P. P. Ajithkumar v. Kothamangalam Municipality and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 30648 OF 2012`** ## **`PETITIONER:`** ``` P.P.AJITHKUMAR AGED 46 YEARS P.W.D. CONTRACTOR, PUTHENPURACKAL HOUSE, NELLAD P.O., MUVATTUPUZHA-686 721. BY ADVS. SRI.DEEPU LAL MOHAN ``` ## **`RESPONDENTS:`** ``` 1KOTHAMANGALAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, KOTHAMANGALAM-686 691. 2THE SECRETARY KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM-686 691. ADDL.R3THE REGIONAL JOINT DIRECTOR, URBAN AFFAIRS, BROADWAY, ERNAKULAM IS SUO MOTU IMPLEADED AS ADDITIONAL 3RD RESPONDENT AS PER ORDER DATED 11.08.2022. BY ADVS.SMT.DEEPA NARAYANAN, SR.GP SHRI.PEEYUS A KOTTAM, SC, MUNICIPALITY SHRI.JOICE GEORGE, SC, MUNICIPALITY SRI.D.KISHORE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.30648/2012** **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.30648 of 2012** **---------------------------------------------Dated this the 29[th ] day of February, 2024** ## **JUDGMENT** This writ petition is filed with following prayers: 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 granted by the Chairperson of the 1[st] 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 1[st] Respondent Municipality. **W.P.(C).No.30648/2012** **3** 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. iv. To issue such other and further reliefs as may be prayed for from time to time. **==> picture [36 x 12] intentionally omitted <==** 2. Petitioner was awarded the work of Kothamangalam Municipal Bus Stand First Phase by the 1[st] respondent Municipality. Accordingly Ext.P1 agreement was entered into by the petitioner with the 1[st] respondent Municipality. Immediately after execution of Ext.P1 agreement, it is the case of the petitioner that though the petitioner mobilized the required men and machinery for commencement of the subject work, because of some reasons beyond the control of the petitioner, the subject work could not be commenced. The subject work includes earth work excavation and prior to commencement of said item of work, initial levels were taken under the supervision of the Assistant **W.P.(C).No.30648/2012** **4** Engineer. Then it was found that as against total quantity of 660M³ earth work excavation specified in the schedule, around 13000M³ of earth work excavation had to be done. Further, on inspection, it is found that, since presence of sizable quantity of medium as well as hard rock was noticed beneath the soil at site, it was found that around 5000M³ of rock blasting had to be done at site. Accordingly, as evident by Ext.P15, the Assistant Engineer as well as the Municipal Engineer reported the need for execution of the said two items of work as extra items and subsequently, the then Chairperson of the 1[st] respondent Municipality granted sanction for carrying on earth work excavation of 13900M³ and medium rock blasting of 1900M³ by the petitioner as extra items invoking the emergency power conferred under Section 15 (4) of the Kerala Municipality Act 1994. On the basis of the said sanction, the petitioner immediately commenced the subject work and carried on earth work excavation of 12417M³ and medium rock blasting of 1894M³ at site. Meanwhile, the 1[st] respondent Municipality entrusted certain other persons to extract and remove the hard rock from the site. While so, as **W.P.(C).No.30648/2012** **5** evident from Exts.P5 and P6, the Department of Mining and Geology directed the Municipality to forthwith stop the quarrying work and to remit an amount of 21,000/- towards royalty and fine for the granites quarried. Pursuant thereto, the Municipality did not remit the aforesaid amount. Moreover, inspite of repeated requests, the respondents did not also take any steps to facilitate the petitioner to recommence the subject work, the petitioner submitted. Meanwhile, the time for completion of the subject work expired on 09.03.2010. Therefore, it is submitted by the petitioner that owing to reasons solely attributable to the 1[st] respondent Municipality and for reasons beyond the control of the petitioner, the subject work become totally frustrated. Therefore, the petitioner submitted Ext.P7 request before the 2[nd] respondent to either take appropriate steps for facilitating re-commencement of the subject work after extending the period of completion or to relieve the petitioner from the subject work after paying the amounts due to the petitioner for the work already done by him including payment for aforementioned two extra items of work. However, since **6** ## **W.P.(C).No.30648/2012** Ext.P7 did not evoke any response, the petitioner approached this Court by filing W.P.