CARMMEL FENCING COMPANY v. THE DIVISIONAL FOREST OFFICER

Sri.Bonny Benny – learned counsel for the petitioners, further submitted that his clients have already preferred Final Bills, namely Exts.P2 and P3, before the ‘Development Agency’; and that though they have been verified and the sums thereunder found entitled to them, payment has been illegally delayed; and therefore, that his clients are also entitled to interest at 12% per annum, from the date on which it became due, until it is paid. He thus prayed that the reliefs sought for in this writ petition be granted.

5. Pertinently, Sri.S.Chandrasekharan Nair - learned Standing Counsel for the 3rd respondent, began his arguments, relying upon a WP(C) NO. 25114 OF 2023 -4- counter affidavit filed by his client, wherein, they have averred that it is for them to decide on the payment of the contractor, as per Clause 12 read with Clause 17 of Ext.R3(a) Tripartie Agreement; and that, unless the defects pointed out by them are rectified to their satisfaction by the ‘Development Agency’, the payments cannot be released. He asserted that Exts.R3(b), R3(c) and R3(d) Observation Memos are still pending for answers from the ‘Development Agency’; and therefore, that his client will not release any amounts to them, for being paid to the contractor.

6. Pertinently, in response, a statement has been filed on behalf of the 1st respondent, by the learned Special Government Pleader for Forests - Sri.T.P.Sajan, averring that all the aforesaid Observation Memos have been replied; and that the defects noticed therein were WP(C) NO. 25114 OF 2023 -5- rectified by the petitioners themselves. He added that all necessary clarifications in this regard were submitted by his client as early as on 09.08.2021 before the 3rd respondent; and asserted that the Solar Fencing was found to be in good condition on that date; but that, subsequently, when the High Way was widened, the Fencing was again destroyed by the Authority/Agency entrusted with such work. He explained that it is, therefore, that the Technical Wing of the 3rd respondent again visited the site on 12.11.2021, when the Solar Fencing was found to be not working, and that the petitioners were again directed to rectify the defects, which they have not done until now – perhaps because they are not responsible for it being destroyed now. He, therefore, submitted that his client has no role to play in this controversy and that they will abide by any WP(C) NO. 25114 OF 2023 -6- direction to be issued by this Court.

7. When I evaluate and consider the afore rival submissions, it is evident that there are allegations thrown back and forth by the ‘KIIFB’ and the ‘Development Agency’, in which, the petitioner really has no part to play. The specific averments in the counter affidavit of the respective respondents are worth reading; for which purpose, first, the averments in paragraphs 4 and 5 of the ‘KIIFB’ are extracted as follows: “4. It is humbly submitted that the third respondent KIIFB reserves the power to decide on the payment to the contractor as per clause 12 read with clause 17 of Exhibit R3(a) tripartite agreement. It is submitted that unless the defects pointed out by the third respondent KIIFB are rectified to its satisfaction by the Special Purpose Vehicle, the payments cannot be released. The issuance of Exhibit P2 and Exhibit P3 is wholly illegal since it failed to consider the pendency of Exhibit R3(b.), WP(C) NO. 25114 OF 2023 -7- Exhibit R3(c). Exhibit R3(d.) and Exhibit R3(e) issued by the third respondent KIIFB pointing out the defects in the work done by the petitioners. It is also humbly submitted that Exhibit P2 and Exhibit P3 were issued without the concurrence of the third respondent KIIFB and is hence illegal and arbitrary.

5. It is humbly submitted that the Technical Inspection Wing of KIIPB has blocked the payment of the work manually because the Special Purpose Vehicle I.e. State Forest Development Agency has not furnished satisfactory replies to Exhibit R3(b), Exhibit R3(c) and Exhibit R3(d) observation memo, inspection report and show cause notice. The 3rd respondent reserves his right to file a detailed counter affidavit with documents if it warrants in the course of the writ petition.”

8. Next, the averments in the statement filed by the 1st respondent - Divisional Forest Officer (DFO), particularly paragraphs 5 and 6 thereof, are reproduced ut infra: “5. It is submitted that based on WP(C) NO. 25114 OF 2023 -8- the above direction, an estimate for an amount of Rs.4,12,000/- was sanctioned vide estimate No CCE 334/Orgl/17-18 of Chief Conservator of Forests. The work was tendered as per tender No. 2/2017-18, after publishing it in Kerala Government Gazette No. 46 dated 21.11.2017. The rate quoted by the petitioner was the lowest for this work which was 6.1 % below the estimate rate. Since, the petitioner produced all the necessary documents and the rate quoted by the petitioner was found reasonable, Chief Conservator of Forests, Southern Circle, Kollam vide order No QC2-276/17 dated 18.12.2017, accorded sanction to the Petitioner to execute the work of Solar Fencing starting from Technical High School Junction to Ambalakadavu in Anchal Range. Based on this order, an agreement was executed between the petitioner and the 1st Respondent Divisional Forest Officer, Punalur vide agreement No 14/17-18 dated

