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2025 DIGILAW 1491 (KER)

Kothamangalam Municipality v. P. P. Ajithkumar

2025-05-28

AMIT RAWAL, MURALEE KRISHNA S.

body2025
JUDGMENT : MURALEE KRISHNA, J. 1. This is an appeal filed under Section 5(i) of the Kerala High Court Act, 1958, by respondents 1 and 2 in W.P. (C) No. 30648 of 2012 against the judgment of the learned Single Judge dated 29.02.2024 in the writ petition. 2. The 1 st respondent herein is a PWD contractor, who successfully secured the construction work of the first Phase of ‘Kothamangalam Municipal Bus Stand’ from the 1 st appellant Municipality, by quoting the lowest rate and subsequently by reducing it on negotiation. Accordingly, Ext.P1 agreement dated 09.03.2009 was entered into between the 1 st respondent and the Municipality. According to the 1 st respondent, the work could not be commenced immediately after the execution of Ext.P1 agreement due to reasons beyond his control. The initial work, such as the excavation of soil, was done under the supervision of the Assistant Engineer of the 1 st appellant. At that time, it was found that against the total quantity of 660 M 3 earth work excavation specified in the schedule to the agreement, around 13000 M of earth work excavation had to be done. Similarly, it was found that since hard rock was noticed beneath the soil, around 5000 M 3 of rock blasting had to be done at the site. The Assistant Engineer reported this to the Municipal Engineer, who in turn reported the same to the 2 nd appellant Secretary and subsequently, the matter was placed before the Chairperson of the 1 st appellant Municipality. The then Chairperson of the 1 st appellant Municipality granted sanction for carrying out earth work excavation of 13900 M 3 and medium rock blasting of 1900 M 3 by the 1 st respondent as extra items by invoking the emergency power conferred on him under Section 15(4) of the Kerala Municipality Act, 1994 (the ‘Municipality Act’ in short). 2.1. According to the 1 st respondent, he immediately commenced the said additional works and carried on earth excavation of 12417 M 3 and medium rock blasting of 1894 M 3 at the site. Meanwhile, the Municipality entrusted the removal of hard rock from the site to third parties. At that juncture, the Department of Mining and Geology directed the Municipality to stop the quarrying work and to remit an amount of Rs.21,000/- towards royalty and fine for the granite quarried. Meanwhile, the Municipality entrusted the removal of hard rock from the site to third parties. At that juncture, the Department of Mining and Geology directed the Municipality to stop the quarrying work and to remit an amount of Rs.21,000/- towards royalty and fine for the granite quarried. In spite of repeated requests by the 1 st respondent, the Municipality did not take any steps to recommence the work. Meanwhile, the contract period for completion of the work expired on 09.03.2010. Though the 1 st respondent submitted Ext.P7 request, dated 07.07.2011 to the 2 nd appellant to take appropriate steps for re-commencing the work after extending the period of contract or to relieve him of the subject work after paying the amount due to him, no response was followed. Hence, the 1 st respondent approached this Court by filing W.P. (C) No. 29403 of 2011, which was disposed of by Ext.P8 judgement dated 11.11.2011, directing the 2 nd appellant to consider and pass orders on Ext.P7 request within a time frame. Thereafter, as per Ext.P13 resolution dated 13.09.2012 of the Municipal Council, the 1 st respondent was decided to be relieved from the work. It was further resolved by the Council not to grant payment to the 1 st respondent for execution of the aforesaid two extra items of work and also resolved to recover from him the cost of earth that was removed from the site. Hence, the 1 st respondent filed the writ petition seeking the following reliefs: “(i) To issue of Writ of Certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P13 and quash the same to the extent it resolves not to grant payment to the Petitioner for the execution of the two extra items of work in question and also to recover from the Petitioner the cost of the earth that was removed from the site at 2007 schedule of rates. (ii) To declare that since the Petitioner has executed the two extra items of work in question on the basis of the sanction granted by the Chairperson of the 1 st Respondent Municipality in invocation of the emergency power provided under Section 15 (4) of the Kerala Municipality Act 1994, the Respondents are bound to make payment to the Petitioner for execution of the said two extra items of work, dehors, lack of approval by the Municipal Council of the 1 st Respondent Municipality. (iii) To issue a Writ of Mandamus or other appropriate writ, order or direction directing the Respondents to disburse to the Petitioner the entire amounts due to the Petitioner in respect of the subject work including payment for the execution of the two extra items in question within a time frame to be fixed by this Hon’ble Court.” 3. In the impugned Judgment, the learned Single Judge found that the 1 st respondent is entitled for the additional work carried out by him and if any illegality is committed by the Chairperson by not placing the matter before the Municipal Council, the Chairperson or the Municipality has to suffer and the 1 st respondent cannot be penalised for the same. Having found so, the learned Single Judge disposed of the writ petition with the following directions: “1. The petitioner is free to file a representation narrating his grievance before the additional 3 rd respondent, within three weeks from the date of receipt of a copy of this judgment. 2. Once such a representation is received, the additional 3 rd respondent will consider the same and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner and the Municipality, as expeditiously as possible, at any rate, within three months from the date of receipt of the representation. 3. The additional 3 rd respondent will issue notice to the then Chairperson also before deciding the matter. 4. The disbursal of the amount due to the petitioner will be subject to the above decision to be taken by the additional 3 rd respondent.” 