Vazhathope Grama Panchayat represented by its President, George Paul v. Government of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945** **WP(C) NO. 23598 OF 2023** ## **PETITIONER:** **VAZHATHOPPE GRAMA PANCHAYATH REPRESENTED BY ITS PRESIDENT, GEORGE PAUL, S/O PAILY THEKKEMALAYIL HOUSE THADIYAMPADU P.O, IDUKKI, PIN – 685 602.** **BY ADVS. JOICE GEORGE LIJI.J.VADAKEDOM** ## **RESPONDENTS:** **1 THE GOVERNMENT OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. 2 THE KERALA STATE DISASTER MANAGEMENT AUTHORITY, REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE & DISASTER MANAGEMENT STATE RELIEF COMMISSIONER & CONVENOR, OBSERVATORY HILLS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN – 695 033.** - **3 DISTRICT DISASTER MANAGEMENT - IDUKKI REPRESENTED BY ITS CHAIRMAN, DISTRICT COLLECTOR, KUYILIMALA, PAINAVU P.O., IDUKKI, PIN – 685 603.** - **4 THE DISTRICT COLLECTOR IDUKKI KUYILIMALA, PAINAVU P.O., IDUKKI, PIN – 685 603.** **5 SURESH K.R S/O RAVEENDRAN, KUNNEL HOUSE, MANIYARANKUDY P.O., IDUKKI, PIN – 685 602.** W.P.(C) No.23598/2023 : 2 : - **6 KHALEELUDHEEN KUNJU S/O ISMAIL KUNJU(LATE), NILACKAL THEKKETHIL, IDUKKI COLONY, PIN – 685 602.** - **7 VINOD N V S/O VIJAYAN, NJATTUVEETTIL(H), MULAKUVALLY, KOKKARAKULAM, IDUKKI, PIN – 685 602.** - **8 TILBY JOSE W/O BINU K.V., KAITHAVELIL HOUSE, MANIPPARA P.O., KARIMPAN, IDUKKI, PIN – 685 602.** - **9 P.D. JOSEPH S/O DEVASIA(LATE), POOVAMKATTIL HOUSE, MANIYARANKUDY P.O., IDUKKI, PIN – 685 602.** **10 SIJO K.C S/O CHACKO, KALAPPURACKAL HOUSE, MANIYARANKUDYP.O., IDUKKI, PIN – 685 602.** **BY ADV DHEERAJ A.S, GOVERNMENT PLEADER JULIAN XAVIER J.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.23598/2023 : 3 : ## **CR** ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.23598 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 6[th] day of October, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The Vazhathope Grama Panchayat has filed this writ petition seeking to set aside Ext.P8 to the extent it directs the Grama Panchayat to pay the bills due to respondents 5 to 10 pertaining to the works undertaken as part of the Disaster Mitigation Drive initiated by the Government under the provisions of the Disaster Management Act, 2005. The petitioner-Panchayat has also sought for certain incidental reliefs. The Grama Panchayat, as per resolution dated 21.06.2023, has authorised the Panchayat President to represent the Panchayat in this writ petition. W.P.(C) No.23598/2023 : 4 : 2. During the massive floods and torrential rains that devastated Kerala in the years 2018 and 2019, the Government had issued certain directions for desilting and removal of the debris from the flood affected rivers and streams, as per G.O. dated 24.12.2019. The G.O. was issued under the provisions of the Disaster Management Act, 2005. 3. Based on the G.O. dated 24.12.2019, the 4[th] respondent-District Collector of Idukki who is also the Chairman of the District Disaster Management Committee, accorded sanction for desilting and removal of debris from the rivers in Idukki District, as per Ext.P2 proceedings dated 22.05.2020. In Ext.P2 proceedings, the Vazhathope Panchayat was allocated only ₹10 lakhs for the desilting work. The Panchayat invited quotations for the work as per Ext.P3 quotation dated 20.05.2020. Respondents 5 to 10, being the lowest bidders, were awarded the work. The Panchayat entered into agreements with them. When the Panchayat raised bills after completing the work, the District W.P.(C) No.23598/2023 : 5 : Collector returned the bills to the Panchayat requiring to resubmit the same along with TS and measurements duly approved by the Executive Engineer. The Secretary resubmitted the bills. No objections were raised in executing works exceeding the fund allotted, at this point of time, contends the petitioner. 4. As the bills were not cleared, respondents 5 to 10 filed W.P.(C) No.7380/2021 and connected cases seeking disbursement of amounts due to them. The said writ petition was disposed of by this Court directing the Assistant Executive Engineer and the Assistant Engineer of LSGD Sub Division/Section to verify the bills submitted by the petitioners in consultation with Ward Members concerned and make an assessemnt of the work to the best of their judgment. This Court directed that after verification and assessment of the work, the bills should be submitted to the District Collector. The District Collector was directed to verify the bills and sanction eligible amount to the petitioners. W.P.