JOY Vs. SUPERINTENDING ENGINEER

JUDGEMENT

(1.) The prayer in the Original Petition is to quash Ext. P9 revenue recovery notice issued under S.34 of the Revenue Recovery Act and to restrain the second and 3rd respondents, namely, the Deputy Tahsildar and Village Officer from proceeding with the collection of the amount shown in Ext. P9. The amount shown in Ext. P9 is Rs.3,32,550/-, and it is stated as due because of the re-arrangement of the work of construction of causeway at Perumthodu which the petitioner was bound to execute according to the agreement.

(2.) The petitioner is a P.W.D. Contractor. Pursuant to the tender notice dated 10-8-1980 issued by the first respondent inviting tenders for execution of the work of causeway Perumthode of the Idamalayar project, the petitioner submitted his tender which was accepted on 16-10-1980. Agreement was executed on 12-11-1980 and in terms of the agreement the work should be completed within 12 months of the date of handing over the site to the contractor. The rate of progress also is shown in the agreement in default of which a penalty of Rs.50/- per day or 1% of the work remained to be done will be imposed. The rate of progress shown is 25% of the work to be completed within 3 months, 50% within six months, 75% within 9 months and 100% within 12 months of the handing over of the site. According to the petitioner there was delay in handing over the site and the petitioner, after partial handing over the site commenced the work in January 1981. But soon after commencement of the work labour trouble started. Therefore the work could not be completed. While the petitioner was prepared to resume the work the Assistant Engineer on 24-9-1982 directed the petitioner to attend the work of taking final measurement from which the petitioner understood that the work has been terminated by the Department. The Executive Engineer, thereafter, on 19-7-1983 intimated the petitioner that due to the re-arrangement of the work an amount of Rs.3,32,550/-is lost to the Government and the petitioner has to pay the said sum within 7 days failing which revenue recovery proceedings would be launched. The contention of the petitioner was that the respondent did not issue notice intimating the petitioner that he was proposing to terminate the contract and further that he is proposing to retender the remaining work. The amount demanded by Ext. P9 is said to be therefore illegal. Ext. P9 stated to be illegal on the ground that in the agreement executed under Art.229(1) there is no provision authorising the first respondent to collect the amount by way of revenue recovery proceedings. The contract also did not contain provision authorising the respondent to complete the contract by re-arrangement at the cost of the petitioner. There is also the contention that the respondent can recover only the damage actually suffered.

(3.) In the counter affidavit filed on behalf of the first respondent it is stated that the site for the causeway portion was handed over to the petitioner on 8-1-1981 and acknowledgment in the prescribed form also obtained by the concerned Assistant Engineer in this regard. If the petitioner had any complaint regarding the handing over of the site and Clause.58 of the MDSS he could have backed out from the contract with immunity after 60 days. Under the agreement 25% of the work has to be completed within 3 months of the handing over the site. But the petitioner achieved only 9% progress. Even though the entire portion of the site required for the whole work was not handed over to the petitioner on 8-1-1981 the site handed over was sufficient to achieve 80% of the quantum of work. Only the land for approach road had not been handed over on 8-1-1981 because that had to be got transferred from the Forest Department. The respondents also taken prompt steps to transfer the land for approach road also. The respondents, taking a lenient view, issued a series of notices dated 28-7-1981,19-9-1981 and 30-11-1981 to resume the work, but the petitioner was not inclined to do the work. The work has to be completed on 8-1-1982. Therefore on 24-2-1982 also notice was sent. Ultimately on 4-5-1982 a final notice was sent to the petitioner by registered post requiring him to resume the work failing which, it was stated that the contract would be terminated at his risk and cost Even for this notice there was no response and therefore the first respondent had to terminate the contract by proceedings dated 28-6-1982. This proceedings were sent to the petitioner by registered post with acknowledgment due but it was returned undelivered by the Post and Telegraph Department stating that the addressee was continuously absenting himself from the station. The Department tried its best to serve the notice on the petitioner and in his absence to serve on his relatives; but the relatives also refused to receive the order. The petitioner was directed to attend taking final measurement on 24-9-1982, 6-10-1982, 22-4-1983, 16-6-1983 and ultimately by Ext. P8 dated 19-7-1983. The petitioner was informed that due to re-arrangement of the work an amount of Rs.3,32,550/- is to be recovered from the petitioner as loss sustained by the Government. How this amount is arrived at is given in Para.7 of the counter affidavit of the first respondent as under: