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2013 DIGILAW 491 (KER)

Abdul Azeez v. State of Kerala

2013-06-17

P.R.RAMACHANDRA MENON

body2013
JUDGMENT : P.R. Ramachandra Menon, J. The issues involved in these cases are almost similar and hence dealt with together. By virtue of the statutory mandate under Section 15 and such other provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, mulcting the liability upon the Local Authorities to protect and preserve the river banks, it was decided to construct a permanent blockade to the concerned 'Kadavus' in the fourth respondent Panchayat in the respective writ petitions. The construction was sought to be effected, as proposed by the District Collector, who is the Chairman of the River Management Fund. 2. The proposal made by the District Collector was considered by the High Level committee as well, and after examining the project proposal and recommendation in this regard, the Government sanctioned the same by Ext. P1 Government Order bearing No. G.O. (Ms) No. 429/09/RD dated 30-10-2009, whereby as many as 50 Kadavus' in the concerned Panchayat/Municipality were identified, where permanent construction was sought to be effected. The total estimate was fixed as Rs.3,09,75,000/- and it was ordered to raise funds and satisfy the liability to the concerned contractors on a 50:50 basis. The first half of the fund is to be procured from the River Management Fund and the remaining half by the concerned Grama Panchayath/Municipality, where the 'Kadavu' is situated. 3. Pursuant to Ext. P1 order and the tender notified in this regard, the petitioner participated in the bid and came out successful. It was accordingly, that Ext. P4 agreement came to be executed. Subsequently, the sites were handed over and construction was undertaken and completed by the petitioner within time and the same was handed over. After the completion of work as above, Ext. P7 bill/s was/were submitted by the petitioner before the Irrigation Department. After processing the same and on satisfaction as to the completion of work, the same was recommended to the District Collector. After considering the same, the District Collector passed 50% of the amount liable to be paid, from the River Management Fund, in terms of Ext. P1 Government Order and the petitioner has received the said amount. The dispute is with regard to the balance 50% payable by the concerned local authority. 4. After considering the same, the District Collector passed 50% of the amount liable to be paid, from the River Management Fund, in terms of Ext. P1 Government Order and the petitioner has received the said amount. The dispute is with regard to the balance 50% payable by the concerned local authority. 4. The case of the petitioner is that, the petitioner has been running from pillar to post and when the District Collector was approached, it was stated that, as per the terms of Ext. P1 Government Order, the balance 50% is to be paid by the local authority, while the fourth respondent/local authority submits that they do not have the requisite funds to satisfy the amount and that the full amount is to be disbursed from the River Management Fund. 5. Despite the completion of service of notice, no counter affidavit has been filed in W.P.(C)No. 985/2013 by the concerned respondents, including the Local Authority. In W.P.(C)No. 957/2013, the second respondent has filed a counter affidavit as to the satisfaction of 50% of the due amount, and pointing out that the balance is to be satisfied by the concerned local authority. The third respondent has filed a separate counter affidavit without any factual dispute as to the case projected by the petitioner, but for pointing out the liability of the Local Authority in satisfying the balance amount. The fourth respondent local authority has filed a counter affidavit stating that on receipt of Ext. R4(a) communication dated 15.1.2010 issued by the second respondent, the matter was considered by the Panchayat Committee and the second respondent was let known vide Ext. R4(b) that the fourth respondent does not have the requisite funds to satisfy the balance 50% of the amount due to the petitioner and requesting that the entire amount be paid by the second respondent, by utilising the River Management Fund. This was sought to be effected as per Ext. R4 (c) as well. 6. The learned counsel for the Panchayath submits that the Panchayath is not a beneficiary because of the construction as above, for the reason that, no sand extraction is being effected from the concerned 'Kadavus', as a result of which no amount is generated towards the funds of the Panchayath on this account. This Court is not at all impressed with the said argument. This Court is not at all impressed with the said argument. The liability to construct permanent blockade at the 'Kadavu' and thereby protect the river and river banks cannot be based on the returns to be raised by the Panchayath/local authority concerned. The very purpose of the enactment, as discernible from the preamble of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, is as follows : "Preamble - WHEREAS it has come to the notice of the Government that indiscriminate and uncontrolled removal of sand from the rivers cause large scale river bank sliding and loss of property; AND WHEREAS large scale dredging of river sand also disturb the biophysical environment system of the river in different degrees; AND WHEREAS due to the executive regulatory orders in force, complaints have been received regarding the hardship to the employees engaged in construction works; AND WHEREAS, in the public interest, it is expedient to provide for regulatory measures for the protection of river banks and removal of sand from rivers; BE it enacted in the Fifty-second year of the Republic of India as follows :-" 7. The liability of the local authority to maintain the river banks is more discernible from Section 15 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, which reads as follows : "S.15. Obligation of the Local Authorities to maintain the Kadavu or river banks in safe condition - (1) Every Local Authority in the State having Kadavu or river bank for sand removal shall maintain such Kadavu or river bank in a safe condition and protect its bio-physical environment system by taking effective steps to control over bank sliding. (2) Every local authority shall erect concrete pillars at the Kadavu or river bank in such a way that no vehicle shall have direct access to the bank of the river. (3) The local authority shall establish a check post at each Kadavu or river bank and maintain proper account of the sand removed from the Kadavu. (4) Bamboo and "Attuvanchi" may be planted on the river bank with the help of Forest Department to control river bank sliding." 