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2017 DIGILAW 384 (KER)

BADMINTON CLUB, RANNY REPRESENTED BY ITS PRESIDENT GEORGE ABRAHAM KACHANANTHU HOUSE v. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT

2017-02-22

DEVAN RAMACHANDRAN

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JUDGMENT : The petitioner claims to be a society registered under the Provisions of the Travancore-Cohin Litrary, Scientific and Charitable Societies Registration Act, 1955. They claim that they are affiliated to the State Youth Welfare Board and also that they are recognized by the District Sports Council. According to them, they are engaged in training students in Badminton and swimming. Their Registration Certificate is produced as Ext.P1. 2. The petitioner says that the District Panchayat had a project under the aegis of a scheme, for the purpose of training students both in the general category and who are members of Scheduled Casts and Scheduled Tribes, in swimming. According to the petitioner, they had entered into two agreements with the third respondent, the Deputy Director of Education, for the purpose of implementing, conducting and concluding training to students as aforementioned in swimming. Petitioner avers that as per the terms of Ext.P4 and P5, which are the agreements in question, the entire responsibility of identifying the students, of providing them swimming attire, of affording them nutritional food and of training was cast upon them and that they were expected to complete the project and report to them. 3. The petitioner asserts that in furtherance of their responsibilities, vested on them by the terms of this agreement, they had identified 500 students through various schools, based on the list provided to by them and that they had trained those students and completed the project well within time. The petitioner, therefore, preferred Ext.P10 which according to them, is the final bill for the amounts expended by them and as was eligible to them under the terms of agreement before the third respondent, who however, did not consider the same or pass any orders thereon. The petitioner, therefore, has approached this Court by filing this writ petition praying that directions be issued to the respondents to pay them the amounts eligible as per the terms of the project and Exts. P4 and P5 agreements. 2. I have heard the learned counsel for the petitioner Sri. Jacob. P. Alex, learned Standing Counsel for the second respondent and the learned Government Pleader appearing for respondents 1 and 3. 3. P4 and P5 agreements. 2. I have heard the learned counsel for the petitioner Sri. Jacob. P. Alex, learned Standing Counsel for the second respondent and the learned Government Pleader appearing for respondents 1 and 3. 3. I notice that the entire gamut of disputations in this case has its genesis in the fact, that while the petitioner was in the process of implementing the project in terms of Exts.P4 and P5, he was notified by Ext.P6 letter of the third respondent not to continue with the project for the reason that it would not be possible to train 500 students within the financial year 2015-16 and that it would be difficult to obtain amounts under a bill for that relevant year. The said letter, of course also refers to certain objections that have been raised against the petitioner but does not say what exactly are those objections. On a reading of Ext.P6, it however becomes obvious that the real and primary reason why the petitioner was asked not to continue with this project was because it would be practically not possible to make payment to him in the relevant financial year namely 2015-16. 4. I see that a counter affidavit has been filed on behalf of the Panchayat and on behalf of the third respondent. The third respondent has taken a stand that under the terms the project, the petitioner should have obtain specific orders from the authorities before commencing the training of the students. It is also stated in the counter affidavit that the petitioner did not make available the details of the students whom he had trained and that none of the authorities had authorized the continuation of the training without a formal order for its implementation. The third respondent maintains that as per the existing norms, after the execution of the agreement a further proceedings ought to have been issued for its implementation and that no such proceedings having been issued, the petitioner commenced training irregularly and without sanction of law. 5. Learned Counsel for the Panchayat submits, in terms of the counter affidavit file on their behalf that the petitioner did not select the students under the project in terms of the agreements or in terms of the requirements of the project, but that he had made such selection on his own unilaterally, without having obtained a sanction of the Panchayat. Learned Counsel for the Panchayat submits, in terms of the counter affidavit file on their behalf that the petitioner did not select the students under the project in terms of the agreements or in terms of the requirements of the project, but that he had made such selection on his own unilaterally, without having obtained a sanction of the Panchayat. They, therefore, say that since the petitioner did not provide a list of beneficiaries of the project to the Panchayat, the project is to be treated as irregular and without authority. The second respondent also insinuates in the counter affidavit that, according to their information, the petitioner has not implemented the project nor has he conducted training as has been alleged by them. It is also their case that no monitoring has taken place in connection with the conduct of the said project and that they do not have any amounts