K.D. Sudhakaran Contractor v. Kottayam Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940** ## **WP(C).No. 5127 of 2019** ## **PETITIONER/S:** **K.D.SUDHAKARAN CONTRACTOR, KARIPPAYIL HOUSE, VILLUNNI P.O., PIN-686 008, KOTTAYAM.** **BY ADV. SRI.T.P.SAJAN** ## **RESPONDENT/S:** **1 KOTTAYAM MUNICIPALITY REPRESENTED BY SECRETARY, OFFICE OF THE KOTTAYAM MUNICIPALITY, KOTTAYAM-686 001. 2 THE SECRETARY KOTTAYAM MUNICIPALITY, OFFICE OF THE SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM, PIN-686 001. 3 ASSISTANT EXECUTIVE ENGINEER KOTTAYAM MUNICIPALITY, OFFICE OF THE ASST. EXECUTIVE ENGINEER, KOTTAYAM MUNICIPALITY, KOTTAYAM, PIN-686 001. BY ADV. SRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 5127 of 2019 2 ## **JUDGMENT** The petitioner, who is a registered contractor of the first respondent Municipality, had submitted tender for execution of filling and tarring of Manthar Road in Ward Nos. 24 and 27 of Kottayam Municipality, including the work of re-construction of a canal on the side of the said road. He was issued with Ext.P1 selection notice dated 07.12.2017 and he executed an agreement dated 15.12.2017, in the format in Ext.P2, for execution of the work, in terms of Ext.P3 work order. Petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P8 notice dated 27.12.2018 and seeking a writ of mandamus commanding the respondents to do the needful to avert the obstruction created by the local people in the work site and handover the work site for completing the contract work as per Ext.P1 and allow him to complete the work, without any obstruction from the local people. The petitioner has also sought for a declaration that in the event of respondents cancelling Ext.P1 for the execution of work, it will not be at his risk and cost and that, he is entitled to be compensated for the work already done and the loss caused to him due to the abrupt termination of the contract by the respondents; and a writ of mandamus commanding the WP(C).No. 5127 of 2019 3 respondents to pay the amounts spend by the petitioner for the work already done as per Ext.P1 in the event of the respondents re-tendering the work to some other person. 2. On 20.02.2019, when this writ petition came for admission, the learned Standing Counsel for the first respondent Municipality was directed to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondents. 4. As already noticed, the challenge made in this writ petition is against Ext. P8 notice dated 27.12.2018 issued by the third respondent Assistant Executive Engineer, whereby the petitioner has been informed that he has not done any work as per Ext.P1, even after the completion of the period of agreement and the Municipality is satisfied that he cannot execute the work and as such, he is liable for the loss caused to the Municipality. Therefore, it is decided to cancel the agreement and re-tender the work, at the risk and cost of the petitioner. 5. Ext.P8 notice is one dated 27.12.2018. Nearly one month after the issuance of Ext.P8 notice, the petitioner has submitted Ext.P9 reply dated 08.02.2019 and thereafter, moved this Court by filing this writ petition seeking various reliefs. WP(C).No. 5127 of 2019 4 6. In **State of U.P v. Brahm Datt Sharma [(1987) 2 SCC 179]** the Apex Court held that, when the show cause notice was issued under a statutory provision calling upon to show cause, the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford an opportunity of hearing and once cause is shown it is open to the authority to consider the matter in the light of the facts and submission placed before it and only thereafter a final decision in the matter could be taken. Therefore, interference by the Court before that would be premature. 7. In **Seimens Ltd v. State of Maharashtra [(2006) 12 SCC 33]** the Apex Court held that ordinarily, a writ court may not exercise its discretionary jurisdiction to entertain a writ petition questioning a notice to show cause unless the notice appears to have been without jurisdiction. 