Kerala High Court
Kothamangalam Municipality vs P.P.Ajithkumar on 28 May, 2025
Author: Amit Rawal
Bench: Amit Rawal
WA NO. 520 OF 2024 1 2025:KER:36356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 28
TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
WA NO. 520 OF 2024
AGAINST THE JUDGMENT DATED 29.02.2024 IN WP(C) NO.30648 OF
2012 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2 IN THE W.P.(C):
1 KOTHAMANGALAM MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, KOTHAMANGALAM-686 691,
PIN - 686691.
2 THE SECRETARY
KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM-686 691,
PIN - 686691.
BY ADVS.
D.KISHORE
SHRI.JOICE GEORGE, SC, KOTHAMANGALAM MUNICIPALITY
TOM E. JACOB
RESPONDENTS/PETITIONER & ADDITIONAL 3RD RESPONDENT IN THE
W.P.(C):
1 P.P.AJITHKUMAR,
AGED 46 YEARS,
P.W.D. CONTRACTOR, PUTHENPURACKAL HOUSE, NELLAD P.O.,
MUVATTUPUZHA-686 721, PIN - 686721.
2 ADDL.R3.
REGIONAL JOINT DIRECTOR,
URBAN AFFAIRS, BROADWAY ERNAKULAM, PIN - 682031.
● ADDL.R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED
11.08.2022 IN WP(C)30648/2012.
WA NO. 520 OF 2024 2 2025:KER:36356
R1 BY ADV DEEPU LAL MOHAN
R2 BY SR.GOVERNMENT PLEADER SRI T K VIPINDAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2025,
THE COURT ON 28.05.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Muralee Krishna, J.
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 1st respondent herein is a PWD contractor, who
successfully secured the construction work of the first Phase of
'Kothamangalam Municipal Bus Stand' from the 1st 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 1st respondent and the
Municipality. According to the 1st 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 1st appellant. At that time, it was
found that against the total quantity of 660 M3 earth work
excavation specified in the schedule to the agreement, around
13000 M3 of earth work excavation had to be done. Similarly, it
was found that since hard rock was noticed beneath the soil,
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around 5000 M3 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 2nd appellant Secretary and
subsequently, the matter was placed before the Chairperson of
the 1st appellant Municipality. The then Chairperson of the 1st
appellant Municipality granted sanction for carrying out earth work
excavation of 13900 M3 and medium rock blasting of 1900 M3 by
the 1st 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 1st respondent, he immediately
commenced the said additional works and carried on earth
excavation of 12417 M3 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. In spite of
repeated requests by the 1st 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
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the 1st respondent submitted Ext.P7 request, dated 07.07.2011 to
the 2nd 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 1st 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 2nd 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 1st respondent was decided to be relieved
from the work. It was further resolved by the Council not to grant
payment to the 1st 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 1st 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
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granted by the Chairperson of the 1st 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 1st
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 1st 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
1st 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 3rd respondent, within
three weeks from the date of receipt of a copy of this
judgment.
2. Once such a representation is received, the additional 3rd
respondent will consider the same and pass appropriate
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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 3rd 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
3rd respondent."
4. Heard Adv. D.Kishore, the learned Standing Counsel
for the appellants, Adv. Deepu Lal Mohan, the learned counsel for
the 1st respondent and the learned Government Pleader appearing
for the 2nd 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 1st 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.
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6. The learned counsel for the 1st 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 1st 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
1st 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 1st respondent ought to have waited till this
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procedural compliance, even though he was permitted by the
Chairperson to carry out additional works treating it as an
emergency.
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 1st 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 1st respondent, since there is no stipulation
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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
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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 1st respondent regarding his
entitlement to the amount for the additional work carried out by
him as permitted by the Chairperson of the 1st 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 1st 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 1st 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
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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.
The Writ appeal is therefore disposed of with the above
observations. The 1st respondent is granted further three weeks
time from the date of receipt of a copy of this judgment to submit
his representation before the 2nd respondent/additional 3rd
respondent in the writ petition as directed in the impugned
judgment, if the same is not already submitted. The 2nd
respondent/additional 3rd 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
1st respondent.
Sd/-
AMIT RAWAL, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
DSV/-
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PETITIONERS' ANNEXURES
Annexure -I TRUE COPY OF THE COUNTER AFFIDAVIT DATED
3.8.2022 FILED BY THE RESPONDENTS IN
W.P.(C) 30648/2012
