021 above undisputed aspect, the Division Bench found that merely because a dispute is raised with respect to the manner in which the distance is to be calculated, relying upon a subsequent tender notice, which is inconsequential to decide the issue, the same could never have been treated as a dispute in law or facts disabling a Writ Court to decide the actual issues raised if discernible from the materials available on record. 13. In the instant case, in the counter affidavit and the statement filed by the respondents serious disputes have been raised on the entitlement of the petitioner for disbursement of any further amount in respect of the contract works relating to annual maintenance of the school buildings. Those factual disputes cannot be decided in writ proceedings under Article 226 of the Constitution of India and it is for the petitioner to approach the competent forum for redressal of any legal grievance in respect of those contract works, in accordance with law. Insofar as the construction of Nadapanthal of Thrikkattur Mahavishnu Temple in Aranmula Group is concerned, the matter is now pending consideration before the 4[th] respondent Executive Engineer. It is for the 4[th] -17- W.P.(C). No. 3303 of 2021 respondent to forward the final bill to the 3[rd] respondent Chief Engineer after obtaining further clarifications, if any, from the petitioner, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment, and thereafter, the 3[rd] respondent Chief Engineer shall take an appropriate decision in the matter, as expeditiously as possible, at any rate, within a further period of one month, after affording the petitioner an opportunity of being heard. With the above directions, this writ petition is disposed of. No order as to costs. **sd/-** ## **ANIL K. NARENDRAN, JUDGE** **sd/-** **P.G. AJITHKUMAR, JUDGE** AV/ -18- W.P.(C). No. 3303 of 2021 ## **APPENDIX OF WP(C) 3303/2021** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE COMMUNICATION ISSUED BY THE ASSISTANT ENGINEER, CHENGANNUR TO THE EXECUTIVE ENGINEER MAVELIKKARA DATED 27.8.2019.** **EXHIBIT P2** **TRUE COPY OF THE LAWYER NOTICE ISSUED BY ADVOCATE R.RAJAN ON BEHALF OF THE PETITIONER DATED 2.1.2020.** - **EXHIBIT P3** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE PRESIDENT OF THE DEVASWOM BOARD.** **EXHIBIT P4** **TRUE COPY OF THE LAWYER NOTICE ISSUED BY THE PETITIONER THROUGH HIS LAWYER DATED 16.11.2020.** **EXHIBIT P5** - **TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER DATED 01.04.2021** **EXHIBIT P6** **TRUE COPY OF THE REPLY RECEIVED TO EXHIBIT P-5 FROM THE PUBLIC INFORMATION OFFICER, OFFICE OF THE EXECUTIVE ENGINEER DATED 19-04-2021** **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION FROM THE PUBLIC INFORMATION OFFICER, OFFICE OF THE EXECUTIVE ENGINEER, MAVELIKKARA TO THE PUBLIC INFORMATION OFFICER, OFFICE OF THE CHIEF ENGINEER, DATED 19-04-2021** - **EXHIBIT P8** **TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE PUBIC INFORMATION OFFICER OFFICE OF THE EXECUTIVE ENGINEER TDB, MAVELIKKARA DATED 01.04.2021** -19- W.P.(C). No. 3303 of 2021 **EXHIBIT P9** **TRUE COPY OF THE REPLY RECEIVED FROM THE PUBLIC INFORMATION OFFICER TO EXHIBIT P8 DATED 19.04.2021.** **EXHIBIT P10** **TRUE COPY OF THE APPLICATION DATED 0104-2021 SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER PERTAINING TO THE CONSTRUCTION OF NADAPANTHAL** **RESPONDENTS' EXHIBITS** **EXHIBIT R1(a) TRUE COPY OF REPORT OF THE ASSISTANT ENGINEER, THIRUVALLA DATED 22.01.2020** **EXHIBIT R1(b) TRUE COPY OF REPORT OF THE ASSISTANT ENGINEER, THIRUVALLA DATED 29.01.2020** **EXHIBIT R1(c)** **TRUE COPY OF REPORT DATED 04.11.2020 OF THE CHIEF ENGINEER** **ANNEXURE R1(a) TRUE COPY OF THE EXPLANATION FOWARDED BY THE 3RD RESPONDENT DATED 23.8.2021 TO THE STANDING COUNSEL OF TDB** **ANNEXURE R1(b) TRUE COPY OF THE LETTER NO.175 DATED 31.05.2021 FORWARDED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.**