Mantaz Ali v. The State of Assam and 4 Ors

ORDER

29.08.2024

¶1Heard Mr. A.K. Hussain, learned counsel for the petitioner. Also heard Ms. D. Jain, learned counsel appearing for the Water Resources Department, Government of Assam and Ms. A. Gayan, learned CGC appearing for the Ministry of Jal Shakti. Ms. R.M. Baruah, learned counsel appears for the Finance Department.

¶2The petitioner's case is that he is a registered 2nd class contractor with the Water Resources Department, Government of Assam. He was given work contracts under the Scheme "A/E Measures to Protect Bamundi Village and Its Adjoining Areas from the Erosion of River Brahmaputra."

¶3Though the petitioner had completed the work contracts and was paid a certain sum of money, the balance amount of Rs.4,45,146/- has not been paid to the petitioner.

¶4The petitioner's counsel submits that a direction may be issued to the respondents to pay to the petitioner the balance amount of Rs.4,45,146/-.

¶5Ms. D. Jain, learned counsel for the Water Resources Department submits Page No.# 3/8 that the Central Government share of the funds under the FMBAP Scheme is 90% and the share payable by State Government is 10%. However, the Central Government has not released the Central share in full till date. She submits that the petitioner is still to be paid the admitted amount of Rs.3,96,854/-

¶6However, Ms. A. Gayan, learned CGC has submitted letter dated

22.03.2022 issued by the Executive Engineer-II, office of the Chief Engineer-II, Brahmaputra Board, River Development and Ganga Rejuvenation, Department of Water Resources, Ministry of Jal Shakti and letter dated 09.01.2023 issued by the Chief Engineer-II, Brahmaputra Board, River Development and Ganga Rejuvenation, Department of Water Resources, Ministry of Jal Shakti, wherein the Ministry of Jal Shakti had requested clarifications from the Government of Assam against the Flood Management and Boarder Areas Programme (FMBAP) Scheme under the Water Resources Department, Government of Assam, for release of the balance Central share of the funds. The learned CGC submits that the State Government have not furnished the appropriate reply/clarifications to the Central Government till date. She submits that once the clarifications are made by the State Government, the Central funds would be released.

¶7I have heard the learned counsels for the parties.

¶8This Court, in a series of cases, the leading case being WP(C) 4734/2021 (Nazim Hussain -vs-The State of Assam and 8 others), while disposing of the similar matters, had passed the following direction, which are as follows:- "(1) Within 15 (fifteen) days from today, the concerned official of the State Government of Assam will communicate the supplementary budget passed in the last Page No.# 4/8 Assembly Session pertaining to the scheme to the competent authority of the Ministry of Jal Shakti, Government of India.

(2) Within 60 (sixty) days from the date of receipt of such communication, the Ministry of Jal Shakti to release the amount due under the schemes to the concerned Department of the Government of Assam.

(3) Upon receipt of the amount, bills of the writ petitioners shall be processed and cleared within a further period of 45 days"

¶9Para 4 and 5 of the affidavit filed on behalf of the respondent No.3, i.e., the Chief Engineer, Water Resources Department is to the effect that the admitted balance amount payable to the petitioner is Rs.3,96,854/-. As the Chief Engineer has admitted that the petitioner is liable to be paid Rs.3,96,854/-, the petitioner would have to be paid the admitted amount. The same however does not bar the petitioner from approaching the Civil Court, for making a claim against the amount not admitted by the Chief Engineer. Para 4 and 5 of the affidavit filed by the respondent No.3 is extracted hereinbelow, as follows:- "4. That before adverting to the reply of the aforesaid writ petition the deponent begs to raise preliminary objection regarding the maintainability of the writ petition on the ground of non-joinder of necessary party. In this regard the deponent begs to state that the two work orders was allotted to the contractor i.e. the petitioner against the scheme "AEM to protect Bamundi village and its adjoining area from the erosion of river Brahmaputra" under which some works have been awarded to the petitioner vide work orders no. 1. "SE/PPC/W/55/H/28 dated 21.04.2012 and 2. "GWD/Tech/NIT/H/10-11/3/119 dated 05.10.2012. It is pertinent to mention here that the said scheme is under FMP (Flood Management Programme) under XI Plan & the Head of Account is i) 4711-01-103-0120-977-13-99-SOPD-SS-GA-V (State Share) & ii) 4711-01-103-0120-977-13-99-SOPD-LS-Government of Assam,-V (Central Share). Out of the total estimated amount of the said scheme, 90% was supposed to be borne by the Government of India i.e. Ministry of the Jal Shakti. But the writ petitioner has filed the instant writ petition without making Ministry of the Jal Shakti, Page No.# 5/8 Government of India, as one of the party respondent in the writ petition and in the humble submission of the deponent the writ petition is liable to be dismissed on the ground of non-joinder of necessary party.

