Manoj Kumar N. T. , S/o. Thankappan K. P. v. State of Kerala Represented By Its Principal Secretary To Government, Department of Finance, Govt. Secretariat, Thiruvananthapuram
2019-10-16
DEVAN RAMACHANDRAN
body2019
DigiLaw.ai
JUDGMENT : 1. These writ petitions call focus to a very peculiar problem faced by the various Local Self Government Institutions with respect to funding for their public projects and activities. 2. Since all the three cases involve similar circumstances and since the prayers made are also analogous to each other, I deem it appropriate to hear all of them together. 3. For the sake of convenience, I deem to take W.P.(C) No.40452/2018 as the lead case and all references to persons and documents in this judgment, unless otherwise specified, will be as appearing in this writ petition. 4. The petitioner in W.P.(C) No.40452/2018 is a Panchayat; while the petitioners in W.P.(C) Nos.21365/2018 and 16587/2019 are members of Idukki District Panchayat. 5. The petitioners allege that with respect to funding of projects being made by the various Local Self Government Institutions, the Government had initially issued Ext.P1 order, which was in force till March, 2018, whereby the respective Institutions were authorised to meet all expenditure of spill-over works against the current year allotment. They say that this position was changed through Ext.P2 Government Order, which was issued on 17.03.2018, wherein such spill-over was prohibited. 6. The petitioners say that various Local Self Government Institutions approached the Government and consequently, Ext.P3 order was issued on 20.03.2018, withdrawing Ext.P2 and virtually restoring the position as was available when Ext.P1 was in force. They allege that, however, the Government has now issued Ext.P4 order -bearing No.D.A.1/439/2018/LSGD dated 02.05.2018 -whereby they have classified the categories of projects into two -firstly, those in which work had already begun as on 01.04.2018 and secondly, those in which bills have been presented before the Treasury by the end of March, 2018. They say that the order specifies that with respect to the first category, only those projects in which work had begun as on 01.04.2018 will be allowed to use spill-over funds for completion; while the latter category includes projects, the bills of which are placed in the queue for payment including life mission projects. 7. The petitioners say that with respect to all other projects, the rigor, as originally brought in by the Government through Ext.P2, has been now reintroduced.
7. The petitioners say that with respect to all other projects, the rigor, as originally brought in by the Government through Ext.P2, has been now reintroduced. The petitioners add that, as is clear from paragraph 3 of Ext.P4, all other projects are denied the benefit of spill-over and they are required to finish the work therein from the funds available for the year 2018-19 and no other. The petitioners contend that Ext.P4 virtually operates retrospectively since it was issued only on 02.05.2019, but refers to projects relating to 2017-18. They, therefore, say that the impact of Ext.P4 is such that the public projects already begun by the various Local Self Government Institutions would suffer, since they would not find enough funding -they being prevented from using the spill-over funds for the current year. They, therefore, pray that Ext.P4 to that extent be set aside. 8. The learned Government Pleader appearing on behalf of the official respondents, submits that Ext.P4 order has been issued by the Government to ensure that all the Local Self Government Institutions act diligently and vigilantly so as to ensure that projects of the current year are completed in the said year itself and that it is not delayed unduly and without reason. He says that the intention behind Ext.P4, being to ensure good governance and speedy implementation of projects, this Court may not interdict any of its directions. On the question of retrospectivity, the learned Government Pleader submits that the current year project began on 01.04.2018, whereas Ext.P4 was issued on 02.05.2018 within a month's time. He says, therefore, that the petitioners cannot claim that it operates retrospectively or that it causes any prejudice. 9. Even when I hear the learned Government Pleader on the afore lines, it is without doubt that the position that was brought in by the Government on 17.03.2018, through Ext.P2, was withdrawn through Ext.P3, presumably because of the problems faced by the Local Self Government Institutions in implementation of the prohibitions against spill-over of funds for the projects concerned.
9. Even when I hear the learned Government Pleader on the afore lines, it is without doubt that the position that was brought in by the Government on 17.03.2018, through Ext.P2, was withdrawn through Ext.P3, presumably because of the problems faced by the Local Self Government Institutions in implementation of the prohibitions against spill-over of funds for the projects concerned. However, in Ext.P4, the same effect has been caused, by mandating that only those works whose implementation began by of 1st April, 2018 would get the benefit of the spill over funds and nothing else, thus to mean that those projects which were continuing in the years 2017-18 but not completed by 30th of March, 2018 would suffer because of lack of funds. Though the intention behind this is certainly laudable, it is justified for the Panchayat to feel aggrieved since, at least for the year 2018-19, this is going to cause them great prejudice, since they were not aware that the benefit of spillover funds from the year 2017-18 would not be applicable for the year 2018-19. In that sense, I find favour with the submissions of the petitioners that Ext.P4 operates almost retrospectively, since it hits the Local Self Government Institutions who were not aware that such spill-over funding will not be available for the next year and therefore, had not completed the works on a war-footing on or before 31.03.2018. 10. I am, therefore, of the view that this is a matter that should engage the attention of the competent Secretary of the Government immediately, at least with respect to 2018-19, because as far as 2019-20 is concerned, all the Local Self Government Institutions have been sufficiently warned and they are aware that the projects will have to be completed in that current year itself. Resultantly, I order these writ petitions and direct the concerned Secretary of the Government of Kerala to immediately hear the petitioners herein and then take a decision as to whether any exemption can be granted to the petitioners, on proper applications being made by them, to relax the rigor of Ext.P4 with respect to specific projects for the year 2017-18, so that public interest will not suffer for want of necessary funding.
The afore exercise shall be completed by the Secretary of the Government as expeditiously as is possible but not later than two months from the date on which such applications are made by the petitioners and the resultant order shall be communicated to them without any further delay thereafter. Needless to say, depending upon the decision to be taken by the Government in this regard, all further action shall be completed by the concerned Authority with respect to the funding of the projects thereafter. It goes without saying that I have not set aside Ext.P4 nor have I interdicted its operation but only that the Secretary has been directed to consider whether its impact can be relaxed in suitable circumstances subject to the Panchayat convincing the Authority, the requirement of such relaxation. I further add that the above directions have been made, since, as is clear from the facts in W.P.(C) No.40452/2018, the project in question was cleared by the Panchayat Committee only on 24.03.2018 and therefore, it would have been not possible for them to finish it in the same year. These are instances that the Secretary of the Government must keep in mind, while issuing the resultant order.