(C). No.29403/2011, which was disposed of as per Ext.P8 Judgment with a direction to the 2[nd] respondent to consider and pass orders on Ext.P7 within a time frame. Thereafter, as per Ext.P13, the Municipal Council resolved to relieve the petitioner from the subject work. The Council has further resolved not to grant payment to the petitioner for execution of the aforesaid two extra items of work and also resolved to recover from the petitioner the cost of the earth that was removed from the site without the sanction of the Municipal Council for the sole reason that the sanction granted by the former Chairperson of the 1[st] respondent Municipality to execute the two extra items of work in question in invocation of the emergency power has not been subsequently approved by the Municipal Council. Hence, this Writ Petition. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel for respondents 1 and 2. I also heard the learned Government Pleader for the additional 3[rd] respondent. **W.P.(C).No.30648/2012** **7** 4. The learned counsel for the petitioner reiterated his contentions in the writ petition. The learned counsel submitted that, it is an admitted fact that he carried out the extra work based on the sanction from the then Chairperson of the Municipality. The learned counsel also submitted that the petitioner cannot be blamed for the same and he is entitled the amount due to him for the extra work which is admittedly done by him. The counsel for the petitioner also relied on the judgment of the Apex Court in **Mahanagar Telephone Nigam Limited v. Tata Communications Limited** [2019 (5) SCC 341] and also the decision in **Food Corporation of India and Others v. Vikas Majdoor Kamdar Sahkari Mandli Ltd** [2007 KHC 4141]. The counsel submitted that the principle of Quantum Meruit is applicable in this case and the quantum is to be decided by the Municipality in the facts and circumstances of the case. The learned Standing Counsel for respondents 1 and 2, on the other hand, submitted that after sanction is granted by the Chairperson, the same is not placed before the Municipal Council within the statutory time. Therefore the decision of the Chairperson is not ratified by the **W.P.(C).No.30648/2012** **8** Municipal Council and hence the payment cannot be made. The counsel for the Panchayat takes me through Section 15(4)(b) of the Municipality Act and also Rules 14(1) and 14(5) of the Kerala Municipality (Execution of Public Works and Purchase of Materials) Rules, 1997 (for short, the Rules 1997) and submitted that the contractor ought to have waited till the formalities in the Act and Rules are complied before starting the work. Therefore the contractor is erred in proceeding the work without getting appropriate ratification as per the Act and Rules is the submission. Moreover, Sri.D.Kishore, the counsel appearing for the Municipality, submitted that there is serious dispute regarding quantum of amount to be paid to the petitioner which cannot be resolved in a writ petition filed under Article 226 of the Constitution of India. Therefore, it is submitted that this Court may kindly dismiss the writ petition. 5. The counsel for the Panchayat takes me through Section 15(4)(b) of the Kerala Municipality Act, which says that the 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 **W.P.(C).No.30648/2012** **9** 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. But the second proviso to Section 15(4) says that the steps taken under this sub-section and the reasons therefore shall be reported at the next meeting of the Council and its approval obtained. Therefore it is clear that the Chairperson has got power for directing the execution of any work or performance of any act in respect of which sanction of Council is necessary and in his opinion the immediate execution of performance or 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. This means before getting ratification from the Council it is the discretionary jurisdiction of the Chairperson to allow execution of any work or performance of any act. It is true that the steps taken under the sub-section and the reason therefore shall be reported at the next meeting of the Council and its approval obtained. But a reading of Section 15(4) would show that the **W.P.(C).No.30648/2012** **10** Chairperson has to decide whether an emergent circumstance situates in a particular facts and order execution of any work immediately. Once that decision is taken by the Chairperson, there is no bar in starting the work. The steps taken under section 15(4) and the reason for taking such a decision in emergent circumstances is to be reported at the next meeting of the council by the Chairperson and approval is to be obtained. Therefore, the Chairperson can direct the execution of any work or performance of any act in emergent circumstance only if he is satisfied that there is emergency and emergency to take such course and that is necessary in the interest of justice. The Chairperson while deciding the matter should be confident that he can convince the council and obtain the approval. But that does not mean that once the Chairperson directed the execution of any work invoking Section 15(4), the contractor should wait till the same is approved by the council. If that is the case, there is no meaning in Section 15(4) of the Municipality Act. In emergent situation, the Chairperson has got a discretionary jurisdiction to invoke the powers for directing the execution of any work **W.P.