Allowed

C.v.Abraham v. the District Panchayat

Kerala HC13 Jul 2022WP(C)/29429/2012

Case brief

AI extract

What is this about?

Two writ petitions filed by government contractors challenging illegal retention of sums by panchayats alleging improper deduction of beneficiary contributions. The court directed payment of withheld amounts with interest.

What did the court decide?

Directing the 1st respondent in WP(C) No.30021/2012 to pay Rs.4,27,272/- and a sum in WP(C) No.29429/2012 of Rs.4,77,788/- along with interest at 9% per annum.

C.v.Abraham Vs the District Panchayat — Contract and Commercial Disputes | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

¶4

FRIDAY, THE 25TH DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944

¶5

WP(C) NO. 30021 OF 2012

¶6

PETITIONER:

¶7

C.V.ABRAHAM (DIED)
CLASS A GROVERNMENT CONTRACTOR, CHERUTHOTTIL HOUSE,
THAMMANIMATTOM, RAMAMANGALAM P.O., ERNAKULAM DISTRICT.

¶8

ADDL.PETITIONERS 2 AND 3 IMPLEADED

¶9

ADDL.P2RAMANI ABRAHAM, AGED 68,
W/O.LATE C.V.ABRAHAM, CHERUTHOTTIL HOUSE,
THAMMANIMATTOM, RAMAMANGALAM PO, PIN-686 663
ADDL.P3MARY ABRAHAM, AGED 36,
D/O.LATE C.V.ABRAHAM, CHERUTHOTTIL HOUSE,
THAMMANIMATTOM, RAMAMANGALAM PO, PIN-686 663

¶10

ADDL.P2 AND P3 IMPLEADED AS PER ORDER DATED 25.11.2022
IN IA 1/2022.

¶11

BY ADVS.
SRI.DINESH R.SHENOY
SRI.G.HARIKRISHNAN TRIPUNITHURA
SRI.R.V.RAHUL

¶12

RESPONDENTS:

¶13

1 THE DISTRICT PANCHAYATH ERNAKULAM, REP.BY ITS SECRETARY, O/O.DISTRICT PANCHAYATH, ERNAKULAM, KAKKANAD, COCHIN- 682030.

¶14

2 THE EXECUTIVE ENGINEER ERNAKULAM DISTRICT PANCHAYATH, O/O.DISTRICT PANCHAYATH, ERNAKULAM, COCHIN - 682030.

¶15

3 THE KORATTY GRAMA PANCHAYATH P.O.KORATTY, THRISSUR, PIN - 680308, REP.BY ITS SECRETARY.

¶16

4 THE ASSISTANT ENGINEER

¶17

LSGD SECTION, KORATTY GRAMA PANCHAYATH, P.O.KORATTY,
THRISSUR, PIN – 680308.

¶18

WP(C) NOS. 30021
& 29429 OF 2012

¶19

¶20

BY ADVS.SRI.T.R.RENJITH, GOVT. PLEADER
SRI.DILISH JOHN, SC, ERNAKULAM DISTRICT
PANCHAYAT
SRI.PHILIP T.VARGHESE - R3
SRI.THOMAS T.VARGHESE
KUM.KRISHNA RAJENDRAN
SRI.BINOY – R1 & R2

¶21

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.11.2022, ALONG WITH WP(C).29429/2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶22

WP(C) NOS. 30021
& 29429 OF 2012

¶23

¶24

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

¶25

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY,THE 25TH DAY OF NOVEMBER 2022/4TH AGRAHAYANA,1944
WP(C) NO. 29429 OF 2012

¶26

PETITIONER:

¶27

1C.V.ABRAHAM (DIED)
CLASS A GROVERNMENT CONTRACTOR, CHERUTHOTTIL
HOUSE, THAMMANIMATTOM, RAMAMANGALAM P.O.,
ERNAKULAM DISTRICT.

¶28

ADDL.PETITIONERS 2 AND 3 IMPLEADED

¶29

ADDL.P2 RAMANI ABRAHAM, AGED 68, W/O.LATE C.V.ABRAHAM, CHERUTHOTTIL HOUSE, THAMMANIMATTOM, RAMAMANGALAM PO, PIN-686 663

¶30

ADDL.P3 MARY ABRAHAM, AGED 36, D/O.LATE C.V.ABRAHAM, CHERUTHOTTIL HOUSE, THAMMANIMATTOM, RAMAMANGALAM PO, PIN-686 663

¶31

ADDL.P2 AND P3 IMPLEADED AS PER ORDER DATED
25.11.2022 IN IA 1/2022.

¶32

BY ADVS.SRI.DINESH R.SHENOY
SRI.G.HARIKRISHNAN TRIPUNITHURA
SRI.R.V.RAHUL

¶33

RESPONDENTS:

¶34

1 THE DISTRICT PANCHAYAT ERNAKULAM,REPRESENTED BY ITS SECRETARY,O/O.DISTRICTPANCHAYATH,ERNAKULAM, KAKKANAD,COCHIN-682030.

¶35

2 THE EXECUTIVE ENGINEER ERNAKULAM DISTRICT PANCHAYATH,O/O.DISTRICT PANCHAYATH,ERNAKULAM,COCHIN-682030.

¶36

WP(C) NOS. 30021
& 29429 OF 2012

¶37

¶38

BY ADVS.
SRI.DILISH JOHN, SC
KUM.KRISHNA RAJENDRAN

¶39

SRI.BINOY

¶40

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.11.2022, ALONG WITH WP(C).30021/2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶41

WP(C) NOS. 30021
& 29429 OF 2012

¶42

¶43

P.V. KUNHIKRISHNAN, J.

¶44

------------------------------

¶45

W.P.(C).Nos. 30021 and 29429 of 2012

¶46

Dated this the 25^th day of November, 2022

¶47

JUDGMENT

¶48

These two writ petitions are connected and therefore I am disposing of these two writ petitions by a common judgment.

¶49

Pending these writ petitions, the petitioner died and therefore, petitioners 2 and 3 are impleaded as additional petitioners. (Hereinafter the deceased 1^st petitioner is mentioned as the petitioner). First I will narrate the facts in W.P.(C)No.30021/2012:

¶50

The petitioner is a Government Contractor engaged in the contract works under the Government and various Local Self Government bodies. The 1^st respondent and the 3^rd respondent had issued notices for inviting tenders for several works under the Peoples Planning Programme. Petitioner also submitted tenders for five such works. Tender notices published in respect of this and all other works are identical in nature. As per the terms and

¶51

WP(C) NOS. 30021
& 29429 OF 2012

¶52

¶53

conditions of such works, 10% of the tender amount is to be paid by the beneficiaries/farmers. For that purpose, a separate agreement is normally executed between the beneficiaries and the District Panchayath or the Grama Panchayath, as the case may be. According to the petitioner, the contractor has nothing to do with this agreement and he is not a beneficiary to the works. As far as the contractors are concerned, the tender notices and the agreement executed with the 2^nd respondent alone form the basic documents. As per the agreement signed between the petitioner and the 2^nd respondent, the petitioner is awarded a tender and asked to complete the works against payments to be made by the District Panchayath or the Grama Panchayath. According to the petitioner, the respondents are bound to pay to the petitioner upon the successful and proper completion of the work awarded, the entire amount quoted in his tender which has been accepted by the respondents after deducting only the taxes and the other statutory deductions. But it was found that the amount paid by demand draft were less than the amount specified in the final bills submitted for the different works. According to

¶54

WP(C) NOS. 30021
& 29429 OF 2012

¶55

¶56

the petitioners, the respondents had retained 10% of the tender amount illegally and unauthorizedly towards the alleged unpaid beneficiary contribution. Hence these writ petitions are filed for the payment of the balance amount along with interest.

¶57

Heard counsel appearing for the petitioners and the counsel appearing for the Panchayath. I also heard the learned Special Government Pleader who appeared for the official respondents.

¶58

When these writ petitions came up for consideration, it is conceded by both sides that the point raised in these writ petitions are covered in favour of the petitioners as per judgment dated 22.10.2018 in W.P.(C). No.23790/2013 and as per Ext.P15 in W.P.(C). No.30021/2012. It will be better to extract the relevant portion of the judgment in W.P.(C). No.23790/2013:

¶59

“9. Ext.R2(a) is the agreement executed between the petitioner and the Assistant Executive Engineer, LSGD Division, Ernakulam for execution of the work in question. The tender for the work was accepted at 15% above the estimate rate and the estimate rate was Rs.13,20,862/-. Except for the fact that the schedule to

¶60

WP(C) NOS. 30021
& 29429 OF 2012

¶61

¶62

Ext.R2(a) contains a provision for deduction, no condition is seen fixed in the agreement that the 10% would be deducted towards beneficiary contribution or that the amount is payable only in accordance with any Government Order as referred to in the counter affidavit.

¶63

The judgment Ext.P7 was with respect to a work executed by the petitioner pursuant to a tender notification issued on 15.8.2003 and agreement executed on 27.10.2003. Referring to a condition in the agreement to the effect that 20% of the project cost would be given to the contractor by the beneficiaries, the Division Bench held that the said 20% has to be collected by the Panchayat and made over to the contractor. Therefore, the Panchayat was directed to make the payment.

¶64

Even though the respondents have referred to a Government Order issued on 14.5.2007 in support of the contention that 10% amount is liable to be deducted from the bill amount, the said order is not produced. The District Panchayat has also not entered appearance or filed any counter affidavit.

¶65

In the present case, the work is executed for the District Panchayat. Therefore, the beneficiaries contribution to the extent of 10% has to be collected by the District Panchayat from the beneficiaries for disbursement to the petitioner. In view of Ext.P7 judgment, it is for the 1st respondent Panchayat to make the payment of 10% to the petitioner.

¶66

Therefore, there shall be a direction to the 1^st

¶67

WP(C) NOS. 30021
& 29429 OF 2012

¶68

¶69

respondent Panchayat to disburse the 10% of the tender amount i.e, a sum of Rs.1,33,416.68 (Rupees One lakh thirty three thousand four hundred and sixteen and paise sixty eight only) to the petitioner along with interest at the rate of 9% per annum for the period from 31.07.2012, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is allowed accordingly.”

¶70

It is also submitted that the writ appeal filed against the judgment in W.P.(C). No.23790/2013 is dismissed as per judgment dated 04.03.2020 in W.A.No.429/2020. This Court also granted interest for the amount due as per the judgment dated 22.10.2018 in W.P.(C). No.23790/2013 and the same is confirmed in the Writ Appeal.

¶71

Therefore, these writ petitions are allowed of in the following manner:

¶72

The 1^st respondent in W.P.(C). No.30021/2012 is directed to pay an amount of Rs.4,27,272/- withheld by the 1^st respondent and an amount of Rs.54,647/withheld by the 3^rd respondent to petitioners 2 and 3, together with interest at the rate of 9% per annum from the

¶73

WP(C) NOS. 30021
& 29429 OF 2012

¶74

¶75

respective dates of final bill till the date of actual payment.

¶76

The 1^st respondent in W.P.(C). No.29429/2012 is directed to pay an amount of Rs.4,77,788/- with interest at the rate of 9% per annum from the respective dates of final bill till the date of actual payment.

¶77

sd/-

¶78

P.V.KUNHIKRISHNAN JUDGE

¶79

¶80

WP(C) NOS. 30021
& 29429 OF 2012

¶81

¶82

APPENDIX OF WP(C) 30021/2012

¶83

`PETITION`	`ER EXHI`	`BITS`
`EXHIBIT`	`P1`	`TRUE PHOTOCOPY OF NOTICE DATED`
		`14/2/2012 PUBLISHED IN THE VEEKSHANAM` `DAILY IN RESPECT OF THE KUTTICHIRA` `LIFT` `IRRIGATION` `SCHEME` `IN`
		`PUTHENVELIKKARA PANCHAYATH BY THE 2ND` `RESPONDENT.`
`EXHIBIT`	`P2`	`TRUE PHOTOCOPY OF THE AGREEMENT` `EXECUTED BY THE PETITIONER AND THE`
		`2ND RESPONDENT IN RESPECT OF EXHIBIT` `P1.`
`EXHIBIT`	`P3`	`TRUE PHOTOCOPY OF LETTER DATED` `23/3/2012 AWARDING EXHIBIT P1 WORK.`
`EXHIBIT`	`P4`	`TRUE HHOTOCOPY OF LETTER ISSUED BY` `4TH RESPONDENT DATED 11/11/2009 WITH` `TENDER SCHEDULE.`
`EXHIBIT`	`P5`	`TRUE HHOTOCOPY OF LETTER ISSUED BY` `4TH RESPONDENT DATED 11/11/2009 WITH` `TENDER SCHEDULE.`
`EXHIBIT`	`P6`	`TRUE HHOTOCOPY OF LETTER ISSUED BY` `4TH RESPONDENT DATED 11/11/2009 WITH` `TENDER SCHEDULE.`
`EXHIBIT`	`P7`	`TRUE HHOTOCOPY OF LETTER ISSUED BY` `4TH RESPONDENT DATED 11/11/2009 WITH` `TENDER SCHEDULE.`
`EXHIBIT`	`P8`	`TRUE PHOTOCOPY OF LETTER DATED` `16/10/2012 ACKNOWLEDGING SATISFACTORY` `COMPLETION OF EXHIBIT P1 WORK.`
`EXHIBIT`	`P9`	`TRUE PHOTOCOPY OF CERTIFICATES ISSUED`
		`BY` `THE` `4TH` `RESPONDENT` `DATED`
		`13/11/2009` `TO` `THE` `PETITIONER` `REGARDING SUCCESSFUL COMPLETION OF` `THE 4 WORKS UNDERTAKEN BY HIM UNDER` `THE 3RD RESPONDENT.`
`EXHIBIT`	`P10`	`TRUE PHOTOCOPY OF` `CERTIFICATES`
		`ISSUED BY THE 4TH RESPONDENT DATED` `13/11/2009` `TO` `THE` `PETITIONER` `REGARDING SUCCESSFUL COMPLETION OF` `THE 4 WORKS UNDERTAKEN BY HIM UNDER` `THE 3RD RESPONDENT.`
`EXHIBIT`	`P11`	`CERTIFICATES ISSUED BY THE 4TH`