23.01.2018 and the work was started on

05.03.2018. The same was completed on

10.05.2018 and a bill for Rs.3,18,931/- was submitted to Chief Conservator of Forests, Southern Circle Kollam (designated as PMU) for approval. From the office of Chief Conservator of WP(C) NO. 25114 OF 2023 -9- Forests, Southern Circle Kollam, the bill and other documents were submitted to the Additional Principal Chief Conservator of Forests (E & TW), the SPV for the approval of the bills. The officials of Technical Inspection Wing of KIIFB inspected the site on 11.12.2018 and some observations had been raised. The defects were rectified and clarifications were resubmitted from this office vide PL 1- 142/2020 dated 09.08.2021. At that time, the Solar Fencing was in good working condition. But, during the widening of the road passes besides the fencing as part of Malayora Highway Project, some parts of the fence were damaged and become nonfunctional. During the next inspection of KIIFB Technical Wing on

12.11.2021, it was seen that the solar fencing was not in working condition. Hence, KIIFB again directed to rectify the defects noticed and submit the compliance report with proof through government. Even though SPV submitted the compliance report through Principal Secretary, Forest & Wildlife, as directed by KIIFB, the bill was not processed.

6. It is true that the contractor completed the work and bill and other WP(C) NO. 25114 OF 2023 -10- documents submitted to KIIFB. But the payment was not yet effected. Since the financing of the project was arranged by KIIFD, the bill payment has to be done by KIIFB. All the documents in this regard were already submitted to KIIFB. Since KIIFB is the only authority for releasing the payment. The 1st Respondent was not with holding any amount due to the petitioner as the 1 Respondent has no power or authority to release the payment of the petitioner. So the allegation of the petitioner that the first respondent is withholding the bill by malafide exercise of power is without any basis. No delay in submitting the bills were occurred from the 1st Respondent in this regard.”

9. A close reading of the afore two pleadings by the respective respondents would luculently disclose that, according to the ‘KIIFB’, the defects noticed by them in Exts.R3(b), R3(c) and R3(d) ‘Observation Memos’ had not been rectified by the ‘Development Agency’. However, the 1st respondent - DFO, has WP(C) NO. 25114 OF 2023 -11- a different story to say, as evident from his statement.

10. Since the ‘DFO’ is vehement in his submissions, that the petitioners had completed the work without any error and that the Solar Fencing was found to be in good working condition on 09.08.2021; which was, thereafter, destroyed on account of the widening of the High Way, thus leading to the Technical Wing of the ‘KIIFB’ again finding defects on 12.11.2021, I am certain that this cannot be a ‘defect’ that can be thrust against the petitioners.

11. This is more so because, the ‘DFO’, in the afore extracted paragraph 6 of his statement, unequivocally admits that the contractor had completed the work; and that his bills and documents were submitted to the ‘KIIFB’, however, which has not yet been honoured by them. WP(C) NO. 25114 OF 2023 -12-

12. In the afore circumstances, I am left without any doubt that the petitioners are entitled to relief. Resultantly, (a) This writ petition is allowed and the 3rd respondent – ‘KIIFB’ is directed to immediately favour the 4th respondent - ‘Development Agency’, with necessary funds to honour the bills of the petitioners. This shall be done as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. (b) On the 4th respondent – ‘Development Agency’ receiving the amounts as afore, it shall be disbursed to the petitioners without any avoidable delay, but within a period of one month thereafter. (c) In case the 3rd respondent fails to honour direction (a) above, the amounts will WP(C) NO. 25114 OF 2023 -13- carry interest at the rate of 8% per annum from the date on which it became due and until they are paid; while, if any delay is caused by the 4th respondent with respect to direction (b) above, such interest will become payable by them from the date on which the amounts are received by them and until paid to the petitioners. Sd/- DEVAN RAMACHANDRAN JUDGE WP(C) NO. 25114 OF 2023 -14- APPENDIX OF WP(C) 25114/2023 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 THE PHOTOSTAT COPY OF THE AGREEMENT NO.94/2017 -18 DATED 23.01.2018 THE PHOTOSTAT COPY OF THE SANCTIONED BILL ISSUED BY THE GOVERNMENT OF KERALA AS PER BILL REGISTER NO.14/2018-2019 ISSUED BY THE FOREST RANGE OFFICER PUNALUR THE PROCEDINGS OF THE CHIEF EXECUTIVE OFFICER PUNALUR FDA DIVISION AND DIVISIONAL FOREST OFFICER PUNALUR AS PER ORDER NO.PL1-140/2018 DATED 13.08.2021 RESPONDENT EXHIBITS EXHIBIT R3(A) THE TRUE COPY OF TRIPARTITE AGREEMENT NO. 06/2017 DATED 03/04/2018 ENTERED INTO BETWEEN THE SPECIAL PURPOSE VEHICLE. EXHIBIT R3(B) THE TRUE COPY OF THE SAID OBSERVATION MEMO NO. FOR 001-01-TIW- INSP-01 DATED 24/01/2019 EXHIBIT R3(C) THE TRUE COPY OF THE SAID INSPECTION REPORT NO. FOR 001-01-TIW-INSP-01 DATED 02/04/2020. EXHIBIT R3(D) THE TRUE COPY OF THE SAID SHOW CAUSE LETTER DATED 7/06/2023 EXHIBIT R3(E) THE TRUE COPY OF THE SAID LETTER DATED 1/07/2023 .