Sivan Pillai v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 5TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940** **WP(C).No. 3622 of 2012** ## **PETITIONER(S)** **SIVAN PILLAI, SIVABHAVANAM, KUNNIMEL MURIYIL, KIDANGAYAM, SOORANADU THEKKU, NORTH MYNAGAPPALLY P.O.** **BY ADV.SRI.B.KRISHNA MANI** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT COLLECTOR, KOLLAM-691 013.** **3. THE SOORANAD SOUTH GRAMA PANCHAYAT, REPRESENTED BY SECRETARY, SOORANADU, SOUTH GRAMA PANCHAYAT, SOORANADU-690 522.** **4. THE ASSISTANT EXECUTIVE ENGINEER,** - **DISTRICT RURAL DEVELOPMENT AGENCY, KOLLAM-691 013.** **5. THE TAHSILDAR,** **TALUK OFFICE, KUNNATHUR, SASTHAMKOTTA-690 520.** **6. THE BLOCK PANCHAYAT OFFICER, SASTHAMKOTTA-690 520.** **R1,R2,R4 & R5 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER R3 BY ADV. SRI.P.V.DILEEP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **07.06.2018** **WP(C).No. 3622 of 2012** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **EXHIBIT P1: TRUE COPY OF THE ESTIMATE AND REPORT PREPARED BY THE 4TH RESPONDENT DATED 14.01.2003. EXHIBIT P2: TRUE COPY OF THE VOUCHER TOTALLING RS.1,15,130/- SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT PANCHAYAT DATED 15.03.2003. EXHIBIT P2(A): TRUE COPY OF THE VOUCHER TOTALLING RS.1,15,130/- SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT PANCHAYAT DATED 20.03.2003. EXHIBIT P2(B): TRUE COPY OF THE VOUCHER TOTALLING RS.1,15,130/- SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT PANCHAYAT DATED 29.03.2003. EXHIBIT P2(C): TRUE COPY OF THE VOUCHER TOTALLING RS.1,15,130/- SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT PANCHAYAT DATED 29.03.2003. EXHIBIT P2(D): TRUE COPY OF THE VOUCHER TOTALLING RS.1,15,130/- SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT PANCHAYAT DATED 01.04.2003. EXHIBIT P3: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED NIL. EXHIBIT P4: TRUE COPY OF THE NOTICE DATED 05.01.2004 ISSUED BY THE PETITIONER REQUIRING TO REMIT BACK THE 1ST INSTALMENT OF RS.1,86,000/- WITH 18% INTEREST. EXHIBIT P5: TRUE COPY OF THE REPLY DATED 25.02.2004 SUBMITTED BY THE PETITIONER. EXHIBIT P6: TRUE COPY OF THE NOTICE DATED 08.12.2005 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P7: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 18.03.2006. EXHIBIT P8: TRUE COPY OF THE COMPLAINT DATED 26.10.2007 FILED BY THE PETITIONER BEFORE THE KERALA STATE VIGILANCE DIRECTOR. EXHIBIT P9: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 20.02.2008. EXHIBIT P10: TRUE COPY OF THE COMMUNICATION TO THE ASSISTANT ENGINEER, BLOCK PANCHAYAT, SASTHAMKOTTA DATED 16.05.2008. EXHIBIT P11: TRUE COPY OF THE REPLY DATED 17.11.2008 RECEIVED THE PETITIONER FROM THE REVENUE DEPARTMENT. EXHIBIT P12: TRUE COPY OF THE RECEIPT DATED 31.03.2008.** **WP(C).No. 3622 of 2012** **EXHIBIT P12(A): TRUE COPY OF THE RECEIPT DATED 24.07.2008. EXHIBIT P12(B): TRUE COPY OF THE RECEIPT 31.03.2010. EXHIBIT P12(C): TRUE COPY OF THE RECEIPT 15.07.2010. EXHIBIT P13: TRUE COPY OF THE NOTICE DATED 09.01.2012 ISSUED BY THE 5TH RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 07.06.2018** ## SHAJI P. CHALY, J. ----------------------------------- W.P.(C) No.3622 of 2012 ------------------------------------ Dated this the 5[th] day of June, 2018 ## JUDGMENT This writ petition is filed by the petitioner seeking the following reliefs:- “i) Call for the records leading Ext.P13 and quash the same by a writ of certiorari or any other appropriate writ, order or direction; ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] , 3[rd] and 5[th] respondents to quantify the amount if any due after measuring the works already done by the petitioner and taking into account the payment already effected by the petitioner; iii) Stay all further proceedings pursuant to Ext.P13 until the disposal of this Writ Petition; iv) Award costs.” 2. Material facts for the disposal of the writ petition are as follows:- Petitioner was the convenor of a beneficiary committee of a W.P.(C) No.3622 of 2012 2 project which was being carried out under the Sampoorna Grameena Rozgar Yojana in the third respondent Panchayath. Under the said project, a bund, Koyikkalazhikath-Valiyachan Nada Bund was to be constructed under the food for work programme in the year 2002-2003. The workers were engaged, and, in accordance with the scheme workers were provided with food instead of wages. According to the petitioner, only after the allowed quota of rice is exhausted, they are paid wages. The scheme is sponsored by the Government India and implemented by the District Rural Development Agency. A true copy of the estimate is produced In the writ petition and marked as Ext.P1. The estimate of project is Rs.5,00,000/-. Accordingly from the above estimate as first instlament an intend for 30 tons of rice was sanctioned. An amount of Rs.1,86,000/- was given to the beneficiary committee being the price of rice. From the above, an amount of Rs.85,000/- was W.P.(C) No.3622 of 2012 3 handed over to the petitioner for construction activities. According to the petitioner, the construction activities were carried on with the availability of the funds. In fact, petitioner had submitted vouchers totalling Rs.1,15,130/- before the third respondent Panchayath, evident from Ext.P2 and P2 (a) to P3 (d). However, the release of further amounts were delayed under some pretext or the other. According to the petitioner, it is learnt that the balance amount from the first instalment of Rs.1,86,000/- after deducting Rs.85,000/-, which was paid to the petitioner were illegally misappropriated by some members of the third respondent Panchayath and some members of the beneficiary committee. It is also stated that, the local residents, whose property were coming under the project have also obstructed the work. To put it short, the work was not completed by the petitioner, consequent to which recovery action was initiated against the petitioner. There upon, W.P.(C) No.3622 of 2012 4 petitioner has approached the District Collector by making a representation, however, no action was initiated. Even though notices were issued under Sections 7, 34 and 36, petitioner did not respond to the same, consequent to which finally Ext.P13 notice is issued under Section 49 of the KRR Act seeking to sell off the property belonging to the petitioner. It is at this stage of proceedings, petitioner has approached this Court by filing this writ petition. 