(C) No.23598/2023 : 6 : 5. The petitioner states that after receiving the bills, the District Collector noted certain defects which were cured and resubmitted. The District Collector sanctioned an amount of ₹9,18,587/- only, as per Ext.P8. By Ext.P8, the District Collector, who is the Chairman of the DDMA, transferred liability to make payment in respect of other works to the petitioner. The Panchayat in its meeting held on 11.11.2022 resolved to request the District Collector to sanction an additional amount of ₹11,63,779/- required for the payment of the remaining bills pertaining to the 11 works executed by the Contractors including respondents 5 to 10 herein. 6. The petitioner-Panchayat submits that the disaster mitigation works executed by the Panchayat were not included in the annual plan of the Panchayat which is to be approved by the District Planning Committee. As the work was already commenced and completed, such works cannot be included in the annual plan of the Panchayat. The Panchayat took steps to execute the works at the instance of W.P.(C) No.23598/2023 : 7 : the 4[th] respondent-Chairman, DDMA. The Panchayat cannot make payments without getting approval from the DPC for including the works in question in the annual plan, which is not permissible after the plan period. It is in these circumstances that the petitioner-Panchayat has approached this Court seeking to direct respondents 1 to 4 to sanction the funds required for the payment of the bills due to respondents 5 to 10 for the works undertaken by them as part of the Disaster Mitigation Drive initiated by the State Government. 7. The 4[th] respondent-District Collector opposed the writ petition filing counter affidavit. The 4[th] respondent admitted that the Government had ordered removal of debris accumulated in various rivers, streams and waterbodies in Kerala following the massive floods in the year 2018. Panchayats were directed to submit proposals. The Government as per G.O. dated 19.05.2020 allocated ₹10 lakhs to the petitioner-Panchayat subject to the condition that the works must be completed before 16.05.2020. W.P.(C) No.23598/2023 : 8 : 8. The 4[th] respondent submitted that pursuant to the directions given by this Court in W.P.(C) No.7380/2021 and connected cases, the office of the 4[th] respondent directed the Assistant Executive Engineer and Assistant Engineer, LSGD to verify the bills submitted by the Panchayat in consultation with the Ward Members concerned. The bills, M-Books, etc. submitted by the Panchayat were examined and amount was sanctioned to the Panchayat subject to the condition that funds for extra works shall be raised by the Panchayat itself. 9. The 4[th] respondent further submitted that after verifying the bills, the District Collector sanctioned ₹9,18,587/- to the Panchayat. On the request from the Panchayat Secretary, the Government sanctioned disbursement of allocated funds to the Panchayat. The 4[th] respondent submitted that the Panchayat has not submitted any account of the sand obtained consequent to desilting. The DDMA is not in a position to allocate any further amount to the Panchayat. W.P.(C) No.23598/2023 : 9 : 10. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 4 and the learned counsel for respondents 5 to 7. 11. The issue arising in this writ petition for adjudication is whether the Government of Kerala is bound to honour the bills submitted by the Contractors/Panchayat in connection with the desilting work of rivers necessitated due to the devastating floods that engulfed Kerala in the year 2018. The 3[rd] respondent is the District Disaster Management Authority, Idukki and the 4[th] respondent is its Chairman, the District Collector. The 1[st] respondentGovernment of Kerala had, as per G.O.(Rt) No.3880/2019/RD dated 24.12.2019, issued directions to the District Collectors to conduct desilting and removal of debris from flood affected rivers and streams in the context of torrential rains and consequential massive floods occurred in 2018 and 2019. Obviously, the directions were issued under the Disaster Management Act. The District Collector, Idukki consequently issued Ext.P2 proceedings dated 22.05.2020 W.P.