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2002 DIGILAW 581 (KER)

The Executive Engineer v. Kerala Lokayuktha

2002-09-03

K.A.ABDUL GAFOOR

body2002
Judgment :- Exts.P5 and P7 are under challenge in this original petition at the instance of three officers of the State against whom a petition was filed by the 2nd respondent, before the 1st respondent, the Kerala lokayukta. The 2nd respondent was the contractor. He had undertaken the work of resurfacing the road from Guest House junction to Thycaud. The work had to be completed in January 2000. The bitumen had to be supplied by the department. There were other contractors with similar conditions. They were given bitumen, but the 2nd respondent was not. Thus he was discriminated. Therefore, he submitted a petition before Lokayukta. It was taken as complaint No.333/01. Before the Lokayukta it was agreed that required quantity of bitumen would be given to him within two months and that the 2nd respondent would complete the work within another two months thereafter. Bitumen had been supplied as agreed to. Work was also completed. Accordingly the matter was disposed of by the Lokayukta as per Ext.P5 with the direction that “payment for the work at the existing rate will be made on before the 1st week of November”. Bill had been submitted and the same was passed on 22-12-2001. But the payment was not made. The 2nd respondent moved the Lokayukta again to take action against petitioners herein. It is in the above circumstances, Ext.P7 has been passed. Having found that the amount had not been paid, the Lokayukta ordered as follows: "The amount should have been paid in November, 2001. Time was fixed at the request of the department. No reason can be advanced now for not complying with the order. If payment is not made within one month from today, action may have to be taken under section 19 or 14 of the Lokayukta Act" It is in the above circumstances the petitioners are aggrieved. 2. Of course, taking from the date of Ext.P5 there is some delay in filing this petition. But petitioners are aggrieved because of the order in Ext.P7. If its date is taken as the commencement of period of limitation, it cannot be taken that there is any latches on the part of the petitioners. O.P. has been filed on 12-6-2002. Therefore, the contention of the 2nd respondent that there is latches on the part of petitioners cannot be accepted. 3. If its date is taken as the commencement of period of limitation, it cannot be taken that there is any latches on the part of the petitioners. O.P. has been filed on 12-6-2002. Therefore, the contention of the 2nd respondent that there is latches on the part of petitioners cannot be accepted. 3. When the original petition is itself maintainable, necessarily, contention of the petitioners to be considered. It is contended by the petitioners that they are bound by Ext.P6 decision of the Division Bench whereby this court had directed to keep priority in the matter of payment to contractors. Later these cases were referred to Full Bench. As per the Full Bench decision it was directed that the payment to contractors shall be made in the order of priority. If the payment is effected to the 2nd respondent, as directed by the Lokayukta the petitioners will be found guilty of violating the direction given by the Full Bench of this court. Petitioners are unable to comply with the direction for payment. 4. When there is a direction from this court to follow the priority, which has been brought to the notice of the Lokayukta, as is revealed by para 15 in Ext.P4, it was not proper to issue a direction to effect payment before a particular date. That will result in overlooking the priority of others and violation or judgment of this court. Lokayukta cannot issue any direction which will have the effect violating the direction of this court. Therefore, the direction contained in Ext.P7 that “payment for the work at the existing rate will be made on before first week of November” cannot be sustained. The directions issued by this court shall prevail over the directions issued by other authorities except the Apex court. The contentions of the respondents that Ext.P7 direction is based on the agreement by the parties also cannot be accepted because none can come to an agreement to violate the directions of this court and cannot court a decision from any authority in such terms. Consequently Ext.P7 is so quashed. O.P. is allowed. 5. It is made clear that priority assigned to the 2nd respondent in the matter of payment shall be followed strictly and payment shall be effected on its basis. Consequently Ext.P7 is so quashed. O.P. is allowed. 5. It is made clear that priority assigned to the 2nd respondent in the matter of payment shall be followed strictly and payment shall be effected on its basis. This decision shall not stand in the way of the 2nd respondent to sue against the petitioners if they have committed any violation of the agreement or conditions of tender which resulted in damages.