SABU SEBASTIAN v. ASSISTANT ENGINEER

BY ADVS. SRI.K.S.ARUN KUMAR, SC W.P.(C) No.40465/22 -:2:- SMT. K.AMMINIKUTTY SR. GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.11.2023, THE COURT ON 03.01.2024 DELIVERED THE FOLLOWING: W.P.(C) No.40465/22 -:3:- BECHU KURIAN THOMAS, J. -------------------------------- W.P.(C) No.40465 of 2022 --------------------------------- Dated this the 3rd day of January, 2024 JUDGMENT The writ petition is filed seeking to quash Ext.P8 stop memo and also to make good the cost incurred by the petitioner for the execution of work under Ext.P2 tender.

A tender was invited by the first respondent on 03-04-2022 for the construction of the work titled ‘Puthuppally Food Processing Unit’ to be completed within 12 months. The project was part of the National Rural Urban Mission (NRUM). Petitioner submitted his bid, and as per Ext.P3 dated 25-05-2022, he was informed that the contract is awarded to him. Thereafter, an agreement was executed on 06-06-2022 for the construction of the food processing unit.

While the petitioner was carrying on the construction activities, by Ext.P8 letter dated 29-07-2022, the first respondent directed the petitioner to stop all further works pursuant to the agreement. The reason stated in Ext.P8 is that as per the communication dated 21-07-2022 from the fourth respondent, new works after 31-03-2022 ought not to be commenced, and that amounts will not be paid for such works. W.P.(C) No.40465/22 -:4:-

Immediately on receipt of Ext.P8, stop memo, petitioner issued a letter dated 01-09-2022 pointing out that he had already commenced the work pursuant to the agreement and had finished item Nos.I, II, III, and XVII scheduled to the agreement completely and had also finished 20% of the work in item No.XII. It was further mentioned that petitioner had already unloaded M-sand and broken stone at the site, and therefore, he may be permitted to continue the construction as per the agreement.

By another communication dated 18-07-2022, the Panchayat had informed the first respondent that since information has not been received from the Central Government regarding the extension of the term of projects under the National Rural Urban Mission Scheme, the bills, either in part or in full of ongoing projects, ought to be prepared and submitted. It is in the above circumstances that the petitioner has approached this Court seeking directions to permit him to continue the work as well as to pay the cost incurred by him till the stop memo was issued.

Respondents 1 and 2 have filed a counter affidavit pointing out that the work has been directed to be stopped with the intention of avoiding any additional loss to the petitioner in the event the Central Government, which is the funding agency, stops funding the project. It was further pointed out that since the extension of time is a policy of the Central Government, it is beyond the control of the first and second respondents. However, it was pointed out that the Panchayat has already W.P.(C) No.40465/22 -:5:- prepared a valuation for the work which was done by the petitioner till date, and if the fourth respondent is willing to sanction the fund, the Panchayat is ready to withdraw the stop memo and allow the petitioner to finish the work. It was further stated that in respect of another work, a savings of Rs.50,92,330/- has been returned from the Water Authority in another project, which amount is kept idle in the Grama Panchayat account and if the fourth respondent permits, the Panchayat is ready to utilise the said fund for completing the project. The first respondent has also stated that a request has already been made to the fourth respondent for sanctioning the above.

A counter affidavit has also been filed by the fourth respondent - the Rural Development Commissioner stating that the funds for the National Rurban Mission are shared by the Central Government and the State Government in the ratio of 60:40 and that the fund for the scheme is kept in the State nodal account and allocated to the clusters as per demands. It is also stated that the funds are allocated as and when they receive the fund request. According to the fourth respondent on 18-07-2022, the State Government received a communication from the Government of India bearing DO No. K-11011/01/2020-Rurban stating that funds shall be released only for ongoing projects as critical gap funds, and the same should be capped as per the committed liabilities as on 31-03-2022, and no funds shall be released for new projects undertaken W.P.(C) No.40465/22 -:6:- after 31-03-2022. It was further stated that this information was communicated to the clusters by letter dated 21-07-2022. Fourth respondent further averred that since funds will be provided only for the works that started before 31-03-2022 and since the agreement for this particular work was executed on 13-06-2022, it is not possible to give the CGF fund to the contractor through the MIS platform. It is also stated that, since the work is not considered as an ongoing work and the Government of India has given permission only to make payments for works which are ongoing, it is not possible to make payment for the work from the National Rurban Mission.

I have heard Smt. Sumathy Dandapani, the learned Senior Counsel, Sri. K.S. Arun Kumar, the learned Standing Counsel for respondents 1 and 2 and Smt. Amminikutty, the learned Senior Government Pleader.

Admittedly, bids were invited by the respondents for the work ‘Puthuppally Food Processing Unit’ on 03-04-2022, as is evident from Ext.P2. The invitation was published by the respondents and the petitioner had no role in the invitation. Pursuant to the said invitation, petitioner submitted his tender and was awarded the work and the agreement was also executed on 06-06-2022. Petitioner had even commenced his construction activities thereafter. Even then, respondents had no case that the work will not be funded by the Central Government. W.P.(C) No.40465/22 -:7:- After the work commenced, the first respondent issued Ext.P8 stop memo on 29-07-2022. The work was directed to be stopped not because of any default on the part of the petitioner but because the Government had not agreed to fund the projects after 31-03-2022. These are all internal matters and the petitioner had no role in it. The default is undoubtedly not that of the petitioner, and he cannot be subjected to any prejudice.

During the course of arguments, it was submitted by the respondents that whatever work carried out by the petitioner had been demolished subsequent to Ext.P8 stop memo. In such circumstances, it may not be conducive to quash Ext.P8 stop memo and permit the petitioner to continue the work.

However, it is admitted in the counter affidavit of the first respondent that the Panchayat has already assessed the quantum of work carried out by the petitioner.

Since the petitioner cannot be blamed for issuing Ext.P8, and the default is entirely that of the respondents in issuing an invitation for tender after 31-03-2022 and also executing the agreement and thereafter permitting the petitioner to commence work, under no circumstances can any liability befall the petitioner. It is also evident from the affidavit of the first respondent that funds are available with the Panchayat to fund almost the entire project itself, provided the fourth respondent gives appropriate sanction. However, since the project is no longer feasible, it is not legally W.P.(C) No.40465/22 -:8:- proper to permit the petitioner to continue with the work. However, the respondents are liable to pay the cost incurred by the petitioner for the work already carried out, till the issuance of the stop memo.