¶5That, the deponent begs to state that the outstanding balance to be paid to the petitioner is Rs. 3,96,854/- (Rupees Three Lakhs Ninty-six Thousand Eight Hundred Fifty-four) only. The petitioner was granted works vide work order no.

¶1"SE/PPC/W/55/H/28 dated 21.04.2012 amounting to Rs. 4,92,150/- (Rupees Four Lakhs Ninty-two Thousand One Hundred Fifty) only and 2. "GWD/Tech/NIT/H/10-11/3/119 dated 05.10.2012 amounting to Rs. 1,00,073/- (Rupees One Lakhs Seventy-three) only issued to the petitioner by the then Superintending Engineer Palasbari Town Protection, Water Resources Circle against the scheme "AEM to protect Bamundi village and its adjoining area from the erosion of river Brahmaputra" and total balance to be paid against both the work order to the petitioner is Rs. 3,96,854/- (Rupees Three Lakhs Ninety-six Thousand Eight Hundred Fifty-four) only."

¶10As can be seen from the affidavit of the respondent No.3, i.e., the Chief Engineer, Water Resources Department, Government of Assam, the Chief Engineer has admitted their liability towards the petitioner. However, the State Government has allegedly not been able to pay the petitioner his outstanding liability, on the ground that the Central share of the funds for the FMBAP Scheme has not been forthcoming, even though the State Government has allegedly allotted the full amount of the State 10% share for the FMBAP Scheme.

¶11The non payment of the outstanding liability of the petitioner, as can be culled out from the submissions made by the counsel for the State Government and the counsel for the Ministry of Jal Shati, clearly shows that the issue lies with non release of the Central share for the FMBAP Scheme, due to clarifications not being provided by the State Government to the Central Page No.# 6/8 Government, i.e., Ministry of Jal Shakti.

¶12In the view of this Court, the above issue is an issue to be sorted out by the Central Government and the State Government and it has nothing to do with the petitioner. The petitioner would have to be given his dues if the same is admitted by the concerned Chief Engineer. The tussle and differences between the State Government and the Central Government should not come in the way of the petitioner not getting his contractual dues.

¶13The contents of the letter No.BB/CE-II/FMP/2656/ 2020/10 dated

22.03.2022 issued by the Executive Engineer-II, office of the Chief Engineer-II, Brahmaputra Board, River Development and Ganga Rejuvenation, Department of Water Resources, Ministry of Jal Shakti is reproduced hereinbelow as follows:- " The Deputy Secretary-ll to the Govt. of Assam Water Resources Department Dispur, Guwahati

Sub-:- Monitoring Status report of the FMP Scheme code AS-83 and AS-103 Ref: WR(C) 313/2017/Pt-III/33 Dated:15.02.2022

Sir, In inviting reference to the letter above, submitting the proposal for release of Central share In respect of FMP scheme code AS-83 and AS-103, it is observed that-

¶1The audit certificate against the scheme code AS-83 is not submitted which needs to be submitted to this office.

¶2The balance amount of Central Share against the scheme code AS-83 is wrongly reflected in the FMP-1 and the budget provision for the financial year 2021-22.