8. (3) The local authority shall establish a check post at each Kadavu or river bank and maintain proper account of the sand removed from the Kadavu. (4) Bamboo and "Attuvanchi" may be planted on the river bank with the help of Forest Department to control river bank sliding." 8. On considering the scheme of the statute as well, this Court finds that the duty cast upon the Panchayat/Local Authority to take necessary step to protect the river banks does not depend upon the returns to be obtained by the Local Authority. As such, the said contention is repelled as devoid of any merit. 9. With regard to the course and events, the fact remains that the construction was sought to be effected on the basis of the proposal mooted by the second respondent, which was recommended by the High level committee, finally leading to Ext. P7 sanction issued by the first respondent/State. There is no case that the petitioner has not completed the construction and it was accordingly, that the recommendation was forwarded by the Irrigation Department, leading to sanctioning of 50% by the District Collector. If at all there is any dispute for the concerned Local Authority with regard to the contents of Ext. P4, it is a matter which is to be discussed and solved between the concerned parties, for which no blame can be put on the shoulders of the petitioner in any manner. 10. The terms of Ext. P1 are explicit. Sub Clauses 1 to 6 of Ext. P1 given in paragraphs 2 and 3 are extracted below, for convenience of reference: "2. The High Level Committee in its meeting held on 1st October 2009 scrutinised the above project proposals and recommended Government for according administrative sanction with certain conditions. In the circumstances, Government are pleased to accord administrative sanction for the above Protection works at 50 Kadavus mentioned above in Malappuram District for an amount of Rs.3,09,75,000/- (Rupees Three Crores nine lakh seventy five thousand only) subject to the following terms and conditions : (i) The cost of the construction work at each Kadavu will be shared on 50:50 basis respective Grama Panchayaths/Municipalities and the River Management Fund. (ii) The upkeep and proper maintenance of the construction will be vested with the respective Secretaries of Grama Panchayaths/Municipalities vide Section 17(M) of the 'Rules 2002'. (ii) The upkeep and proper maintenance of the construction will be vested with the respective Secretaries of Grama Panchayaths/Municipalities vide Section 17(M) of the 'Rules 2002'. In the event of any damage to the above structures the respective Secretaries of Grama Panchayaths/Municipalities will be held responsible and the District Collector will close down the Kadavu, immediately. (iii) The implementation of the work rest with the District Collector. (iv) The work should be completed within two years from the date of this order. (v) The Convenor, DLEC will ensure that project proposal is prepared as per prevailing schedule of rate of the PWD and measurements are correct and bona fide before according technical sanction. (vi) The District Collector will ensure that the 50% contribution for each kadavu is remitted to the RMF by the respective LSGI, failing which no 'P' form should be issued to the LSGI. 3. The District Collector, Malappuram will periodically inspect the work and ensure that it is done aesthetically and all the conditions stipuated in Rule 19 & 20 of Kerala Protection of River Banks and Regulation of Removal Sand Rules 2002 is observed scrupulously and authorised to make payment of Rs.1,54,87,500/- ( Rupees one crore fifty four lakh eighty seven thousand five hundred only) from the River Management Fund on satisfactory completion of the work." In the above circumstances, this Court finds that the petitioner is entitled to get the balance amount. The source from where the due amount is to be gathered is not the concern of the petitioner. Accordingly, there will be a direction to the respondents to take all necessary steps to see that the balance amount covered by Ext. P7 bills is disbursed to the concerned petitioner forthwith, at any rate within 'six weeks' from the date of receipt of a copy of this judgment, failing which, interest shall be paid to the petitioner @ 9% per annum till the date of satisfaction. It is also made clear that the first and second respondents are free to take appropriate steps to get the due share from the fourth respondent Panchayath/Local Authority in terms of Ext. P1, in view of the duty cast upon the Local Authority to protect the river banks as mentioned herein before, and also in view of the fact that Ext. P1 Government Order has not been subjected to challenge by the Panchayath/Local Authority till date. P1, in view of the duty cast upon the Local Authority to protect the river banks as mentioned herein before, and also in view of the fact that Ext. P1 Government Order has not been subjected to challenge by the Panchayath/Local Authority till date. Both the writ petitions are allowed accordingly. No cost.