`IN THE HIGH COURT OF ANDHRA PRADESH :: AT AMARAVATHI

W.P.NO.1613/2021

BETWEEN:

M/s. Dwarakamai Constructions Pvt. Ltd.,

Having its Admin Office at
Flat No.502, Dwarakamai Towers,
Vijay Nagar Colony, Ram Nagar Main Road,
Ananthapuramu, Andhra Pradesh-515004.
Rep. By its Director
Desai Madam Mohan Reddy.

AND Petitioner

The State of Andhra Pradesh

Rep. By its Special Chief Secretary,
Water Resources Department,
A.P. Secretariat Building,
Velagapudi, Amaravati,
Vijayawada, Andhra Pradesh and 10 Others. Respondents

COUNTER AFFIDAVIT FILED BY THE 5TH RESPONDENT

I, K.Harinath, S/o. K.Narasappa, aged about 60 Years, Executive Engineer, I.B.

Division, Water Resources Department, Dharmavaram, Ananthapuram District and 5 th

respondent in the W.P.1613/2021 do hereby solemnly and sincerely state on oath as

follows.

1. I am the 5th respondent herein and as such I am well acquinted with the facts

and circumstances of the case. I am authorized to file this Affidavit on behalf of

the respondents 1 to 4 and 6 th also, as all are have common case on Law and on

facts to us.

2. In reply to the avertment made in Para.No. 2 of the Affidavit, it is submitted that

the work of “ Formation of Sub-Surface Dam across Pedda Hagari River

near Junjurampalli (V), Rayadurg (M) in Ananthapuram District” L.S.I &

Part Bill was checkmeasured on 15.02.2019 and Passorder was made on

15.03.2019 and bill was processed for Gross Amount of Rs. 78,61,405/- and

Net Amount of Rs.74,65,578/- bearing Token No.2712509 of 2018 and

289013 of 2019 under Head of Account 4702 Capital Outlay on Minor Irrigation

– 00 Not Applicable – 101 Surface Water – 11 State Development Schemes – 24

Neeru-Chettu – 530 Major Works – 531 Other Exependiture. The Pay and

Accounts Officer, Works Accounts, Ananthapuramu vide Lr.No.PAO/ATP/Sn-

Attester Deponent
 III/A.2/2019-2020/No.30, dt.11.02.2020 stating that the bills pertains to Neeru-

Chettu works were rejected / Payment cancelled in CFMS Website and Hence, the

Bills were returned including this bill pertains to Neeru-Chettu. It is further

submitted that, L.S. II & Final Bill for which measurements were recorded and

Checkmeasured on 22.05.2019 and the Bill Gross Amount of Rs. 2,51,91,901/-

including L.S.I. & Part Bill Gross Amount. This Bill is in Division Office for want of

opening the relevant Head of Account in CFMS Web Site. It is humbly submitted

that the contention of the Petitioner may not be correct that the purposeful delay

was made in processing the Bills, but the payment was not made only due to

relevant head is inoperative.

3. Tenders for the work of “ Formation of Sub-Surface Dam across Pedda

Hagari River near Junjurampalli (V), Rayadurg (M) in Ananthapuram

District” called for by the Superintending Engineer, Irrigation Circle,

Ananthapuram vide Tender Notice No.20/2018-19, dt.07/04/2018 and the work

was awarded to M/s. Dwarakamai Constructions Private Limited, Ramnagar,

Ananthapuram vide Superintending Engineeer, Irrigation Circle, Ananthapuram

Agt.No.147 SEA/2018-19, dt.24.09.2018 for Rs.3,76,87,038.67. Agreement

period of this work is Twelve (12) Months. The Petitioner has started the work

within the Agreement Period. As per the records, it reveals that the above

information furnished by the Petitioner is found correct.

4. It is submitted that, the Administrative Approval accorded by the District

Collector & District Magistrate, Ananthapuramu vide Procdgs.No.Endt.SE/IC/

ATP/DEE/TS/F.W.21/37 M, dt.10.01.2018 for Rs.550.00 Lakhs under Neeru-

Chettu Programme. Technical Sanction was accorded by the Chief Engineer

(Projects), Ananthapuram vide CERNo.55 CE/2017-18, dt.20.03.2018 for

Rs.505.00 Lakhs and subsequent procedure was followed and entered into the

Agreement with the Agency by the Superintending Engineer, Irrigation Circle,

Ananthapuram for Rs.3,76,87,038.67. As per Agreement Clause No.13.1 a)

under Heading Time for Completion of Tender Notice and Information to

Bidders “ The total period of completion is Twelve (12) Months from the

date of entering with agreement to proceed including rainy season” and

As per Agreement Clause No.8.0 under Tender Notice and Information to

Bidders the Tenderer has to inspecte the site before Tendering to the

work. Even though unsupported site conditions the Agency has to complete the

Attester Deponent
 work within the Agreement Period. The Petitioners has started and completed

the work within the Agreement Period is correct.

