Kerala High Court
Nedumangad Municipality vs N.G.Peter on 12 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
WP(C) NO. 24389 OF 2013
PETITIONER:
NEDUMANGAD MUNICIPALITY
NEDUMANGAD, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY, S.JAHANGIR.
BY ADV SRI.P.RAMAKRISHNAN
RESPONDENTS:
1 N.G.PETER
NELLIKKAL HOUSE, PARRY JUNCTION,
KOCHI-682 005.
2 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT
INSTITUTIONS
THIRUVANANTHAPURAM, KERALA-695 001.
BY ADVS.
SRI.BABU JOSEPH KURUVATHAZHA
SRI.T.K.BIJU MANJINIKARA
B RAMACHANDRAN
P.S.LAKSHMI(K/491/2017)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.24389/2013
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.24389 of 2013
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Dated this the 12th day of January, 2023
JUDGMENT
It is the case of the petitioner Municipality that the 1 st
respondent was entrusted with the work of constructing an
'Indoor Stadium' as he was the lowest bidder in the tender
proceedings. An agreement was executed between the
petitioner and the 1st respondent in connection with the above
work on 22.08.2005. The work however had not been pursued
beyond preliminary earth work and construction of retaining
walls, since the Chief Town Planner raised objection against
the construction on the ground that the area was earmarked
for construction of a town hall. Subsequently the Municipal
council decided to continue with the construction and the 1 st
respondent had been informed of the same as per notice dated
19.06.2008. But the 1st respondent had informed the petitioner
as per a letter dated 04.12.2009 that he was opting out of the
agreement and had sought release of security deposit of
WP(C).No.24389/2013
Rs.one lakh, retention amount of Rs. 2.6 lakhs and balance
admitted bill amount after recording the measurements of the
work. Ext.P1 is the letter issued by the 1 st respondent. The 1st
respondent thereafter filed WP(C) No.1242/2010 before this
Court seeking a direction to release him from contractual
obligations after disbursing security deposit, retention
amount, admitted bill etc. The said writ petition was disposed
of by this Court as per Ext.P2 judgment dated 29.01.2010. It
is the case of the petitioner that the 1st respondent had been
initially paid Rs.6 lakhs on 24.03.2006, Rs.10 lakhs on
17.04.2006 and Rs.6,03,078/- on 30.03.2007. Pursuant to the
judgment in WP(C) No. 1242/2010, the petitioner, on
10.03.2010, resolved to stop the construction temporarily and
to release the dues to the 1st respondent. Thereafter an
amount of Rs.2,59,780/- had been paid to the 1 st respondent is
the contention raised in this writ petition. Thus, according to
the petitioner, a total amount of Rs.25,47,096/- had been
disbursed to the 1st respondent. However, the 1st respondent
submitted Ext.P3 representation alleging that no steps are
being taken for recording the measurement of earth filling
WP(C).No.24389/2013
worth Rs.2 lakhs and retaining wall worth Rs.1.5 lakhs. Soon
after Ext.P3 representation, the 1st respondent filed WP(C)
No.28446/2010 alleging that he had not received an amount of
Rs.1,50,000/- being the cost of construction of the retaining
wall and a sum of Rs.2 lakhs for the work executed in
connection with the filling of red earth. The said writ petition
was disposed as per Ext.P4 judgment directing the petitioner
to consider and pass orders on Ext.P3 representation made by
the 1st respondent. It is the case of the petitioner that pursuant
to the above judgment, the petitioner had informed the 1 st
respondent that he had been paid his entire dues in
connection with the construction of the proposed indoor
stadium and that he cannot have any further claim in the
matter. Ext.P5 is the letter. Thereafter, it is the case of the
petitioner that, suppressing Exts.P4 and P5, the 1 st respondent
filed OP No. 464/2012 before the 2 nd respondent alleging that
he is yet to receive Rs.1,50,000/- towards construction of the
retaining wall and Rs.2 lakhs for earth filling. The petitioner
entered appearance before the 2nd respondent and submitted a
statement pointing out that the 1st respondent had been paid
WP(C).No.24389/2013
the amounts due to him and that he had been intimated of the
said fact consequent to the judgment in WP(C)
No.28446/2010. Ext.P7 is the statement. It is the case of the
petitioner that, the 1st respondent meanwhile amended the
original petition and confined his relief to "passing an order
directing the respondent to consider the case of the
complainant and to order to measure the balance work done
by the claimant and to disburse the amount to the claimant". It
is the case of the petitioner that, the 2 nd respondent, on a
misconception of facts, issued an order dated 09.01.2013
directing the petitioner to comply with Ext.P2 judgment.
