Bapdhon Borah v. Union of India and 5 Ors

ORDER

28.08.2024

¶1Heard Mrs. K.K. Choudhury, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned CGC appearing for the Ministry of Jal Shakti and Mr. C. Sarma, learned counsel appearing for the Water Resources Department, Government of Assam.

¶2The petitioner's case is that he is a registered contractor with the Water Resources Division, Jorhat. He was given work contracts under two Schemes "1. Raising and Strengthening to B/dyke from Mukaloni To Jhanjimukh including A/E works" and "2. R/S of Existing Krishi Bund from Butting Point of Extension of N/R Dyke upto Nikorighat Including A/E Measures Near Bhagban Namghar."

¶3Though the petitioner had completed the work contracts and was paid a certain sum of money, the balance amount of Rs.15,16,042/- has not been paid Page No.# 3/8 to the petitioner.

¶4The petitioner's counsel submits that the State Public Information Officer & Executive Engineer, Jorhat Water Resources Division vide letter No. JWRD/CIR-30/Pt-VI/1830 dated 17.05.2024 has furnished the liability statement regarding the outstanding liability amount payable to the petitioner amounting to Rs.15,16,042/-. The petitioner's counsel submits that the present case is covered by the order dated 27.09.2022 passed by this Court in WP(C) No. 4734/2021 (Nazim Hussain Vs. The State of Assam and 8 Ors.). She accordingly submits that a similar direction, as given in the above case, be issued in this case.

¶5Mr. C. Sarma, learned counsel for the Water Resources Department submits 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.

¶6Ms. A. Gayan, learned CGC appearing for the Ministry of Jal Shakti and Mr. C. Sarma, learned counsel appearing for the Water Resources Department submit that they have got no objection to the prayer made by the petitioner's counsel. However, Ms. A. Gayan 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 Page No.# 4/8 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. However, 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 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"

¶9As can be seen from the liability statement issued by the Executive Engineer, Water Resources Department, Government of Assam, the Executive Engineer has admitted their liability towards the petitioner. However, the State Government has 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 Page No.# 5/8 been forthcoming, even though the State Government has allegedly allotted the full amount of the State 10% share for the FMBAP Scheme.

¶10The 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 Government, i.e., Ministry of Jal Shakti.

¶11In 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.

¶12The 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 Page No.# 6/8

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.

¶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." The above letter dated 22.03.2022 is made a part of the record and marked as Annexure-X.

¶13The 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 Page No.# 7/8 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." The above letter dated 09.01.2023 is made a part of the record and marked as Annexure-Y.

¶14The question to be decided is whether the claim of the non payment of contractual dues of the petitioner is an admitted amount. In 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.

¶15In view of the above reasons, the respondents should settle the pending issues between the State Government and the Central Government for release of the Central funds for the FMBAP Scheme at the earliest, for enabling the State respondents to pay the admitted dues of the petitioner. Accordingly, this Court directs the Chief Engineer of the Water Resources Department to verify Page No.# 8/8 the claim of the petitioner and come to a finding whether the claimed amount is an admitted amount. This Court also 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.

¶16The writ petition is accordingly disposed of.

JUDGE Comparing Assistant

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