5. L.S.I & Part Bill was checkmeasured on 15.02.2019 and Passorder was made on

15.03.2019 and bill was processed for Gross Amount of Rs. 78,61,405/- and

Net Amount of Rs.74,65,578/- bearing Token No.2712509 of 2018 and

289013 of 2019 under Head of Account 4702 Capital Outlay on Minor Irrigation

– 00 Not Applicable – 101 Surface Water – 11 State Development Schemes – 24

Neeru-Chettu – 530 Major Works – 531 Other Expenditure. The Pay and Accounts

Officer, Works Accounts, Ananthapuramu vide Lr.No.PAO/ATP/Sn-III/A.2/2019-

2020/No.30, dt.11.02.2020 stating that the bills pertains to Neeru-Chettu works

were rejected / Payment cancelled in CFMS Website and Hence, the Bills were

returned including this bill pertains to Neeru-Chettu. Inspite of non payment of

L.S.I & Part Bill, the Agency has completed the work. But, it is pertinent to note

that, it is mandatory for the Agency to complete the work even though the

Intermediate Payments were not made.

6. L.S. II & Final Bill for which measurements were recorded and Checkmeasured on

22.05.2019 and the Bill Gross Amount of Rs. 2,51,91,901/- including L.S.I. &

Part Bill Gross Amount. This Bill is also cannot be processed for want of opening

the relevant Head of Account in CFMS Web Site. The Quality Control Authorities

who authenticated for Quality and Quantity for the work frequently inspected the

Worksite which reveals from the Records. Present construction staff of this

Division viz., (1) Asst. Exe. Engineer, (2) Deputy Executive Engineer and (3)

Executive Engineer were not incumbents during the execution of this Work. The

Additional Superintendent of Police, Vigilance and Enforcement, Ananthapuram

called for the list of various Ongoing Works as well as recently completed works

during 2017-18 & 2018-19 under all Grants with estimate cost of Rs.50.00 Lakhs

and above in Ananthapuram vide Lr.No.Rc.No.39/B/V&E/ATP/Eng/2019,

dt.16.04.2019. Hence, the Executive Engineer, I.B. Division, W.R.D.,

Dharmavaram submitted the List of works as called for vide Divl.Lr.No.205 M,

dt.18.04.2019 to the Additional Superintendent of Police, Vigilance and

Enforcement, Ananthapuram. This work details were also covered in the List

which was enclosed to the letter. As per the statement given by the then Deputy

Executive Engineer, Construction stated that the Vigilance and Enforcement

Officials were inspected the work on 06.08.2019, it was further stated by the

Attester Deponent
 then Deputy Executive Engineer that the Asst. Exe. Engineer, Construction was

also attended for inspection of Vigilance and Enforcement Team and no records

pertaining to this work were taken over by Vigilance and Enforcement Team. It is

further submitted that till to date there is no any official communication was

made by the Vigilance and Enforcement Department either to the Sub-Division

Office or to the Division Office after inspection of site. It is submitted that the

reasons for non clearance of Bills is already mentioned in above Para.2.

7. As per U.O.Note No.FING1-FMU0ASD(WR1)/80/2019 (Comp.NO.898809),

dt.29.05.2019 issued by Govt. of A.P., Finance (FMU-WR.1) Department

mentioned that the “works grounded but expenditure is less than 25% of

Originally estimated value shall be reviewed afresh. No payments will be done in

this regard before obtaining orders afresh from appropriate authorities”.

Subsequently no orders were received regarding payment of pending work bills

pertains to Neeru-Chettu Works. The Pay and Accounts Officer, Works Accounts,

Ananthapuram vide Lr.No.PAO/ATP/Sn-III/A.2/2019-2020/No.30, dt.11.02.2020

stating that the bills pertains to Neeru-Chettu works were rejected / Payment

cancelled in CFMS Website and Hence, the Bills were returned including this bill

pertains to Neeru-Chettu. As per Agreement Clause No.1 (C) Bid Capacity

under Clause 1.3 Heading Qualification Criteria of Tender Notice and

Information to Bidders “The tenderers who meet the requirement

qualification criteria will be qualified only, if their available Bid Capacity

is more than the Estimated Contract Value”. Based on this only the work

was awarded to the Agency. The Agency has stated that, he has borrowed the

amounts from private persons and also from financial institutions since the

Department has not cleared the bills may not be a considerable point in the light

of Agreement Clause mentioned above.

8. It is submitted that, as per U.O.Note No.FING1-FMU0ASD(WR1)/80/2019

(Comp.NO.898809), dt.29.05.2019 issued by Govt. of A.P., Finance (FMU-WR.1)

Department mentioned that the “works grounded but expenditure is less than

25% of Originally estimated value shall be reviewed afresh. No payments will be

done in this regard before obtaining orders afresh from appropriate authorities”.

Subsequently no orders were received regarding payment of pending work bills

pertains to Neeru-Chettu Works. The Pay and Accounts Officer, Works Accounts,

Ananthapuram vide Lr.No.PAO/ATP/Sn-III/A.2/2019-2020/No.30, dt.11.02.2020

Attester Deponent
 stating that the bills pertains to Neeru-Chettu works were rejected / Payment

cancelled in CFMS Website and Hence, the Bills were returned including this bill

pertains to Neeru-Chettu. It is mandatory to the department to implement the

instructions of the Government regarding payment of work bills.

9. It is submitted that, It is Mandatory for the Executive Engineer to implement the

instructions issued by the Government from time to time regarding payment of

Bills. At present for processing the Bills is not possible due to relevant head of

account is inoperative under Neeru-Chettu Programme.

10. It is submitted that, the Executive Engineer cannot process the work bills which

were completed under the Neeru-Chettu Programme unless the relevant Head of

Account comes into operation.

11. It is submitted that the L.S.I & Part Bill for Rs.78,61,405/- submitted to the Pay

and Accounts Officer, Works Accounts, Ananthapuram duly obtaining the Quality

Control Certificate from Quality Control Division, Ananthapuram for arranging

payment to the Agency. Subsequently, as per U.O. Note No.FING1-

FMU0ASD(WR1)/80/2019 (Comp.No.898809), dt.29.05.2019 issued by Govt. of

A.P., Finance (FMU-WR.1) Department mentioned that the “works grounded but

expenditure is less than 25% of Originally estimated value shall be reviewed

afresh. No payments will be done in this regard before obtaining orders afresh

from appropriate authorities”. As on the date of issue of the above orders

expenditure i.e., Payment made on this work is NIL. The details of the bills

pending with the Pay and Accounts Officer, Works Accounts, Ananthapuram were

submitted to the Superintending Engineer, Irrigation Circle, Ananthapuram on

27.08.2019. L.S. I & Part Bill will be resubmitted whenever relevant Head of

Account comes into operation. L.S.II & Final Bill will be further processed for

payment whenever relevant Head of Account comes into operation.

12. It is submitted that the Payment will be made to the Agency for the Workdone

value of Rs.2,51,91,901/- will be processed as per the instructions of the

Government and if the relevant Head of Account will be Operative.

13. The matter related to payment of workdone value with Compound Interest for

delayed payments not in the purview of the Executive Engineer since the relevant

Head of Account under Neeru-Chettu Programme which become inoperative.

Attester Deponent
 14. It is submitted that, the subject matter in this Paragraph is in the purview of the

Government and action will be taken for Payment of Work Bills as per the

instructions of the Government Only.

15. It is submitted that, in case of identical facts which are similar to this Case to

grant the relief to the Petitioner will be given as per the instructions of the

Government Only in the light of Honourable Court Orders.

16. It is submitted that, the Honourable High Court of Andhra Pradesh may be

pleased to take appropriate action regarding payment of work bills to the

Petitioner.

17. It is submitted that, based on the Orders of the Honourable High Court of A.P.

and subsequent instructions of the Government the Executive Engineer will act

and implement the Government Orders.

18. It is submitted that, based on the Orders of the Honourable High Court of A.P.

and subsequent instructions of the Government the Executive Engineer will act

and implement the Government Orders. The Bills will be processed whenever

relevant Head of Account will be Operative.

Attester Deponent

In view of the above reasons mentioned in this Counter Affidavit for the work of “
Formation of Sub-Surface Dam across Pedda Hagari River near Junjurampalli (V),
Rayadurg (M) in Ananthapuram District”, regarding payment of Work Bills it is humbly
prayed that the above Writ Petition may please be dismissed in the interest of the Justice.

Solemnly affirmed and Signed

on this the ________ day of February, 2021 and signed in the my presence.

Attester

VERIFICATION STATEMENT

I, K.Harinath, S/o. K.Narasappa, aged about 60 Years, Executive Engineer, I.B.

Division, Water Resources Department, Dharmavaram, Ananthapuram District, do hereby
verify and state that the contents of above paragraphs of the written statement are true to
my personal knowledge based on information and records which are believed to be true and
correct.
Verified on this the day of February, 2021 at Ananthapuram District.

Attester Deponent
Govt. Pleader for Water Resources Deponent

Attester Deponent