JINCY AJI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the President of Kizhakkambalam Grama Panchayath which is governed by an association viz. Twenty-20, which is not affiliated to any political party. The 6th respondent who is a PWD Contractor had been undertaking the work of urgent patch repairs on the existing PWD roads at different stretches within the area of the Panchayath. It is stated that Kizhakkambalam Grama Panchayath as per Ext.P2 resolution dated 28.11.2019 passed a resolution to make development projects in the Panchayath with Public Private Participation (PPP) model and to seek financial assistance of Twenty-20 Association for the same and also to seek support of people of the locality. The Twenty-20 Association as well as the people of the locality surrendered their land and provided funds in support of the decision taken by the Panchayath. The Vice President of the Panchayat as per Ext.P3 letter addressed the Executive Engineer the 2nd respondent requesting to permit their participation and complete the work of the road in PPP model, so that there will not be any additional expenditure for the PWD. It is stated that they had addressed the Assistant Engineer as well as the Assistant Executive Engineer offering their cooperation to develop the road. It is stated that as per Ext.P5 letter dated 30.04.2020 the Assistant Executive Engineer had addressed the Executive Engineer informing that the repair of the roads Chelakkulam-Pookkatupadi from Ch.2/600 to 5/600, urgent repairs to Thamarachal-Malayidamthuruth road ch.1/000 to 2/500, SLTF 2019-20, urgent patch repairs to Thamarachal - Malayidam thuruth road ch.2/550 to 3/500 and patch repairs to Chelakkulam- Pukkattupady ch.5/600 to 7/400 are included in the work for making the road motorable out of PWD funds to the tune of Rs.10 lakhs. Stating that several potholes had been developed in the road and that it would not be possible to complete the work of the road with the available funds allotted by PWD, he informed that the President of the Kizhakkambalam Grama Panchayat has come forward to undertake the work of road in BM and BC standard in accordance with PWD specification using the funds of Twenty-20. He requested for permission to complete the patch work with the PWD fund and thereafter to undertake the work of enhancing the standard of the road. But thereafter as per Ext.P7 letter dated 19.05.2020, the Asst.Engineer informed the President of the Panchayat that he had taken up the matter with Assistant Executive Engineer, as per his letter dated 11.03.2020 and therefore the works on the road which are not covered by the PWD schedule, need be undertaken only after sanction is obtained from PWD. It is stated that the work was thereupon stopped and petitioner informed the Chief Engineer about the same on 26.05.2020 that the work had been progressing so as to complete the same before the monsoon starts; but it was kept pending awaiting sanction from PWD. Thereafter the Assistant Executive Engineer as per Ext.P9 letter dated 08.06.2020 directed the Contractor that he shall not undertake any work which is not covered by the agreement executed by him except after getting permission from PWD. Pointing out that the work was almost completed and Government would not incur any additional expenditure for the additional work on the road and that the same was being constructed for the public good and stating that the work had to be stopped at a time when the tarring work alone is left, the petitioner has approached this Court seeking a direction to respondents 2 to 4 to grant them permission to tar the PWD roads mentioned above, as recommended by the 3rd respondent and to permit them to raise the standard of the road to international level. Relying on Ext.P10 interim order in WP(C) No.16137/2020 by which additional work on another road was permitted by this court, the petitioner submits that the work already undertaken by them, is liable to be permitted to be completed at least before starting of the next rainy season. It is stated that the said Panchayath has undertaken several other road works all over the Panchayth and enhanced the standard of the same with minimum cost. Producing Ext.P11 agreement, along with I.A.No.01/2020, executed by another contractor based on which this court had allowed widening of the road as per Ext.P10 judgment, the petitioner stated that the estimated cost by PWD for improvement of road in BM &BC standard for a stretch of 4 kms from Chainage 0/000 to 0/400 in Chembarakki-Pookattupadi road was Rs.2.5 crores whereas pursuant to Ext.P5 recommendation of Assistant Executive Engineer and the Panchayath resolutions, widening of the roads, drainage work, shifting of electric post, BM-BC tarring, etc were done under the PPP model for a total amount of Rs.1,46,00,000/-, when almost 70% work was over. . It was stated that the total expense would come to only around Rs.3,81,92,890/- and when almost 70% of the works were completed, the letter for stoppage of works was issued by the 4th respondent.

