Nalbari Municipal Board vs Noor Ahmed Jilani
2022 Latest Caselaw 4253 Gua

                                                                     Page No.# 1/9

GAHC010009572014




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : RSA/149/2014

            NALBARI MUNICIPAL BOARD
            REPRESENTED BY THE CHAIRMAN NALBARI, MUNICIPAL BOARD,
            NALBARI.



            VERSUS

            NOOR AHMED JILANI
            S/O MD. ISLAMUDDIN AHMED, VILL. KALAFAKRITOLA, P.S. and DIST.
            NALBARI.



Advocate for the Petitioner    : MR.D CHOUDHURY

Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

For the appellant : Mr. D. Choudhury, Advocate.

Mr. N. Ray, Advocate.

For the respondent :          Mr. M. K. Sharma, Advocate.
                                                                               Page No.# 2/9

Date of hearing       :      03.11.2022


Date of Judgment :          03.11.2022




                               JUDGMENT AND ORDER (Oral)

1. Heard Mr. D. Choudhury, learned counsel assisted by Mr. N. Ray, learned

counsel appearing for the appellant. Also heard Mr. M. K. Sharma, learned counsel

representing the respondent.

2. This Second Appeal is directed against the concurrent judgment and decree

dated 03.08.2012 passed by the learned Civil Judge, Nalbari in connection with

Money Appeal No.2/2012 partially affirming the judgment and decree dated

11.09.2012 passed by the learned Munsiff No.2, Nalbari in Money Suit No.35/2010. The

Second Appeal was admitted to be heard on the following substantial questions of

law :-

"i) Whether agreement for supply of goods by the plaintiff was binding on the Municipal Board in terms of Assam Municipal Act, 1956?

ii) Whether the Municipal Board can deny payment of consideration after receiving goods supplied by the plaintiff?"

3. The sole respondent, as plaintiff, had earlier instituted Money Suit No.35/2010

praying for a money decree for recovery of a sum of Rs.83,340/- from the

appellant/defendant i.e. Nalbari Municipal Board on account of the materials

supplied by him. The plaintiff's case, in a nutshell, is that on 21.06.2008, the then Page No.# 3/9

Chairman, Nalbari Municipal Board, had issued a work order under Memo

No.NMB/PWD/4/2008-09/131 for supply of certain materials for the purpose of

construction of a concrete drain at Fakirtola Road, Ward No.5, Nalbari. As per the

work order dated 21.06.2008, the plaintiff was asked to supply 1 st class bricks, 1st class

broken brick bats, cement, quarry sand and stone chips. Accordingly, the plaintiff

had made those supplies and thereafter submitted a bill for payment of Rs.68,600/-.

The Chairman of the Municipal Board had also approved the bill and recommended

payment to be made to the plaintiff. However, when the matter was sent to the

Administrator of the Board, no action was taken for clearing the outstanding dues of

the plaintiff. Situated thus, the plaintiff had issued demand letters (Exts-3 and 4) and

thereafter, instituted the Money Suit for recovery of the principal amount of

Rs.68,600/- together with interest calculated at the rate of 9% per annum on the said

amount being Rs.14,740/- thus, totaling to a sum of Rs.83,340/-.

4. The appellant/defendant Nalbari Municipal Board contested the suit by filing

written statement.

5. Based on the pleadings of the parties, the learned trial court had framed the

following issues :-

"1. Whether the suit is maintainable?

2. Whether there is a cause of action for this suit?

3. Whether the suit is bad for non-joinder of necessary parties?

4. Whether the Chairman, Nalbari Municipal Board vide his order No. NMB/PWD/4/2008-09/131 dated 21.06.08 allotted to the plaintiff the work of Page No.# 4/9

supplying materials for construction of 'pucca' drain along Kalafakirtola Road at Ward No.5, Nalbari?

5. Whether the plaintiff is entitled to the decree as prayed for?

6. To what other relief/reliefs the parties are entitled?"

6. In support of his case the plaintiff had examined himself as PW-1 and Sri

Phanindra Talukdar, Assistant Engineer of Nalbari Municipal Board, as PW-2 and had

also exhibited certain documents including the work order (Ext-1) and the bill

submitted by the plaintiff against supply of materials (Ext-2). The defendant side had

examined the Chairman of the Nalbari Municipal Board as DW-1.

7. On conclusion of trial, the learned trial court had decided all the issues in

favour of the plaintiff/respondent and decreed the suit for recovery of Rs.68,600/-

along with interest at the rate of 8% per annum for the period from 23.08.2008 till

21.12.2010 i.e. from the date of approval of the bill till institution of the Money Suit. The

learned trial court had also awarded additional interest at the rate of 6% per annum

on the aforesaid amount to be calculated from the date of filing of the suit till

realization of the amount.

8. Being aggrieved by the judgment and decree dated 11.09.2012, the

defendant as appellant had preferred Money Appeal No.2/2012 which was partly

allowed by the learned First Appellate Court by affirming the decree in so far as the

recovery of Rs.68,600/- along with interest at the rate of 6% per annum from the date

of submitting the appeal till realization of the decretal amount is concerned.

However, the learned lower Appellate Court had interfered with that part of the Page No.# 5/9

decree passed by the learned trial court whereby, interest at the rate of 8% per

annum was awarded for the period from 23.08.2008 till 20.12.2010. Aggrieved thereby,

the instant Second Appeal has been filed.

9. By referring to the materials available on record Mr. D. Choudhury, learned

counsel for the appellant has strenuously argued that the work order dated

21.06.2008 was unauthorized in as much as before issuing the same, the Chairman of

the Nalbari Municipal Board did not comply with the requirement of Section 64 of the

Assam Municipal Act, 1956 by obtaining the approval of the Board. Mr. Choudhury

submits that as per section 64 no contract involving value in excess of five hundred

rupees will be binding on the appellant unless sanctioned by the Board. Moreover,

submits Mr. Choudhury, no tender notice was floated before issuing the work order to

the plaintiff. It is also the submission of Mr. Choudhury that the work in question was

required to be executed with the financial assistance provided by the District Urban

Development Agency (DUDA), Nalbari and since no such fund was provided by the

aforesaid agency, the question of the Board making payment to the plaintiff did not

arise. Mr. Choudhury has, however, in his usual fairness, submitted that the appellant

Board is not denying or disputing the fact that the plaintiff had in fact supplied the

materials in terms of the work order dated 21.06.2008.

10. Responding to the above argument, Mr. Sharma, learned counsel appearing

for the respondent submits that since the plaintiff was not required to construct the

drain, hence, there was no question of executing any contract agreement with the

Board. As such, Section 64 of the Assam Municipal Act, 1956 would not have any Page No.# 6/9

application in the facts and circumstances of the case. According to Mr. Sharma, the

then Chairman of the Nalbari Municipal Board had merely asked the petitioner to

supply certain materials and in view of the provisions of Section 54 of the Act of 1956,

the Chairman of the Board had the power to issue such orders if the same was

required in the exigencies of public service. Since the procedure to be followed

while issuing the work order was an internal matter of the Nalbari Municipal Board, in

view of the fact that the Board has not initiated any action against the then

Chairman for issuing the work order to the plaintiff and considering the fact that the

supply has admittedly been made by his client, the appellant cannot now refuse to

make payment for the goods and articles received by the Board. Mr. Sharma,

therefore, submits that there is no scope for this Court to interfere with the concurrent

finding of facts recorded by the learned court below.

11. I have considered the arguments advanced by the learned counsel for both

the parties and have also gone through the materials available on record.

12. As has been noted herein above, the plaintiff has exhibited the work order

dated 21.06.2008 as Ext-1 as well as the bill submitted by him for a sum of Rs.68,600/-

(Ext-2). There is no dispute about the fact that these documents have been duly

proved. The PW-2, who is an official of the appellant Board and was fully aware of the

facts and circumstances of the case, has also deposed before the court supporting

the claim of the plaintiff. The appellant Board has also not denied or disputed the

fact that the plaintiff had in fact made the supply of the materials indicated in the

work order dated 21.06.2008. There is also no complain against the plaintiff as regards Page No.# 7/9

the quality of the materials supplied as well as the time period within which the same

was made. If that be so, even if there is no contract agreement executed between

the appellant Board and the plaintiff, the matter would, in the opinion of this Court,

squarely fall within the ambit of Section 70 of the Indian Contract Act, 1872. Section

70 of the Act of 1872 is quoted herein below for ready reference :-

"70. Obligation of person enjoying benefit of non-gratuitous act.--

Where a person lawfully does anything for another person, or delivers anything

to him, not intending to do so gratuitously, and such other person enjoys the

benefit thereof, the latter is bound to make compensation to the former in

respect of, or to restore, the thing so done or delivered."

13. The learned counsel for the appellant could not invite the attention of this

Court to any material available on record to show that the plaintiff had not supplied

the materials in a lawful manner. The bill submitted by the plaintiff (Ext-2) bears ample

testimony of the fact that the plaintiff had never intended to make those supplies

gratuitously. It is also not denied that the materials supplied by the plaintiff under work

order (Ext-1) was used for the purpose of construction of the public drain. If that be so,

there cannot be any question of denying payment to the plaintiff for the materials

supplied by him merely on the ground that no contract agreement in writing was

executed by and between the appellant and the respondent.

14. In so far as the argument advanced by Mr. Choudhury regarding non-

compliance of Section 64 of the Act of 1956 is concerned, this Court is not convinced

with such argument for the following reasons. Firstly, there is no written contract Page No.# 8/9

signed between the plaintiff and the appellant Board. Section 64 would come into

play only when the Board enters into a contract for the purpose of fulfillment of any of

the provisions of the Act. It is in such circumstances that the contract would have to

be ratified and/or approved/sanctioned in a Board meeting and the same will have

to be in writing and signed by at least two of the members, one of whom shall have

to be the Chairman or Vice-Chairman and shall be sealed with the common seal of

the Board. Unless so executed, such contract shall not be binding on the Board. Since

there is no contract executed between the Board and the plaintiff/respondent, the

provisions of Section 64 would have no relevance in the facts and circumstances of

the present case.

15. Secondly, even assuming that the work order dated 21.06.2008 was issued by

the then Chairman in an unauthorized manner, the appellant Board ought to have

initiated action against the then Chairman as and when the same was detected.

However, it is the admitted position of fact that no such action was initiated against

the then Chairman. Instead, the materials supplied by the plaintiff were used for

construction of the public drain. The above fact, viewed in the perspective of the

peculiar facts and circumstances of the case, in the opinion of this Court, would

amount to tacit approval of the appellant Board as regards the action on the part of

the then Chairman of the Nalbari Municipal Board. If that be so, the appellant cannot

be permitted to deny the fruits of the decree passed in favour of the

plaintiff/respondent merely by taking a technical plea. Therefore, the stand adopted

by the appellant is found to be wholly untenable in the eye of law and hence, is

hereby rejected.

Page No.# 9/9

16. For the reasons discussed herein above, I am of the view that there is no scope

for this Court to interfere with the concurrent judgment and decree passed by the

learned courts below inasmuch as the decree passed by the learned court below

does not suffer from any infirmity in the eye of law.

The substantial questions of law stand answered accordingly.

The appeal is held to be devoid of any merit and is accordingly dismissed.

There would be no order as to cost.

Registry to send back the LCR.

JUDGE

Comparing Assistant