8. In **Union of India v. Vicco Laboratories [(2007) 13 SCC 270]** the Apex Court held that, normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and satisfy the authorities concerned about the WP(C).No. 5127 of 2019 5 absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in an abuse of process of law, certainly, in that case, the writ court would not hesitate to interfere even at the stage of issuance of the show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. The mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. 9. In view of the law laid down in the decisions referred to supra, no interference under Article 226 of the Constitution of India is warranted on a show cause notice issued under a statutory provision unless the notice is shown to have been issued palpably without any authority of law or that it is an abuse of process of law. The mere assertion in the writ petition that the show cause notice has been issued without any authority of law or that it is an abuse of process of law would WP(C).No. 5127 of 2019 6 not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, no interference of this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution is warranted. Having considered the averments and also the grounds raised in this writ petition, this Court finds that the petitioner has not made out a case warranting interference on Ext.P8 notice, in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India on the grounds raised in this writ petition. 10. Learned counsel for the first respondent Municipality would submit that Ext.P9 reply submitted by the petitioner is now pending consideration before the third respondent and that, the said respondent shall take an appropriate decision, with notice to the petitioner and after affording him an opportunity of being heard. 11. In such circumstances, this writ petition is disposed of as follows:- - i) The challenge made in the writ petition against Ext.P8 notice fails, since the petitioner has not made out a case warranting interference on that notice, in exercise of the writ jurisdiction under Article 226 of the Constitution of India. - ii) The petitioner shall appear before the third WP(C).No. 5127 of 2019 7 respondent Assistant Executive Engineer on **18.03.2019** at **11.A.M.** iii) On such appearance, the third respondent shall consider Ext.P9 explanation offered by the petitioner to Ext.P8 notice, dated 27.12.2018 and take an appropriate decision in the matter, as expeditiously as possible, at any rate, within a period of two weeks from that date. iv) The decision so taken shall be communicated to the petitioner forthwith. Sd/- ## **ANIL K. NARENDRAN, JUDGE** DCS WP(C).No. 5127 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE ISSUED TO PETITION VIDE REFERENCE NO.PVG-28607/2017 DATED 7.12.17.** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT FORM OF AGREEMENT DATED 15.12.2017.** - **EXHIBIT P3 TRUE COPY OF THE WORK ORDER DATED 4.1.2018. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 11.5.2018 ISSUED BY THE PETITIONER TO THE THIRD RESPONDENT.** - **EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 11.5.2018 ISSUED BY THE THIRD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 6.9.2018 ISSUED BY THE PETITIONER TO THE THIRD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF ONE OF THE PHOTOGRAPH OF THE WORK SITE SHOWING THE PRELIMINARY WORKS FOR CONSTRUCTION OF CANAL.** - **EXHIBIT P6 A TRUE COPY OF PHOTOGRAPH OF THE WORK SITE SHOWING THE PRELIMINARY WORKS FOR CONSTRUCTION OF CANAL.** - **EXHIBIT P6 B TRUE COPY OF PHOTOGRAPHS OF THE WORK SITE SHOWING THE PRELIMINARY WORKS FOR CONSTRUCTION OF CANAL.** - **EXHIBIT P6 C TRUE COPY OF PHOTOGRAPHS OF THE WORK SITE SHOWING THE PRELIMINARY WORKS FOR CONSTRUCTION OF CANAL.** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 22.10.2018 ISSUED BY PETITIONER TO THE THIRD RESPONDENT.** - **EXHIBIT P7 A TRUE COPY OF THE RECEIPT THEREOF DATED 22.10.2018.** - **EXHIBIT P8 TRUE COPY OF LETTER VIDE REFERENCE PW828607/17 DATED 27.12.18 ISSUED BY THE THIRD RESPONDENT.** WP(C).No. 5127 of 2019 9 ## **EXHIBIT P9** **TRUE COPY OF THE LETTER AND RECEIPT DATED 8.2.2019 ISSUED BY THE PETITIONER TO THE THIRD RESPONDENT.** DCS