in their custody, even if the petitioner is entitled to be paid now, since the financial year is now complete and over. 6. Learned Counsel for the petitioner refutes all these contentions on the basis of certain documents that has been produced on record. He asserts that Exts.P2, P4 and P5 agreements do not stipulate any of the pre-requisites that respondents are now claiming to be part of the project and according to him, the agreement merely says that it is the responsibility of the respondent to complete the project and report to the Authority. He also says that the contents in Ext.P6 is completely illogical because, even as per the terms of agreement, the petitioner has time till April, 2016 to complete the project and that, therefore, the reference in Ext.P6 that no payments could be possible after the completion of the financial year namely 2015-16 is completely without logical foundations. He reiterates that the respondents not having contested Ext.P4 and P5 to be in any manner irregular, they are bound by its specific terms that they are liable to make payment under its terms. The petitioner has also produced a list of students, as Ext.P13 and he maintains with vehemence that the said list of students have been selected from the lists of students provided by the schools, which action of his is strictly and properly in terms of the agreement. 7. The petitioner has also produced a list of students, as Ext.P13 and he maintains with vehemence that the said list of students have been selected from the lists of students provided by the schools, which action of his is strictly and properly in terms of the agreement. 7. From the conspectus of all the pleadings on record, the materials available and the submissions made at the Bar, I am certain that this case presents several disputed questions of fact s remain unresolved even now, in spite of all the pleadings on record. It does not require much of a restatement that this Court while acting under Article 226 of the Constitution of India is jurisdictionally constrained from entering into or delving upon any enquiry or adjudication of facts especially when they are disputed and this will best be left to the authorities, who have the necessary competence to do so. I cannot see a better authority to consider all these issues than the third respondent herein. I say this because there is no other authority on the party array other than the third respondent, who possibly can have some competence to speak on all these. This is also because Ext.P10 final bill has been presented by the petitioner before the said Authority. For all these reasons, I think, the third respondent should now consider the case of the petitioner as also the contentions raised by the respondents herein while considering whether the petitioner can be granted the benefits claimed by him under Exts.P4 and P5 and under the final bill presented by him as Ext.P10 and all connected documents filed therein. I am of the firm view that this is the only manner in which a resolution to the disputes raised in this case can even be attempted. 8. I notice that the third respondent's counter affidavit in this case disspells all the contentions and therefore, a consideration of petitioner's final bill will have to be done by him dehors his contentions in these proceedings and without being influenced by the statements contained therein. I say this because the third respondent has a duty to consider the claim of the petitioner dispassionately and in terms of law based on the documents and materials on record and I direct that all the statements in the counter filed be viewed as a preliminary view of his in this issue. I say this because the third respondent has a duty to consider the claim of the petitioner dispassionately and in terms of law based on the documents and materials on record and I direct that all the statements in the counter filed be viewed as a preliminary view of his in this issue. He should also bear in mind that this Court had permitted the petitioner to complete the project, albeit, at his own risk, by order dated 8.4.2016. No doubt, this Court had made it clear that the petitioner would get no equity from such an order but the fact that he has completed the project, thereby bringing some benefit to the students under the training, should also be a valid factor that the third respondent must keep in mind while considering the final bill of the petitioner. I am not saying for a moment that the petitioner should be given the benefit to which he is not legally entitled to but it is also equally important that he be not denied the benefit, if he is otherwise entitled to and eligible for, merely on technical reasons relating to commencement of project, inauguration etc. 9. Learned counsel for the petitioner at this point says that the view of the third respondent may be occluded because he has already issued Ext.P6 order. I am sure that the third respondent rise to the occasion noticing my observations as above and not being guided in any manner by Ext.P6. In any event, I make it clear that any consideration of Ext.P10 final bill shall be without reference to anything that is contained in Ext.P6. 10. In such circumstances, I direct the third respondent to take up Ext.P10 final bill of the petitioner along with all the documents and materials placed along with it by the petitioner and consider the same after affording an opportunity of being heard to the petitioner and the secretary of the second respondent. This exercise shall be completed by the third respondent as expeditiously as possible but not later than four months from the date of receipt of a copy of this judgment. The writ petition is thus ordered. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs.