K.M.Kunhikrishnan vs The Kannur Municipal Corporation
2022 Latest Caselaw 1445 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
                       WP(C) NO. 22912 OF 2018
PETITIONER/S:

               K.M.KUNHIKRISHNAN, AGED 65 YEARS
               MAVILA VALAPPIL HOUSE,CHIRAKKAL P.O.,KANNUR
               DISTRICT-670 011
               BY ADVS.
               SRI.T.R.HARIKUMAR
               SRI.ARJUN RAGHAVAN
               SRI.ADITHYA RAJEEV


RESPONDENT/S:

    1          THE KANNUR MUNICIPAL CORPORATION
               REPRESENTED BY ITS SECRETARY,KANNUR-670 001
    2          THE SECRETARY
               KANNUR MUNICIPAL CORPORATION,REPRESENTED BY ITS
               SECRETARY, KANNUR-670 001
               BY ADVS.
               SMT.S.AMBILY
               SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL
               CORPORATION
               SMT.NAMITHA NAMBIAR
               SRI.SAJI THOMAS

OTHER PRESENT:

               ADV MEENA M -SC



        THIS    WRIT   PETITION     (CIVIL)    HAVING    COME    UP    FOR
ADMISSION       ON   02.02.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                     -2-
W.P.(C). No. 22912 of 2018



                             P.V.KUNHIKRISHNAN, J.
                              =================================================

                             W.P. (C) No. 22912 of 2018
                       =============================================================

                  Dated this the 2nd day of February, 2022

                                        JUDGMENT

The above writ petition is filed with following prayers:

"i) to issue a writ of mandamus or any other writ, direction or order, directing the respondents to forthwith disburse the amounts payable to the petitioner as per Ext.P3.

ii) to grant such other relief's as this Honourable Court may deem fit in the circumstances of this case."

2. The petitioner is a registered 'B' class contractor,

who had undertaken various civil contract works for the 1 st

respondent Corporation. One such contract was for the

reconstruction of Kakkathodu side wall and covering slab II

stage. The estimate cost for the work awarded as per Ext.P2

was Rs.18,50,000/- for which provision was made in the budget

of the 1st respondent Corporation. Immediately after award of

contract the petitioner commenced the work and completed the

W.P.(C). No. 22912 of 2018

same on 31.03.2015. It is the case of the petitioner that the

work was completed by expending an amount of Rs.18,90,156/-

and as per the contract certificate, an amount of Rs.17,76,745/-

is payable to the petitioner. It is the definite case of the

petitioner that in spite of more than several years elapsed, the

amount due to the petitioner under the contract work executed

by him has so far not been paid. Hence, this writ petition is

filed.

3. Heard the learned counsel for the petitioner and the

learned Standing counsel appearing for the 1st respondent.

4. The counsel for the petitioner reiterates his

contentions in the writ petition. The counsel submitted that the

work is satisfactorily completed and even now the admitted

amount is not paid to the petitioner. There is absolutely no

justification for the same.

5. On the other hand, the learned Standing Counsel for

W.P.(C). No. 22912 of 2018

the 1st respondent takes me through paragraph 5 of the

Statement filed by the 1st respondent, in which it is stated that

some irregularities are noted by the concerned officer and

enquiry is necessary. But the counsel for the petitioner takes

me through paragraph 5 of the reply affidavit, in which it is

stated that no such enquiry was conducted so far.

6. I considered the contentions of the petitioner and the

respondents. It is an admitted fact that the work was completed

in the year 2015 itself. The petitioner is entitled to the amount

due to him. But the Standing Counsel for the 1 st respondent

takes me through paragraph 5 of its statement, which reads thus:

"5. Since the work is extended, the petitioner is liable to pay fine as per the PWD Manual. He is liable to pay fine for the delayed signing of the agreement also. All these things are to be considered before the bill can be approved and passed for payment. Some of the irregularities are noted by the concerned officer and on detailed verification, the above irregularities/illegalities are detected and found out.

Unless the above are considered and appropriate

W.P.(C). No. 22912 of 2018

decision is taken by the appropriate authorities/forum, the petitioner cannot claim payment of any amount on the basis of Ext.P3 or on the basis of the work done by him. He has joined with the above mentioned Officers of the Municipality (Corporation) to perpetrate the irregularity and therefore, before the Municipality (present Corporation) can take a decision, the petitioner is to be given notice of the above and he has to explain the above defects/irregularities. The corporation also is to consider whether any action is to be taken against the erring officers. The petitioner will be definitely given notice and he will be given opportunity to explain his position. Thereafter appropriate decision will be taken and the amount as found eligible to be paid to the petitioner will be paid after completing the formalities and procedure."

7. In paragraph 5, it is stated that the Corporation has to

consider whether any action is to be taken against the erring

officers. It is also stated that the petitioner will be given notice

and he will be given an opportunity to explain his contentions

and thereafter only the decision will be taken. The statement is

filed on 13.09.2018. The petitioner filed reply affidavit in July

2021. As on that date also, the Corporation has not conducted

W.P.(C). No. 22912 of 2018

any enquiry or proceedings in connection with this work. This

cannot be go on like this because the petitioner contended

before this Court that he is entitled to the amount due to him

and a finality is necessary. If any amount is due to the

petitioner that should be disbursed to him forthwith, the counsel

submits.

Therefore, this writ petition is disposed of in the following

manner:

1. The 1st respondent is directed to conduct the enquiry or any other proceedings, which is mentioned in paragraph 5 of the statement dated 13.09.2018, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.

2. Before passing orders as directed above, an opportunity of hearing, either virtually or physically, should be given to the petitioner.

3. Based on the decision taken by the 1st respondent in

W.P.(C). No. 22912 of 2018

the enquiry, the amount due to the petitioner should be disbursed to him within three weeks from the date on which the decision is taken, as directed above.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 22912 of 2018

APPENDIX OF WP(C) 22912/2018

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER IN MAY, 2007 EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF THE AGREEMENT NO.7/13-14 DATED 27-04- 2013, ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT CORPORATION EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGES OF THE CONTRACT CERTIFICATE ISSUED AFTER COMPLETION OF WORK AS PER EXT-P2 AGREEMENT.

EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 13- 01-2016 EXHIBIT P5 A TRUE COPY OF THE POWER OF ATTORNEY DATED 15.11.2017 ALONG WITH THE COVERING LETTER DATED 20.11.2017 ISSUED BY THE KANNUR CORPORATION EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 28.03.2018 FORWARDED BY THE DIRECTOR KANNUR JILLA CONTRACTORS COOPERATIVE SOCIETY LTD. NO.C 1430 EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 20.07.2018 IN WP(C) 22785 OF 2018 EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DATED 23.07.2018 IN WPC NO.23106 OF 2018.