(2.) The Ex.Engineer has filed a statement on behalf of respondents 1 and 2, on 09.11.2020, stating that the Writ Petition at the instance of the petitioner is not maintainable, as she does not have the locus standi, that too with the Grama Panchayat, of which she is the President as a respondent. It is stated that Ext.P9 letter of the Asst.Executive Engineer directing to stop the work, was issued strictly in accordance with rules. It was stated that Kizhakkambalam Grama Panchayath in effect wants to take over the PWD road which is not covered by any of the provisions governed by any of the Acts or rules. It was stated that a Village Panchayth is not authorized to take over or to stake any claim over a State High Way or a Major District Road which are under the jurisdiction of PWD; under the Kerala Panchayat Raj Act, the Village Panchayat can have jurisdiction only over those roads which are specifically notified as of the Village Panchayats; the principle of distribution of powers with the Local Self Government and the State Government does not authorise a Grama Panchayat to take over or stake claim over a road which form part of PWD. It is stated that any work on the PWD road can be done only with the permission of PWD. It is also stated that there is no provision in the Kerala Panchayat Raj Act or Rules, for executing any work in PPP model; the Grama Panchayat has no authority to get the road widened obtaining funds from Twenty-20 or by PPP and the same is without the sanction of law and contrary to the provisions in the Panchayat Raj Act and petitioner cannot insist for permission for the same from PWD. It is further stated that as per Clause 2600 of PWD Manual, maintenance of the State High way and that Major District Roads is the responsibility of the PWD. However, it is stated that as per clause 1801.1.2 of the PWD manual, PWD can accept funds as deposit for the purpose of construction of roads. It is stated that on receipt of the request from the 5th respondent, the 2nd respondent had taken up the matter with the Chief Engineer (Roads) and the Chief Engineer was directed by the 2nd respondent to prepare an estimate for upgrading the roads as BM and BC roads, as per IRC Standards, based on which Annexure R2(c) estimate was prepared in accordance with IRC specifications and DSR 2016 cost index. It is stated that in order to ensure the standards, the ancillary works like construction of culverts, drains on either sides, covering slabs, etc. are also to be executed in addition to widening of existing road from 4.6mts to 5.5 meter. According to the respondents, there was no recommendation by any PWD official on the request of the petitioner; it was only forwarded to the higher officials. According to them, in case the Panchayat wants to upgrade the road to BM and BC standard, Panchayat can deposit the amount with PWD specifically for that purpose and PWD would execute the same ensuring the quality of work, in which Panchayat can also be involved. However it is stated that the claim of the Panchayat for undertaking the work cannot be allowed as it would be by usurping the powers of PWD. It was stated that the better agency for ensuring the quality of the road is PWD itself, which has the technical expertise. It is further stated that construction of a BM and BC road as per IRC standard involves shifting of utilities/providing provision for utilities both underneath on the road and construction involves further technical issues pertaining to its design, which the Panchayat would not be able to handle. According to the respondents, if the petitioner or the Panchayat are allowed to construct the road with the help of their funding organisation the same would have serious consequences.

(3.) The learned Government Pleader filed a statement stating that the work covered by Ext.P10 judgment was only for widening of the road. In the present case it is stated that a layer of 10 mm width and 15 cm thickness has to be provided in the entire area for profile correction which would require Rs.26,48,051/- per kilometre. Furnishing the rates for different works, it is stated that many of the items required for upgrading the road into IRC standard are not furnished by the petitioner.