4. Heard Adv. D. Kishore, the learned Standing Counsel for the appellants, Adv. Deepu Lal Mohan, the learned counsel for the 1 st respondent and the learned Government Pleader appearing for the 2 nd respondent and perused the paper book. 5. The learned Standing Counsel raised twofold arguments. Heard Adv. D. Kishore, the learned Standing Counsel for the appellants, Adv. Deepu Lal Mohan, the learned counsel for the 1 st respondent and the learned Government Pleader appearing for the 2 nd respondent and perused the paper book. 5. The learned Standing Counsel raised twofold arguments. His first argument is based on Section 15(4) of the Municipality Act read with Rule 14(5) of the Kerala Municipality (Execution of Public Works and Purchase of Materials) Rules, 1997 (‘the Rules 1997’ for short), which he raised before the learned Single Judge also. His second submission is that even if the Municipality is liable to pay any amount to the 1 st respondent, the burden may not be cast upon the Chairperson who acted in accordance with the power granted to him under Section 15(4) of the Municipality Act. 6. The learned counsel for the 1 st respondent/writ petitioner maintained his stand that was taken before the learned Single Judge. 7. There is no dispute between the parties on the factual aspects. Admittedly, the 1 st respondent carried out additional two works other than that covered by Ext.P1 agreement, such as earth work excavation and medium rock blasting of some quantity on the strength of the permission granted by the Chairperson of the 1 st appellant Municipality, invoking his power conferred under Section 15(4) of the Municipality Act. The contention of the appellants is that as per Proviso (b) to Section 15(4) of the Municipality Act, the Chairperson shall report the steps taken by him and the reasons therefore to the council at the next meeting and obtain its approval. The same is not done by the Chairperson. Similarly, by relying on Rule 14(5) of the Rules 1997, the appellants contend that where an item of work done, which has not been included in the estimate, an estimate for such excess work shall be prepared and prior sanction, both administrative and technical shall be obtained from the authorities who had given administrative and technical sanction to the original estimate and therefore, the 1 st respondent ought to have waited till this procedural compliance, even though he was permitted by the Chairperson to carry out additional works treating it as an emergency. 8. 8. As per Section 15(4) of the Municipality Act, a Chairperson may, in emergent circumstances, direct the execution of any work or performance of any Act, in respect of which sanction of the Council is necessary and in his opinion, the immediate execution or performance of which is necessary for the safety of the public and may also direct that the expenses incurred for the execution of such work or performance of such act be paid from the fund of the Municipality. Proviso (b) of Section 15(4) of the Municipality Act says that the steps taken under this sub- section by the Chairperson shall be reported at the next meeting of the council and its approval obtained. By Section 15(4) of the Municipality Act, discretion is given to the Chairperson to decide the urgency of the work and the necessity to grant sanction to carry out the said work without the prior sanction of the council. It is invoking this power, the Chairperson entrusted two additional works to the 1 st respondent. Whether the Chairperson reported the steps taken by him to the council on its next meeting or not is not the lookout of the 1 st respondent, since there is no stipulation in Section 15(4) of the Municipality Act that he can proceed with the work only after obtaining the assent of the council. If that is the intention behind the Proviso (b) to Section 15(4) of the Municipality Act, then the very purpose of the Section will become otiose, since the work will be halted and it will not be possible to meet the emergent situation, convinced by the Chairperson. 9. It is true that Rule 14(5) of the Rule 1997 says that, where an item of work done which has not been included in the estimate for unforeseen reason or an item of additional work has to be executed while the execution of a public work in accordance with the estimate is being carried on, an estimate for such excess work shall be prepared and prior sanction, both administrative and technical, shall be obtained from the authorities who had given administrative and technical sanction to the original estimate. On a combined reading of Section 15(4) of the Municipality Act and the aforesaid Rule would lead us to the opinion that the additional work mentioned in Rule 14(5) is not the one covered under Section 15(4) of the Municipality Act, but it applies to the additional works ordinarily carried out. If an emergent situation has arisen, then waiting for compliance with the procedure stipulated under Rule 14(5) of the Rules 1997, will make the emergent situation covered under Section 15(4) of the Municipality Act meaningless. Therefore, we find no sufficient ground to say that the learned Single Judge failed in properly appreciating the contentions of the 1 st respondent regarding his entitlement to the amount for the additional work carried out by him as permitted by the Chairperson of the 1 st appellant Municipality. 10. While coming to the observation made by the learned Single Judge regarding the liability of the Chairperson of the cost of construction carried out by the 1 st respondent on the basis of the permission granted by the Chairperson under Section 15(4) of the Municipality Act, the said section make it clear that the expenses incurred for the execution of such work be paid from the fund of the Municipality. Merely for the reason that the Chairperson failed to place the steps taken before the council in its next meeting, the Chairperson cannot be held liable to pay the expenses to the 1 st respondent, especially when no such contention was raised by any of the parties before the learned Single Judge and no material has been placed to the effect that the council has taken any such stand. In such circumstances, we hold the observation made by the learned Single Judge regarding the liability of the Chairperson only as an obiter dicta. We do not propose to interfere with the directions of the learned Single Judge in the impugned judgment except to the above extent. 11. The Writ appeal is therefore disposed of with the above observations. The 1 st respondent is granted further three weeks time from the date of receipt of a copy of this judgment to submit his representation before the 2 nd respondent/additional 3 rd respondent in the writ petition as directed in the impugned judgment, if the same is not already submitted. The 1 st respondent is granted further three weeks time from the date of receipt of a copy of this judgment to submit his representation before the 2 nd respondent/additional 3 rd respondent in the writ petition as directed in the impugned judgment, if the same is not already submitted. The 2 nd respondent/additional 3 rd respondent in the writ petition shall take a decision in the representation within a period of one month from the date of receipt of the same, if submitted afresh or within a period of one month from the date of receipt of a copy of this judgment if the representation has already been submitted by the 1 st respondent.