(C) No.23598/2023 : 10 : whereunder the petitioner-Panchayat was allocated ₹10 lakhs for desilting. Ext.P2 proceedings would indicate that the Panchayat was directed to complete the work before 10.06.2020 and report the matter to the DDMA. 12. Ext.P2 proceedings of the District Collector would show that such direction was given on 22.05.2020 and the work had to be completed in less than 20 days, on or before 10.06.2020. By the sheer nature of the work, the Panchayat could not have gauged the quantum of work, namely the quantity of desilting and the quantity of debris to be removed from rivers and streams within the short span of time. Taking into account the emergency nature of the work, the Panchayat moved fast, invited quotations and awarded works to Contractors. Idukki District is situated on the eastern mountainous part of Kerala and any lack of desilting work of the rivers of Idukki, would have adverse effect in other Districts also. 13. In the case of Vazhathope Grama Panchayat, the Panchayat executed the works for which an additional W.P.(C) No.23598/2023 : 11 : expenditure of ₹11,63,779/- was incurred. It is true that by Ext.P2 proceedings, the DDMA had allocated only ₹10 lakhs for the petitioner-Panchayat for desilting work. But, it is also true that the desilting and removal of debris during the flood period were extremely necessary to mitigate the disaster. It is to be noted that nobody has a case that the Panchayat has not carried out the desilting work through Contractors, for which additional funds are sought. Though in his counter affidavit, the 4[th] respondent would allege that the Panchayat has not submitted the account of sand obtained, the Panchayat would submit that during removal of debris and desilting, no sand was obtained. The respondents do not have a case that sand was obtained and proceeds thereof has been appropriated by the Panchayat. The work was indeed to be carried out. The issue is who has to make payment for the said work. 14. The petitioner would urge that the additional funds are sought for works which are already carried out. The works cannot be included in the annual plan of the W.P.(C) No.23598/2023 : 12 : Panchayat since already commenced and completed works will not get approval from the District Planning Committee (DPC). Going by Rule Book, the petitioner-Panchayat cannot spend money for executing works without including the specific projects in the annual plan and getting approval from the DPC. Going by the emergency nature of the work, the Panchayat could not have included the desilting work in the annual plan and get approval from the DPC as the work had to be executed on a war footing basis. 15. In the context of a disastrous situation arose out of the unprecedented rains and floods, can the Panchayat be blamed of incurring expenditure exceeding the Sanctioned Limit? In the judgment in _**Vijayan and others v. State of Kerala and others**_ [2022 (4) KLT 245], this Court considered operations of laws in a calamitous period and held as follows: 56. Ordinarily, laws are framed and are meant to regulate and govern times of peace. The laws meant to govern the times of peace may become insufficient and even hurdles to tackle situations in extra ordinary times like war, calamities, catastrophes, pandemics and disasters. A democratic State should have the power to make such laws which would help to overcome such W.P.(C) No.23598/2023 : 13 : disasters with least hardship and loss of life and property of its citizens. Section 72 of the Act, 2005 gives overriding effect to the provisions of the Act notwithstanding anything inconsistent there with contained in any other law or in any instrument having effect by virtue of any law other than the Act, 2005. 57. Providing for special laws to govern difficult times, overriding or even superseding ordinary laws, is not a novel concept or invention of modern democracies. Deliberate freezing of or departure from ordinary laws during difficult times, existed in all societies, even in monarchies, theocracies and other forms of States. In India, such special legal mandates were described as “Apat-Dharma”. Shanti Parva of Mahabharata states that rights and duties of citizens vary, depending on whether they are living in times of peace or in times of crisis. " अन� धर�: सरससव�षरससच�पर� । आपदससकथथशक� पररप�ठ�न ��वदतसरम ॥ 12.260.4 anyo dharmah samasthasya visamasthasya caparah apadastu katham sakyah paripathena veditum -12.260.4 Duties of citizens vary, depending on whether they are living in times of peace or in times of crisis. Written texts mostly advise about times of peace. However, if necessary adjustment is not made therein, it proves to be inappropriate to meet the challenges of a crisis.” 