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2018 DIGILAW 531 (AP)

S. Nandi Reddy v. State of Andhra Pradesh Rep. by its Principal Secretary, Irrigation & CAD Department

2018-07-27

A.RAJASHEKER REDDY

body2018
ORDER : 1. This Review Petition is filed seeking review of order passed by this Court in W.P. No. 5977 of 2016 dated 14.12.2017, wherein this Court disposed of the Writ Petition filed by the review petitioner, with the following direction; 2. The respondents are directed to permit the petitioner to complete the subject works as expeditiously as possible, preferably within a period of two months. On petitioner failing to complete the works within the time stipulated, it is open for the respondents to take appropriate action in accordance with law. 3. This review petition is filed stating that he was entrusted with two civil works by the 2nd respondent-Chief Engineer (Projects) and he has commenced the said work in the 1st week of March, 2014 and incurred an amount of Rs.4,00,000/- approximately and that about 40% of the work has been completed. He submits that vide proceedings dated 14.10.2014, the 4th respondent-Executive Engineer extended the time for completion of subject works up to 31.12.2014. The respondents in their letters also agreed that the petitioner has completed 25% of the work, no payment is made for the work done by the petitioner. The petitioner is a small farmer and he sold one acre land out of his total land admeasuring Ac.5.00 on 01.04.2017 and made payments to the his creditors and also that he had loan to a tune of Rs.1,90,000/- from the State Bank on 13.02.2014 against jewellery of his wife and paying interest on the same. That there is a lot of difference in sanctioned notes SS rates for the year 2014-15 when compared with SSR rates in 2017-18 so also the labour charges for the year 2014 and at present and prayed to award Rs.4,00,000/- towards expenditure which was already incurred by him in completing 25% of the work i.e., towards improvement to Narvabandadari Ayakat Road of Sekriyal, katwa Canal under Cumbum Tank System and also to improvement to Modalladari, Ayakat Road of Sekriyal, Katwa Canal under Cumbum Tank System. 2. Counter affidavit is filed by the 3rd respondent denying the averments in the affidavit filed in support of the review petition stating that this petition is not maintainable under law. 2. Counter affidavit is filed by the 3rd respondent denying the averments in the affidavit filed in support of the review petition stating that this petition is not maintainable under law. That to review an order passed by this Court, the review petitioner has to satisfy that the order passed is a mistake or an error apparent on the face of the record or new evidence has been discovered and the same was not within his knowledge even after exercising due diligence, as such, he could not produce the same before this Court at the time of passing of order or he has shown some other sufficient reason to allow for review. Since the petitioner has not shown any one of the aforesaid grounds, this petition is liable to be dismissed on this ground alone. That the review petition is filed after 30 days of receipt of the order dated 14.12.2017, as such, the same is barred by limitation and that on this ground also, the same is liable to be dismissed. That on the complaint filed by the petitioner, the Hon’ble Lokayukta for the States of Andhra Pradesh and Telangana disposed of the same by order dated 22.01.2016 to approach competent civil court to redress his grievance. Without approaching the competent civil court, petitioner filed W.P. No. 5977 of 2016. It is stated that except dumping the material, he has not done any work and that it is the responsibility of the petitioner to take care of the material dumped and the respondents are not responsible for the loss of material. That as he has not done any work at the site, no payments can be made to him and that the petitioner has not filed any document to show that he has executed a particular work. That the APSS Rules does not permit a contractor to execute a particular work according to the current SSR deviating the original Standard Specific Rates. It is stated that only at the fault of the petitioner, the alleged work has not been completed even after extension of time. It is stated that bifurcation of State has nothing to do with the present case. It is stated that this Court has no jurisdiction to grant the prayer for modification of order dated 14.12.2017 in WP No. 5977 of 2016 by awarding Rs.4,00,000/- as compensation to the work done. It is stated that bifurcation of State has nothing to do with the present case. It is stated that this Court has no jurisdiction to grant the prayer for modification of order dated 14.12.2017 in WP No. 5977 of 2016 by awarding Rs.4,00,000/- as compensation to the work done. That if the petitioner aggrieved by the order of this Court dated 14.12.2017, he may challenge the same by preferring appeal before the Hon’ble Division Bench or approach a competent civil court for redressal of his grievance and sought for dismissal of the petition. 3. Reply affidavit is filed by the petitioner reiterating the averments in the affidavit filed in support of the Review Petition and denied the averments in the counter affidavit filed by the 3rd respondent stating that Clause 60 of A.P. Standard Specifications is not applicable to the present case, inasmuch as the costs of two works awarded to the petitioner is only Rs.5 lakhs each. It is stated that the respondents have failed to give administrative sanction enabling the petitioner to complete the work, as such, he could not complete the work within the time stipulated by this Court. 4. Heard Party-in-Person and learned Government Pleader for Irrigation appearing for respondents and they advanced their arguments basing on the averments in the affidavits filed in support of their respective claims. 5. In this case, it is to be seen that this Court disposed of W.P. No. 5977 of 2016 on 14.12.2017 directing the respondents to permit the petitioner to complete the subject works as expeditiously as possible, preferably within a period of two months and on failure of the petitioner to complete the works within the time stipulated, it is open for the respondents to take appropriate action in accordance with law. 6. Admittedly, after receipt of copy of order in the writ petition, petitioner made representation to the respondents on 06.01.2018 seeking to grant all the administrative sanctions for the works entrusted to the petitioner so as to enable him to complete the works within the stipulated period. On 09.01.2018, the 5th respondent informed to the 4th respondent to give necessary permission to continue the subject works. On 09.01.2018, the 5th respondent informed to the 4th respondent to give necessary permission to continue the subject works. On 11.01.2018, the 4th respondent has addressed letter to the petitioner to submit proposals for extension of time through the 5th respondent to take further action and the petitioner submitted proposals for extension of time to complete the work to the 5th respondent. Subsequently, the 4th respondent has forwarded the communication dated 25.01.2018 to the 3rd respondent to give necessary permissions to carryout the works so also the 5th respondent forwarded the extension proposals to the 4th respondent on 21.02.2018 and the 4th respondent in turn informed to the 3rd respondent to grant extension of time to complete the work by the petitioner by communication dated 01.03.2018. But so far, time was not extended to the petitioner for completion of work. 7. Learned Government Pleader for Irrigation contends that the present petition is barred by limitation as the same is filed after lapse of 30 days of the order in the writ petition. In Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad v. State of A.P, AIR 1997 AP 179 the Hon’ble Full Bench of this Court held as follows : 7. Notwithstanding the law of Limitation or the Act not being made applicable to the proceedings under Arts.226 or 227 of the Constitution as per the settled law the doctrine of laches to deal with the delay in bringing such proceedings and the condonation has been operating the field of law in such situations. In State of Haryana v. Bhajanlal, 1992 Supp (1) SCC 335: ( AIR 1992 SC 604 ) and Babu v. Union of India, AIR 1979 SC 1713 , Ashok v. Collector, AIR 1980 SC 112 , Ramesh v. T.I.D, AIR 1980 SC 1200 (sic) and State of M.P. v. Nandlal, AIR 1987 SC 251 , the Supreme Court has authoritatively held that though there is no specific period of limitation, the High Court may refuse to exercise the extraordinary power where the petitioner is guilty of laches on undue delay for which there is no satisfactory explanation. What constitutes laches and what circumstances are sufficient to condone the same depends upon the facts and circumstances each case. What constitutes laches and what circumstances are sufficient to condone the same depends upon the facts and circumstances each case. The real test to determine delay is that the petitioner should come to the court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence of the petitioner. The test is not the physical running of time. Where the circumstances justify the conduct exists, the illegality which is manliest cannot be sustained on the sole ground of laches. (Dehri Rohtas Light Railway v. District Board, 1992 (92) SCC 598 : ( AIR 1993 SC 802 ). No hard and fast rule can be laid down in the matter and each case should be determined according to its circumstances. The law now settled is not restricted or expected to particular type of relief under Art.226 but the whole thing is left to the discretion of the Court as has been held by the Supreme Court in several precedents including Puran Singhs case ( AIR 1996 SC 1092 ). Therefore, we unhesitatingly conclude that the provisions of Limitation Act 1963 or the Rule of Limitation are not applicable to the proceedings under Art. 226 and 227 of the Constitution in dealing with the delay proceedings there under expect to borrow any such law or the provisions in addition to applying the doctrine of laches to exercise the discretion therein and further subject to the restrictions enumerated above. 4. In M.Jagadeeswara Rao and others v. the Divisional Forest Officer, Vizianagaram District, WA No. 881 of 2006 the Honble Division Bench of this Court, by considering aforesaid judgments, held as follows : In view of the above legal position, it deserves to be reiterated that the provisions of the Limitation Act are not applicable to a petition filed for review of an order passed by the High Court in exercise of power under Article 226 of the Constitution. We are not suggesting that in each and every case, the High Court is bound to entertain the application for review ignoring unexplained delay of any length, but are of the considered view that the application filed for review of order passed under Article 226 of the Constitution of India cannot be decided by invoking the provisions of Section 5 of the Act. 5. 5. As a sequel to the above, we hold that the application filed by the appellants under Section 5 of the Act, which was registered as WPMP No. 1899 of 2006 was wholly unnecessary. 6. We further hold that the learned Single Judge committed an error by refusing to entertain the application for review on the premise that the appellants have failed to show sufficient cause or explain 214 days delay in filing the review petition. 7. In view of principle laid down in the aforesaid judgments, the Limitation Act is not applicable to the proceedings under Article 226 of the Constitution of India. But, however, this Court can examine whether there are any latches in approaching the court and also that no hard and fast rule can be laid down in the matter and each case should be determined according to its circumstances. The power exercised by this Court under Article 226 of the Constitution of India is plenary in nature and it cannot be controlled by any provisions of the Code. In the aforesaid case, there was delay of 214 days in filing the review petition therein. In the instant case order was passed in W.P No. 5977 of 2016 on 14.12.2017 and even as per the learned Government Pleader, the review has to be filed on or before 13.01.2018, but the review petition is filed on 05.02.2018, i.e., in less than 20 days, present review petition is filed by the petitioner, as such, there are no latches on the part of the petitioner in approaching this Court. Therefore, the contention of the learned Government Pleader for Irrigation that review petition is barred by limitation, cannot be accepted. 8. It is next contended by the learned Government Pleader for Irrigation that this Court cannot review its own order unless there is an error or mistake apparent on the face of record, as such; petitioner cannot claim the amount for the work done by him. He also submits that except dumping the material, he has not executed any work, much less 25% of the work. He also submits that the petitioner did not file any document to show that he has executed a particular work. He also submits that except dumping the material, he has not executed any work, much less 25% of the work. He also submits that the petitioner did not file any document to show that he has executed a particular work. This Court, while disposing of the Writ Petition, extracted the relevant portion of the letter dated 26.05.2015 addressed by the 3rd respondent-Superintending Engineer to the 2nd respondent-Chief Engineer, stating that the petitioner has completed 25 per cent of work. 8. For better appreciation, the relevant portion is extracted hereunder : I submit that the Chief Engineer (Projects) Ongole has administratively sanctioned 6 Nos. of O&M works to Cumbum Tank vide Memo No. C (P) Ongole DD/ATO/ Correspondence on estimates/2015 of 1701.2014. Initially, the contractor stated the work 25% of work (Physical) was completed. On 2.6.2014 the A.P. State was bifurcated. A.P and Telangana Government have issued G.O note stating that to stop the works which were not grounded. 9. As per Executive Engineers report for the estimates technical sanction was accorded. The work was commenced and executed to a land by 25% work was carried out but no expenditure is incurred so far. Meanwhile, the farmers/ayacutdars of Ravipadu villagers approached through representation stating that the repairs are to be carried out immediately. 10. The agency has submitted a report to give permission to continue the O & M works, the same is herewith submitted for necessary action. 11. It is further submitted that agency is also willing to continue the O & M works with the same rates. The representation submitted by the contractor is herewith enclosed and necessary permission may kindly be accorded for continuing the works at an early date. 12. A perusal of the aforesaid letter goes to show that by the date of 26.05.2015, petitioner has completed 25% of the work entrusted to him and the same is not disputed by the respondents in their counter in the main writ petition, which aspect was not considered earlier. When they have not denied the same in the counter affidavit filed in the main writ petition, they cannot deny the same by way of counter in the review petition filed by the petitioner. When they have not denied the same in the counter affidavit filed in the main writ petition, they cannot deny the same by way of counter in the review petition filed by the petitioner. In view of above, this Court had made it clear that the petitioner had completed 25% of the work, as such, there is no error apparent on the face of record, as rightly contended by the learned Government Pleader for Irrigation, therefore, no interference is called for. 13. However, as already observed supra, in spite of direction from this Court to permit the petitioner to complete the work within a period of two months, till date no extension of time was granted to the petitioner for completion of the subject works. Since it is admitted by the respondents that the petitioner has completed 25% of the work, he is entitled to get the amount for the same, if Rules permit. 14. In view of above facts and circumstances, it is for the petitioner to make an application before the competent authority for release of the amount for 25% of the work completed by him and it is for the competent authority to consider the same and pass appropriate orders on the same, in accordance with law. 15. Accordingly, this Review Petition is disposed of modifying the order dated 14.12.2017 in W.P. No. 5977 of 2016.