¶84

WP(C) NOS. 30021
& 29429 OF 2012

¶85

¶86

RESPONDENT DATED 13/11/2009 TO THE
PETITIONERREGARDINGSUCCESSFUL
COMPLETION OF THE 4 WORKS UNDERTAKEN
BY HIM UNDER THE 3RD RESPONDENT.
EXHIBIT P12CERTIFICATES ISSUED BY THE 4TH
RESPONDENT DATED 13/11/2009 TO THE
PETITIONERREGARDINGSUCCESSFUL
COMPLETION OF THE 4 WORKS UNDERTAKEN
BY HIM UNDER THE 3RD RESPONDENT.
EXHIBIT P13TRUE PHOTOCOPY OF LETTER DATED
19/11/2012 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER.
EXHIBIT P14TRUE PHOTOCOPY OF DETAILS OF PAYMENT
TO CONTRACTOR ISSUED BY THE 3RD
RESPONDENT IN RESPECT OF THE 4 WORKS
COVERED BY EXHIBITS P9 TO P12.
EXHIBIT P15TRUE PHOTOCOPY OF JUDGMENT DATED
27/1/2006INWRITAPPEAL
NO.1520/2005, HIGH COURT OF KERALA.

¶87

WP(C) NOS. 30021

¶88

& 29429 OF 2012

¶89

¶90

APPENDIX OF WP(C) 29429/2012

¶91

PETITIONER EXHIBITS

¶92

`EXHIBIT P1`	`TRUE PHOTOCOPY OF NOTICE DATED`
	`17/12/2009` `PUBLISHED` `IN` `THE`
	`DESHABHIMANI DAILY IN RESPECT OF THE`
	`WORK OF PROVIDING PVC PIPES OF`
	`PURATHAYIPADOM LIFT IRRIGATION BY THE` `2ND RESPONDENT.`
`EXHIBIT P2`	`TRUE PHOTOCOPY OF TENDER NOTICE DATED`
	`01.02.2010, PUBLISHED BY THE 2ND`
	`RESPONDENT` `IN` `RESPECT` `OF`
	`KANNANKUZHISSERI – PUTHENDAICHAL LIFT`
	`IRRIGATION PIPE EXTENSION WORK,`
	`1/2/2010` `PUBLISHED` `IN` `THE`
	`DESHABHIMANI DAILY.`
`EXHIBIT P3`	`TRUE PHOTOCOPY OF THE AGREEMENT`
	`EXECUTED BY THE PETITIONER AND THE`
	`2ND RESPONDENT IN RESPECT OF EXHIBIT` `P1 WORK.`
`EXHIBIT P4`	`TRUE PHOTOCOPY OF THE AGREEMENT`
	`EXECUTED BETWEEN THE PETITIONER AND`
	`THE 2ND RESPONDENT IN RESPECT OF`
	`EXHIBIT P2 WORK.`
`EXHIBIT P5`	`TRUE PHOTOCOPY OF LETTER DATED`
	`4/2/2010 ISSUED IN RESPECT OF EXHIBIT` `P1 WORK.`
`EXHIBIT P6`	`TRUE PHOTOCOPY OF THE LETTER DATED`
	`16/1/2012` `ISSUED` `BY` `THE` `2ND`
	`RESPONDENT,` `TOGETHER` `WITH` `THE`
	`ANNEXURE STATEMENT.`
`EXHIBIT P7`	`TRUE PHOTOCOPY OF JUDGMENT DATED`
	`27/1/2006` `IN` `WRIT` `APPEAL`
	`NO.1520/2005, HIGH COURT OF KERALA.`

¶93

RESPONDENT EXHIBITS : NIL

C.v.Abraham v. the District Panchayat

Case brief

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C.v.Abraham v. the District Panchayat

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