Page No.# 7/8

¶3The total amount of fund released against the scheme code AS-103 is Rs. 4434.373 Lakh (Central Share = Rs. 2914.20 L and State Share = Rs. 1297.194 L). Utilization amount towards the court case is Rs. 222.979 Lakh). However, in Audited Statement of expenditure, it is seen that the total audited amount is Rs. 2684.10521 Lakh only and less amount disallowed as per Audit objection is Rs. 1159.76 Lakh. The compliance of the observation with the Accountant General (Audit), Guwahati may be submitted.

It is therefore, requested to clarify the above observations/discrepancies for onward submission to the Ministry of Jal Shakti, Department of Water Resources, RD&GR for release of Central Assistance in respect of above FMP schemes.

This issue with the approval of the competent authority."

¶14The letter No.BB/CE-II/2661/2021/158 dated 09.01.2023 issued by the Chief Engineer-II, Brahmaputra Board, River Development and Ganga Rejuvenation, Department of Water Resources, Ministry of Jal Shakti states as follows- "The Additional Chief Secretary to the Government of Assam Water Resources Department Dispur, Guwahati-06, Assam Sub: Observation of FMBAP scheme code AS-80, AS-83, AS-102, AS-103, AS-121 & AS-122.

Ref: 1. No.BB/CE-II/FMP/2656/2020/10 dated 22nd March, 2022

¶2No.BB/CE-I/FMP/285/2020/4 dated 22nd March, 2022

¶3No.BB/CE-I/SE(P)/FMP-II/182/2018/8 dated 6th June, 2022

¶4No. BB/CE-I/FMP-II/151/2015/23 dated 13th June, 2022

Sir, Inviting reference to the letters above (copy enclosed), it was requested to submit the replies of the observations/ discrepancies found against FMBAP scheme code AS-80, AS-83, AS-102, AS-103, AS-121 & AS-122 under WRD, Government of Assam for recommendation of balance Central Assistance. Reply of which still awaited. In this regard, it is requested to furnish the replies of the observations/discrepancies against the above FMBAP schemes at the earliest please for recommendation of balance Central Assistance and onward submission to the Ministry of Jal Shakti, DoWR, RD & GR, New Delhi." Page No.# 8/8

¶15In the case of Tamsher Ali and Etc. Etc Vs. State of Assam and Ors , reported in 2008 (4) GLT 1, the Full Bench of this Court had directed that the Head of the Department, such as the Chief Engineer of the concerned department would have to verify the claim of the contractor and the admitted amount should thereafter be paid by the State respondents.

¶16In view of the admission made by the Chief Engineer, Water Resources Department that the petitioner is liable to be paid Rs.3,96,854/-, this Court directs all the respondents to make the required clarifications with regard to the FMBAP Scheme and release the funds for the scheme, for payment of the admitted dues of the petitioner. The entire exercise should be concluded by the respondents within a period of 5(five) months from the date of receipt of a certified copy of this order.

¶17The writ petition is accordingly disposed of. JUDGE Comparing Assistant

22ooooooooooo oooooooooooooooo ooooooo oooooooooooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMI?ORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/4051/2022ooooooooo ooooooooooo ooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooo 2oooooooooooooooooo2oooooooooo ooooooooooo2ooooooo ooooooo ooooooooooooooooooooooooooooo oo2ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooo2oooooooooooo2ooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooo2ooooooo oooo2ooooooooooooooo oooooooooooooooooooo oooooooooooooooooo2ooooooo ooooooooooooooooooooooooooo oooooooo2oooooooooooooooooooo o2ooooooooooooooo2ooooooooo oooooooooooooooooooooooooooo oooooooooooooooooooooooo oooooooooooooooooo2oooooooo oooooooooooooooooooooooooooo oooooooooooooooo ooooooooooooooooooooo oo2ooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooo2ooooooooooooooooooooooooo oooooooooooo2oooooooooooooooooooooooooooooo oooooooooooooooooo Page No.# 2/8 Advocate for the Petitioner : MR. A K HUSSAIN, MR A HAQUE,MR. B HUSSAIN Advocate for the Respondent : SC, WATER RESOURCE, SC, FINANCE BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA