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2019 DIGILAW 982 (GAU)

Chandan Deka v. State of Assam

2019-09-03

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. R. Goswami, learned counsel for the petitioner and Mr. J. Chutia, learned standing counsel for the respondent KAAC. 2. The petitioner in both the writ petitions are common. In response to the NIT, the petitioner submitted his tender in the office of the Executive Engineer, Karbi Anglong Division, Irrigation, Diphu. The same was duly accepted and work orders were issued to the petitioner as follows: (i) Work order No. ACEI (ZONE-IV) Tech/2/TAC/2007-08/3-A dated 31.08.2007 for approximate tender value of Rs. 2,18,19,360/- in respect of work 2225 C.O. Umtili I/S for construction of Head works and its appurtenant works. (ii) Work order No. ACEI(ZONE-IV) Tech/Tac/2007-08/10-A dated 13.02.2008 for an approximate tender value of Rs. 2,67,18,573/- only in respect of work 22250 C.O. Patharinala I/S construction of Headwork including diversion work. 3. The Umtili I/S for construction of Headwork is the subject matter of WP (C) No. 1070/2016 and Patharinala I/S for construction of Headwork is the subject matter of WP (C) No. 1192/2016. 4. The petitioner had as contended completed the entire works within stipulated time and being satisfied by the authority issued the works completion certificate dated 14.02.2011. Thereafter, as against the Umtili I/S for construction of Headwork, etc. out of Rs. 2,18,19,360/- part payment of Rs. 1,10,00,000/- and out of Rs. 2,67,18,573/- an amount of Rs. 1,40,00,000/- was paid to the petitioner for the Patharinal I/S for construction of Headwork respectively. As against the former work the petitioner is entitled for the balance amount of Rs. 1,08,18,603/- and for the later work the balance amount of Rs. 1,27,18,573 are yet to be paid to the petitioner. WP (C) No. 4737/2011 and WP (C) No. 4832/2011 were filed which were disposed of as per term of the decision rendered in Tamsher Ali and Others vs. State of Assam and Others, (2008) 4 GLT 1 and directed the respondents to make the payment. The said orders of this court were submitted to the Principal Secretary, Karbi Anglong Autonomous District Council, Diphu Karbi Anglong and the said Principal Secretary directed vide letter under Memo No. KAAC/LC/Irri-8/2011 dated 30.05.2012 to the Executive Engineer, Karbi Anglong Division, Irrigation, Diphu, the respondent No. 5 to submit proposal as per the order of this court regarding the outstanding liability to the petitioner. However, there was no action following which two contempt cases against the respondents as well as the Principal Secretary of KAADC were filed. 5. During the pendency of the said cases the respondent authority undertook to pay some amount to the petitioner by the end of March, 2015 whereafter this court closed the contempt cases granting liberty to file fresh contempt cases in the event of default on the part of the respondents. Though the respondents made the promises to pay the petitioner the same were not acted upon and as such the present writ petitions are filed for a direction to the respondents to comply with the earlier order dated 18.11.2011 passed in the aforesaid two writ petitions and the order dated 02.02.2012 in the contempt cases and to pay the outstanding amount with interest to the petitioner. The respondent No. 5, the Executive Engineer, Karbi Anglong Division, Irrigation, Diphu filed affidavit-in- opposition thereby taking the stand that the petitioner as per the direction of this court passed in earlier writ petitions failed to register in the concerned Division as per the guideline mentioned in the judgment in Tamsher Ali and Others vs. State of Assam and Others (supra). The petitioner was asked to accompany the departmental officials to visit the site of works executed by him for joint verification but he did not response. The Assistant Executive Engineer, Hamren Sub-division vide letter dated 06.05.2016 requested the petitioner to accompany him to join the field verification of the works done by the petitioner but the petitioner did not come for joining the field verification of the works executed by him. In between PIL No. 107/2015 was filed before this Court and the Hon'ble Division Bench of this Court constituted a High Power Technical Committee to visit the site in order to examine the matter and submit opinion in respect of financial irregularities if any committed in the execution of the irrigation scheme. It is further stated that Rs. 5,00,000/- was paid to the petitioner. 6. The petitioner filed his additional affidavit-in-reply on 06.11.2017 bringing on record that the PIL No. 107/201 was disposed of after accepting the report of the High Power Technical Committee and by holding that there was no justification to proceed further with the PIL. 7. I have heard the learned counsel. The background of the claim made by the petitioner is referred hereinabove. 7. I have heard the learned counsel. The background of the claim made by the petitioner is referred hereinabove. The respondent No. 5 filed his additional affidavit dated 23.07.2019 and placed on record the joint verification report dated 25.09.2018 carried out jointly by the petitioner and the Assistant Executive Engineer, Hamren Sub-division, Irrigation and the findings of the report are reproduced herein-below: "Verification report 1. Patharinala I/S (Const. of head works including diversion works) - During verification it is found that the right abutment wall is damaged and need to be reconstruction. The scheme is found in non functioning stage. The head works and other appurtetant works need to carried out major repartment and improvement works for functioning the scheme for supply of irrigation water to the beneficiaries. The present status of the scheme is abandoned. 2. Umtili I/S (Const. of head works with appurtetant works) - This scheme is found in Non functioning stage. The head works of different items like up steam glacies, down steam glacies, core wall, abutment walls etc are found damaged. To functioning the scheme the head work and other appurtetant works need to be major repairment and improvement works, the present status of the scheme is abandoned." 8. On the other hand the petitioner filed his affidavit-in-reply as against the joint verification and put on record some photographs in support of his contention that the works were completed against which the Executive Engineer issued the work completion certificate. 9. From the joint verification report it is apparent that the petitioner undertook the said contractual work. However, it is found that the schemes were found at non-functioning stage. The work requires major repair and improvement for functioning of the scheme for supply of the irrigated water to the beneficiaries. As per the present status both the schemes are abandoned. On the other hand the work completion certificate is also not disputed by the respondents. Part payment is also admitted. Under such circumstance, in my opinion, it would be proper to dispose of both these writ petitions by a common order thereby directing the respondents to take note of the joint verification report and on that basis a fresh assessment be made and thereafter necessary payment shall be made to the petitioner within a period not beyond four months from the date of receipt of the copy of this order. 10. Mr. 10. Mr. Sahewalla made the submission that works were completed long back and the outstanding amount ought to have been released once the completion certificates were issued. The petitioner suffered much pecuniary loss owing to the default on the part of the respondents and for the said default of respondents the petitioner cannot be allowed to suffer. In order to compensate the said loss interest on the outstanding amount is required to be directed to be paid to the petitioner. Mr. Chutia raised strong objection against the submission of Mr. Sahewalla on the ground that if at all the petitioner suffered loss the reasons cannot be attributed to the respondents only inasmuch as the joint verification itself indicates the works were not completed nor the same can be made operational only for non completion of the works by the petitioner. 11. I have considered the submissions of the counsel and I am not inclined to accept the submission of Mr. Sahewalla and let the issue of claim for interest remains open and the petitioner may approach the appropriate forum, if so advised. 12. Accordingly, this writ petitions are disposed of. No cost.