58. “Apat-Dharma” means a course of procedure not usually proper or permissible in ordinary times but allowable in times of extreme distress or calamity. When a State faces calamities, there is only one goal of life, viz., protection of its citizens. Facing a serious calamity must be viewed as a long term effort. In such prolonged process, there is bound to be need to make adjustments for attainment of the objective. The exemption or departure from ordinary laws granted during adverse W.P.(C) No.23598/2023 : 14 : times is restricted to the end of the adverse times and continues till the beginning of a favourable time. 59. Section 72 of the Disaster Management Act, 2005, in effect, gives the general law of “Apat Dharma”, a statutory recognition. In times of disasters, the Disaster Management Act, 2005 will and should override the provisions of other laws, because the Act, 2005 is intended to protect the very life of the citizens, without which the words right, liberty or freedom and even the word Constitution will have no meaning. 16. Under the Disaster Management Act, it is the primary duty of the State Disaster Management Authority and the District Disaster Management Authority to take all possible measures to mitigate any disaster. It is for that fundamental requirement that the Disaster Management Authorities have been constituted. The petitioner-Panchayat has executed the work as directed by the 4[th] respondent, who is the Chairman of the DDMA. The work had to be carried out in larger public interest, to save human lives and property. Therefore, it is incumbent upon respondents 2 and 3 to meet the expenditure involved for the disaster mitigating work, namely desilting and removal of debris from rivers. W.P.(C) No.23598/2023 : 15 : In the afore facts of the case, the petitionerPanchayat cannot be burdened with meeting the additional expenditure incurred in connection with disaster management work. The writ petition is therefore allowed. Respondents 1 to 4 are directed to sanction the additional funds required for payment of the bills for the works undertaken by them as part of the Disaster Mitigation Drive initiated pursuant to the directions of the Government. Necessary funds shall be sanctioned and disbursed by respondents 1 to 4 to the petitioner-Panchayat within a period of two months. Sd/- **N. NAGARESH, JUDGE** aks/24.11.2023 W.P.(C) No.23598/2023 : 16 : ## **APPENDIX OF WP(C) 23598/2023** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE RESOLUTION NO. 23(1) DATED 21-06-2023 OF THE PETITIONER GRAMA PANCHAYAT.** **Exhibit P2 TRUE COPY OF THE PROCEEDINGS NO. E98932/19 DATED 22-05-2020 OF THE 4TH RESPONDENT DISTRICT COLLECTOR.** **Exhibit P3 TRUE COPY OF THE QUOTATION DATED 2005-2020 ISSUED BY THE SECRETARY OF THE PETITIONER PANCHAYATH.** **Exhibit P4 TRUE COPY OF THE LETTER NO. DCIDK/5521/2020-E9 DATED 22-12-2020.** **Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 21-12-2021 IN WP(C) NO.7380 OF 2021 AND CONNECTED CASES.** **Exhibit P6 TRUE COPY OF THE COMMUNICATION NO. DCIK8932/2018/E9 DATED 28-02-2022 OF THE 4TH RESPONDENT TO THE PETITIONER.** **Exhibit P7 TRUE COPY OF THE COMMUNICATION NO. A2-815/22 DATED 24-03-2022 OF THE PETITIONER TO THE 4TH RESPONDENT.** **Exhibit P8 TRUE COPY OF THE PROCEEDINGS NO. DCIDK8932/2018/E9 DATED 26-03-2022 OF THE 4TH RESPONDENT.** **Exhibit P9 TRUE COPY OF THE RESOLUTION NO.11/1 DATED 11-11-2022 OF THE PETITIONER GRAMA PANCHAYAT.** W.P.(C) No.23598/2023 : 17 : **Exhibit P10** **Exhibit P11** **Exhibit P12** **Exhibit P13** **Exhibit P14** - **Exhibit P15** **TRUE COPY OF THE COMMUNICATION NO.A4/6419/22 DATED 14/11/2022 OF THE PETITIONER TO THE 4TH RESPONDENT.** **TRUE COPY OF THE COUNTER FILED BY THE SECRETARY OF THE PANCHAYATH IN CONTEMPT CASE NO. 2359/2022.** - **TRUE COPY OF THE MEMO DATED 02-12-2022 FILED BY THE GOVERNMENT PLEADER ALONG WITH THE PROCEEDINGS OF THE DISTRICT COLLECTOR.** - **TRUE COPY OF THE RESOLUTION NO. 1(1) DATED 21-05-2023 OF THE STEERING COMMITTEE OF THE PETITIONER GRAMA PANCHAYAT.** - **TRUE COPY OF THE COMMUNICATION NO. A4/6419/22 DATED 22-06-2023 OF THE PETITIONER GRAMA PANCHAYAT ADDRESSED TO THE 4TH RESPONDENT DISTRICT COLLECTOR.** - **TRUE COPY OF THE ORDER DATED 12-06-2023 IN CON. CASE NO. 2359/2022 OF THIS HON'BLE COURT.**