3. A detailed counter affidavit is filed by the second respondent refuting the allegations, claims and demands raised by the petitioner. Among other contentions, it is stated that, the action initiated under the KRR Act is in accordance with law. Petitioner has also submitted an application seeking extension of the time for completing the work, however, the work was not completed. It is admitted in the counter affidavit filed by the second respondent W.P.(C) No.3622 of 2012 5 that, petitioner has submitted a representation before the second respondent, District Collector, Kollam, requesting to measure the work done by the petitioner. It is further stated that, the District Collector has directed the third respondent to consider the petition and fix the liability of the petitioner, however, the steps by the third respondent on the above directions are not communicated to the office of the second respondent so far. Other contentions are also raised in the counter affidavit to justify the action initiated under the KRR Act, up to the sale notice under Section 49 of the KRR Act. 4. I have heard learned counsel for the petitioner, learned Government Pleader and perused the pleadings and documents on record. 5. In order to decipher the real issue by and between the parties as to whether the respondents are vested with powers to adjudicate the damages suffered by the respondents on account of W.P.(C) No.3622 of 2012 6 non-completion of the contract by the petitioner, petitioner has not produced the agreement executed by and between the parties. No doubt, if the termination of the contract is admitted, and if there is no dispute raised with respect to the default on the petitioner, definitely, a power is conferred on the statutory authority to adjudicate the damages suffered. The issue was considered by a Full Bench of this Court in Abdul Rahiman v. Divisional Forest Officer [1988(2) KLT 290(FB)] and held as follows in paragraph 12. _“12. When a contract is broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby. This principle of S.73 of the Contract Act equally applies where one of the contesting parties is the Government. It is the breach of the contract that gives rise to the cause for damages. The primary duty therefore is to fix the liability for the breach. Assessment of damages is only an incidental or subsidiary function. The liability to pay damages is thus fastened where there is breach of contract. However, when a dispute arises as to whether the contract has been broken or not, that dispute cannot be settled by one of the parties to the contract, for, be cannot be an arbiter in his own cause. The dispute may have to be referred to an arbitrator or the matter has to be settled in a court of law. This principle applies to the Government also as a party to the contract. Where the breach of the contract is admitted, i.e., where there is no dispute that the contract has been broken by one of the parties, the Government as the party entitled to claim compensation for_ W.P.(C) No.3622 of 2012 7 _breach need not wait for a determination by any outside agency as to whether there was any breach of contract. In that event, the question of damages alone remains to be considered. A sum can be named in the contract as the amount to be paid in case of breach, an amount in liquidation of the claim for compensation. The contract can thus provide for liquidated damages in the event of breach and the Government claiming that amount as compensation for the admitted breach committed by the other party to the contract, need not seek the aid of court or any outside agency for the fixation of the quantum of damages. Similarly, if the contract itself provides that “that one party shall be liable to pay damages to the second party as may be assessed by the second party”, the assessment by the second party, in case the breach is admitted, is binding on the first party and there is no more any necessity for a further quantification of the damages by any outside agency. The party assessing the damage can straight-away seek to recover the amount and that if that party is the Government, it can have recourse to the remedy available under the Kerala Revenue Recovery Act.”_ Therefore, if there is a clause under the agreement to adjudicate the issue, definitely there is power to adjudicate, proceed and recover the amount in accordance with the provisions of the KRR Act. As I have pointed out earlier since the agreement is not before me I am unable to say anything on the said aspect. 6. It is also evident from the counter affidavit filed by the second respondent that, a representation was pending before the District Collector to measure out the work carried out by the W.P.(C) No.3622 of 2012 8 petitioner. The further statements made thereunder makes it clear that, a finality was not attained to the said representation submitted by the petitioner. Taking into account all these aspects, I think it is only appropriate that an opportunity is provided to the petitioner by the second respondent in order to put forth the case projected by the petitioner in this writ petition. Petitioner will also be at liberty to file any further statement against the recovery action initiated by the respondents on account of the contract. Petitioner will also be at liberty to produce all necessary documents to substantiate the case put forth by the petitioner in this writ petition. If additional objection and documents are produced by the petitioner within one month from the date of receipt of a copy of this judgment, a final adjudication shall be done by the second respondent, after providing sufficient opportunity of participation to the petitioner, within two months thereafter. W.P.(C) No.3622 of 2012 9 7. When this writ petition was admitted to the files of this Court, an interim order was granted on condition that petitioner remits an amount of Rs.40,000/- within three weeks. From the counter affidavit filed by the second respondent it is evident that, the said interim order is complied with by the petitioner. Accordingly the interim order granted by this Court will be in force, till such time the directives are complied with by the second respondent. Writ petition is disposed of accordingly. Sd/- SHAJI P. CHALY, JUDGE dlk/5/6/18