Kerala High CourtThiruvananthapuram Development ... vs G. Anilkumar on 10 October, 2018Author:Devan RamachandranBench:Devan RamachandranIN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940

                      WP(C).No. 37683 of 2009



PETITIONER:


              THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY
              (TRIDA), JAYA MANSION, VAZHUTHACAUD, SASTHAMANGALAM
              P.O., THIRUVANANTHAPURAM, REP. BY ITS SECRETARY.

              BY ADV. SRI.K.A.JALEEL, SC., TRIDA



RESPONDENTS:
       1     G. ANILKUMAR
             S/O.GOVINDAN NAIR, PEROORKONAM, KANDALA P.O.,
             KATTAKKADA, THIRUVANANTHAPURAM.

      2       THE HON'BLE KERALA LOK AYUKTHA
              REP. BY ITS REGISTRAR, OFFICE OF THE KERALA LOK
              AYUKTHA, LEGISLATURE COMPLEX, VIKAS BHAVAN P.O.,
              THIRUVANANTHAPURAM-33.

              BY ADVS.
              SRI.GEORGE CHERIAN
              SRI.RAJESH CHERIAN


THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No. 37683 of 2009

                                          2




                                     JUDGMENTThe       Thiruvananthapuram         Development            Authority    (herein

after referred to as 'TRIDA') has filed this writ petition

impugning Ext.P3 order of the Upa Lok Ayukta, whereby an

amount of Rs.1,41,786/- has been directed to be paid to the

1st respondent herein.2.        The pleadings on record              would indicate that the 1 st

respondent       was    a    contractor     engaged        to    undertake    certain

works     by    the    TRIDA   and   that      he    had    raised       claims   for

amounts as being            "Tender Excess", which was, however, denied

by the TRIDA.           The 1st respondent therefore approached this

Court     by     filing     W.P.(C)No.9288/2006            and     a   judgment   was

delivered by this Court directing the TRIDA to consider this

claim, pursuant to which an order was issued by the TRIDA,

dated     12.06.2006,        informing        the    petitioner        that   'tender

excess' cannot be paid for articles purchased on market rates

and for        articles supplied by Department.3.        The 1st respondent thereupon appears to have invoked

the jurisdiction of the learned Upa Lok Ayukta, by filing a

complaint,        numbered as 1177/2008, which was allowed throughWP(C).No. 37683 of 20093Ext.P3     order.    The    petitioner-TRIDA          submits     that    since     the

amounts were        not admitted      by them         and since         it is   their

specific     case    that    such    amounts         are   not    due    to   the    1 st

respondent,     the    learned       Upa       Lok   Ayukta      would    obtain     no

jurisdiction to consider these issues, in view of Section

8(1)(c) and particularly, the 2nd schedule of theLok Ayukta

Act, 1999.4. I have       heard Sri.K.A           Jaleel, learned           counsel for

TRIDA and the learned counsel appearing for 1st respondent.5.    On an assessment of the pleadings on record and the

submissions made before me, I am certainly persuaded to a

conclusion that Ext.P3 order of the learned Upa Lok Ayukta

cannot obtain forensic support. This is because, the learned

Upa Lok Ayukta could have spoken on the entitlement of the 1 st

respondent, only if the amounts had been conceded by the

TRIDA.     On the contrary, this is a                case where, not only does

the TRIDA     not admit       to the       liability but          contests it        by

saying that the        1st respondent is not entitled                   to a 'tender

excess'     under     the    terms    of       the    contract.     These,         being

essentially questions of fact and the disputations between

the   parties       being   completely          factual    in     nature,     it    wasWP(C).No. 37683 of 20094ineluctably impermissible            for the learned Upa Lok Ayukta to

have delved into it and to have affirmatively issued an order

akin to Ext.P3.6. Going by any stretch of jurisdiction, the learned Upa

Lok Ayukta or for that matter, even this Court, while it acts

underArticle 226of the Constitution of India, could have

entered    into    this     controversy,         save   if    the       facts     been

admitted and not otherwise.                  Since concedely there is no

admission by the TRIDA regarding their liability to the 1st

respondent to his entitlement for his "tender excess" as per

the contract between them,the order issued by the learned Upa

Lok Ayukta, namely, Ext.P3, cannot find sustenance in law.

Further, it is ineffable why the respondent, after having

approached       this     Court    in   W.P.(C)No.9288/2006             and      after

obtaining a judgment from this Court, had, thereafter, moved

the   learned     Upa     Lok     Ayuktha        against     the    order       issued

pursuant    to    the     directions        of   this   Court      in    the    afore

mentioned judgment, without impugning it before this Court.

I am compelled to an adverse inference but am choosing not to

say anything further.7.   When I made my mind clear as afore at the Bar, theWP(C).No. 37683 of 20095learned counsel appearing for the 1st respondent pleaded that

his client may not be shut off from all remedies, because

according to him, it was possible for his client to have

invoked the jurisdiction of a Civil Court. His apprehension

is that such remedy would also be now hit on account of the

laws of limitation.8.    On     a consideration of the afore submissions of the

learned counsel for the 1st respondent, I am of the view that

the 1st respondent can always approach the competent Civil

Court with a         properly constituted suit seeking to recover

the amount that he claims as 'tender excess' from the TRIDA

and that he can invoke the jurisdiction of said Court by an

application underSection 14of the Limitation Act, to treat

the period during which           the proceedings before the learned

Upa   Lok    Ayuktha   and   this     writ   petition   had   been   pending

before      this   Court,    as   a    period   when    he    was    bonafide

prosecuting an incorrect remedy.9.    I am certain that if such recourse is taken by the

respondent before the Civil Court, it will be considered by

the said Court in terms of law, after taking into account all

germane and relevant factors. I leave the afore liberty toWP(C).No. 37683 of 20096the respondent and consequently, I order this writ petition,

quashing Ext.P3 order of the learned    Upa Lok Ayukta.This writ petition is thus ordered.Sd/-DEVAN RAMACHANDRAN

rp-10.10                                     JUDGEWP(C).No. 37683 of 20097APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1                TRUE COPY OF THE COMPLAINT DATED 16.10.2008
                          IN COMPLAINT NO.1177 OF 2008 FILED BY THE1ST RESPONDENT BEFORE THE 2ND RESPONDENT

EXHIBIT P2                TRUE COPY OF THE WRITTEN STATEMENT DATED
                          24.02.2009 FILED BY THE PETITIONER BEFORE
                          THE 2ND RESPONDENT

EXHIBIT P3                TRUE COPY OF THE ORDER DATED 3.11.2009 IN
                          COMPLAINT NO.1177 OF 2008 PASSED BY THE 2ND
                          RESPONDENT