Ext.P8 is the order passed by the 2 nd respondent. It is the case
of the petitioner that, notwithstanding the fact that Ext.P2
judgment had been complied with and that Ext.P8 order was
legally and factually unsustainable, the petitioner issued a
notice to the 1st respondent for a hearing on 25.03.2013. The
1st respondent appeared on the said date and he was apprised
of the fact that no amount was due to him. Ext.P9 is the letter
dated 26.03.2013. Thereafter the 1 st respondent filed CMP
No.217/2013 in OP No.464/2012 alleging non-compliance of
WP(C).No.24389/2013
Ext.P8 order. Ext.P10 is the above petition. The petitioner
filed a detailed statement before the 2nd respondent denying
the allegations in Ext.P10, as evident by Ext.P11. It is the case
of the petitioner that the 2 nd respondent refused to consider
Ext.P11 and by Ext.P12 order, again held that Ext.P2 judgment
has not been complied with and that the directions in Ext.P8
will have to be complied within a period of one month.
According to the petitioner, Exts.P8 and P12 are illegal and
unsustainable. Hence this writ petition.
3. Heard the learned counsel for the petitioner and
the learned counsel for the 1st respondent.
4. The petitioner Municipality is challenging Exts.P8
and P12 orders. A perusal of Ext.P8 will show that the
direction issued by the 2nd respondent is to comply with the
directions of the High Court in Ext.P2 judgment. After Ext.P8,
Ext.P12 order is passed by the 2nd respondent in which also
the 2nd respondent directed the Municipality to comply with
the directions in Ext.P2 judgment.
5. If there is any non-compliance of the directions of this
Court, the remedy of the 1st respondent is not to approach the
Ombudsman, the 2nd respondent herein. On the other hand,
WP(C).No.24389/2013
the petitioner submitted that the directions are already
complied and an order is passed and the same is
communicated to the 1st respondent. If that be the case, the
remedy of the 1st respondent is to challenge that order.
According to me, the order passed by the 2 nd respondent will
not stand. Those orders can be set aside, leaving open all the
contentions of the 1st respondent. If there is any surviving
grievance and if there any amount due to the 1 st respondent,
the 1st respondent is free to proceed in accordance to law.
Therefore, this writ petition is disposed of in the
following manner:
1. Exts.P8 and P12 are set aside.
2. All the contentions of the 1st respondent
regarding the claim of additional amount from
the petitioner Municipality are left open and the
1st respondent is free to agitate the same in
accordance to law.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
WP(C).No.24389/2013
APPENDIX OF WP(C) 24389/2013
PETITIONER EXHIBITS
P1 : COPY OF THE LETTER DTD.4.12.2009
FROM THE 1ST RESPONDENT TO THE
PETITIONER.
P2 : COPY OF THE JUDGMENT
DTD.29.1.2010 IN WPC NO.1242/2010.
P3 : COPY OF THE REPRESENTATION
DTD.10.8.2010 FROM THE 1ST RESPONDENT
TO THE PETITIONER.
P4 : COPY OF JUDGMENT DTD.30.9.2010 IN
WPC NO.28446/2010.
P5 : COPY OF LETTER DTD.18.12.2010
SENT BY THE PETITIONER TO THE 1ST
RESPONDENT.
P6 : COPY OF OP NO.464/2012 FILED BY
THE 1ST RESPONDENT BEFORE THE 2ND
RESPONDENT.
P7 : COPY OF STATEMENT DTD.27.6.2012
SUBMITTED BY THE PETITIONER BEFORE THE
2ND RESPONDENT.
P8 : COPY OF ORDER DTD.9.1.2013 IN OP
NO.464/2012 OF THE 2ND RESPONDENT.
P9 : COPY OF LETTER DTD.26.3.2013 FROM
THE PETITIONER TO THE 1ST RESPONDENT.
P10: COPY OF CMP NO.217/2013 IN OP
NO.464/2012 FILED BY THE 1ST
RESPONDENT.
P11: COPY OF STATEMENT DTD.3.7.2013
FILED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
P12: COPY OF ORDER DTD.4.7.2013 PASSED
BY THE 2ND RESPONDENT.
