Allowed

M.K.Joseph v. State of Kerala

Kerala HC13 Feb 2024WP(C)/781/2023

Case brief

AI extract

What is this about?

In this writ petition, a registered contractor sought the release of Rs.1,50,000 beneficiary contribution owed to him for completed irrigation work, despite the respondent's claim of motor defects occurring later in 2019. The High Court directed the release of funds within one month, imposing interest for delay, and ordered the consideration of the petitioner's security deposit claim.

What did the court decide?

Direction to release Rs.1,50,000 within one month of receipt of the judgment copy, failing which interest at 8% p.a. shall be payable from the due date; authority also directed to consider the securit

M.K.Joseph Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 13^TH DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945

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WP(C) NO. 781 OF 2023

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PETITIONER:

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M.K.JOSEPH, AGED 70 YEARS S/O.KURIAKOSE, MANIVELIL HOUSE, INCHAKUNDU.P.O, THRISSUR DISTRICT, PIN - 680312

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BY ADVS. LINDONS C.DAVIS E.U.DHANYA SWATHY A.P.

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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2 CHIEF ENGINEER (LSGD) OFFICE OF THE CHIEF ENGINEER (LOCAL SELF GOVERNMENT DEPARTMENT) UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695033

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3 ASSISTANT EXECUTIVE ENGINEER (LSGD), OLLUKKARA BLOCK OFFICE, OLLUKARA BLOCK PANCHAYAT. SREYAS NAGAR, OLLUKKARA, THRISSUR, PIN - 680655

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4 BLOCK DEVELOPMENT OFFICER OLLUKKARA BLOCK OFFICE, OLLUKARA BLOCK PANCHAYAT. SREYAS NAGAR, OLLUKKARA, THRISSUR, PIN - 680655

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SRI. P.S.APPU, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

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13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 781 OF 2023

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JUDGMENT

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The petitioner is stated to be a registered contractor, who undertook and completed the work for “Moorkkanikkara Lift Irrigation” on behalf of Nadathara Grama Panchayat. He says that he had completed the work satisfactorily, which is manifest from the fact that his bill was allowed to a sum of Rs.6,17,463/-; but that, out of it, an amount of Rs.1,50,000/- — being the contribution of the beneficiaries — was refused to be released to him, even though the competent Engineer had authorised such payment as early as on 30.01.2018, as clear from Ext.P3. He asserts that the refusal of the payment of the “Beneficiary Contribution” to him, even though more than six years have now elapsed, is illegal and unlawful; and thus prays that the respondents be directed to honour the same within a time frame to be fixed by this Court.

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In response to the afore submissions of the petitioner, as made by his learned counsel - Smt.Shamila N.S., the learned Government Pleader – Sri.P.S.Appu, made submissions relying upon a counter affidavit filed on behalf of the fourth respondent, wherein, it is averred that, even though Ext.P3 authorised the

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WP(C) NO. 781 OF 2023

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payment of the “Beneficiary Contribution” to the petitioner on 30.01.2018, it was withheld because “later in 2019, when they start to use the motor, the winding of the motor has been burned and the motor became inactive” (sic). He submitted that, therefore, unless the petitioner rectifies the motor, the “Beneficiary Contribution” cannot be released to him.

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In response, Smt.Shamila N.S. - learned counsel for the petitioner, submitted that a reply affidavit has been filed by her client, wherein, it has been specifically averred that no intimation of the defect in the motor had ever been brought to the notice of her client; and that in any event, after Ext.P3 authorised the payment of the “Beneficiary Contribution” to her client as early as on 30.01.2018, the factum of the motor having burned – even if it is true – sometime in the year 2019, could not have been used against him because, by then, the guarantee and the defect liability period had been over. He submitted that, therefore, even if such an event had happened — without admitting it in any manner — no liability could have been imposed against her client without proper procedure and that this is impermissible merely on the basis of certain assertions in the counter pleadings of the parties. She thus reiteratingly

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WP(C) NO. 781 OF 2023

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prayed that the reliefs sought for in this writ petition be granted.

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I must say upfront that there is some force in the afore submissions of Smt.Shamila N.S. because, as rightly argued by her, the petitioner was authorised to be paid the full amount against his bill, including the “Beneficiary Contribution” by the Assistant Executive Engineer, as early as on 30.01.2018, through Ext.P3.

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The counter affidavit of the fourth respondent, very interestingly, avers as under, as to why the sum in question was not released to him:

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“Later in 2019, when they start to use the motor, the winding of the motor has been burnt and the motor became inactive.”

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The affidavit then goes on to aver that the third respondent has found that the motor was of low quality and that the petitioner did not rectify the same, even though he may have had the benefit of warranty from the manufacturer. It then asserts that it is, therefore, that the “Beneficiary Contribution” has been withheld.

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It must, however, be borne in mind that, even going by

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WP(C) NO. 781 OF 2023

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Ext.P3, the petitioner had completed his work much before 30.01.2018. The averments in the counter affidavit merely say that the motor burned sometime in the year 2019, without even mentioning the month in which it so happened — even if it is assumed to be true. The respondents then allege that the motor is of low quality, though it is common knowledge that the winding of the motor can get burned for reasons that are much different, including its improper use and such other.

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Obviously, a proper enquiry ought to have been done, if such an incident had taken place; but there is nothing of such available on record except an averment that the “third respondent found that the contractor placed the low quality motor”. When the petitioner has controverted further assertions in the counter affidavit, to the effect that he was notified the defect of the motor, through his reply affidavit; and when it remains uncontroverted by the respondents, I cannot see how they can now hold on to the “Beneficiary Contribution”, to which, the petitioner is entitled. Of course, if, through a proper enquiry, subject to laws of limitation and as per due procedure, any liability is to be found against the petitioner in future, the respondents can certainly recover the same as per law.

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WP(C) NO. 781 OF 2023

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In the afore circumstances, with the afore liberty being reserved to the competent Authorities, I allow this writ petition and direct them to release the “Beneficiary Contribution” of Rs.1,50,000/- to the petitioner, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment, failing which, it will carry interest at the rate of 8% p.a. from the date on which it became due until it is paid.

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After I dictated this part of the judgment, the learned counsel for the petitioner submitted that, in addition to the afore amount, the “Security Deposit” for the work, to a sum of Rs.82,500/-, has also not been released by the respondents. This, of course, is a matter that the third respondent must consider after hearing the petitioner; and therefore, in addition to the afore directions, I order the said Authority to do so and to culminate it in an appropriate proceedings and necessary action within the afore time frame, so that the eligible amounts can be released to him, along with the above mentioned amount, as per law.

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Sd/- DEVAN RAMACHANDRAN JUDGE

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stu

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WP(C) NO. 781 OF 2023

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APPENDIX OF WP(C) 781/2023

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PETITIONER EXHIBITS

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Exhibit P1	A COPY OF THE BOOK OF THE WO	RELEVANT PAGE OF MEASUREMENT RK OF THE PETITIONER
Exhibit P2	A COPY OF THE 01.10.2018 OF BEFORE THE 3RD	REPRESENTATION DATED THE PETITIONER SUBMITTED RESPONDENT
Exhibit P3	A COPY OF THE NO.A5/AEE/LSGD ISSUED BY THE RESPONDENT	LETTER /OLK/2017 DATED 30.01.2018 3RD RESPONDENT TO THE 4TH
Exhibit P4	A COPY OF THE 23.12.2022	REPRESENTATION DATED

M.K.Joseph v. State of Kerala

Case brief

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M.K.Joseph v. State of Kerala

Case brief

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