(C).No.30648/2012** **11** and it is the headache of the Chairperson to get the approval of the council in the next meeting. Therefore, I am of the considered opinion that Section 15(4) r/w second proviso to Section 15(4) would not give any mandate that the contractor can start the work only after getting approval from the next meeting as per section 15(4) second proviso. 6. Then the counsel for the Panchayat relied on Rule 14 of the Rules 1997. Rule 14(1) says that every public works undertaken by the Municipality shall be executed under the direct control and supervision by the Municipal Engineer or other technical officers authorized by him and they shall be satisfied of the progress and quality of work by direct inspection and test checking and they shall be responsible jointly and severally for the qualitative completion of every work so executed. Rule 14(5) 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 **12** ## **W.P.(C).No.30648/2012** authorities who had given administrative and technical sanction to the original estimate. It is also stated that, before giving technical sanction to such revised estimate, the concerned Engineer shall satisfy himself that the excess work is inevitable and he shall certify accordingly. The Rules 1997 is framed invoking the powers under Section 217 of the Kerala Municipality Act r/w clause (e) of sub-section (2) of section 565. When the Section 15(4) of the Municipality Act clearly says that the Chairperson has got the power to direct execution of any work in emergent circumstances, I am of the considered opinion that, Rule 14(1) or Rule 14(5) of the Rules 1997 would not restrict the powers of the Chairperson as per Section 15(4) of the Municipality Act. Therefore, the contention based on the same is also to be rejected. 7. The next contention of the counsel appearing for the Panchayat is that, there is dispute regarding the amount and the same cannot be decided in a proceedings under Article 226 of the Constitution of India. 8. But, I am of the considered opinion that the third respondent should look into the matter and redress the **13** ## **W.P.(C).No.30648/2012** grievance of the petitioner. Moreover, while deciding the matter, the 3[rd] respondent will also consider the dictum laid down by the Apex Court regarding the quantum meruit in **Mahanagar Telephone Nigam Limited’s** case (supra). The relevant paragraphs are extracted hereunder: “The principle of quantum meruit is often applied where for some technical reason a contract is held to be invalid. Under such circumstances an implied contract is assumed, by which the person for whom the work is to be done contracts to pay reasonably for the work done, to the person who does the work. The provisions of this section are based on the doctrine of quantum meruit, but the provisions of the Contract Act admit of a more liberal interpretation; the principle of the section being wider than the principle of quantum meruit.' The principle has no application where there is a specific agreement in operation. A person who does work or who supplies goods under a contract, if no price is fixed, is entitled to be paid a reasonable sum for his labour and the goods supplied. If the work is outside the contract, the terms of the contract can have no application; and the contractor is entitled to be paid a reasonable price for such work as was done by him. **W.P.(C).No.30648/2012** **14** 13. If a party to a contract has done additional construction for another not intending to do it gratuitously and such other has obtained benefit, the former is entitled to compensation for the additional work not covered by the contract. If an oral agreement is pleaded, which is not proved, he will be entitled to compensation under S.70. Payment under this section can also be claimed for work done beyond the terms of the contract, when the benefit of the work has been availed of by the defendant. 14. The term 'extra' is generally used in relation to the works, which are not expressly or impliedly included in the original contract price, provided the work is within the framework of the original contract. The question whether a particular work is extra will depend upon the terms and conditions of the contract, and other documents connected therewith.” 9. In such circumstances, the 3[rd] respondent can decide the matter, after giving an opportunity of hearing to the petitioner and the Municipality, in accordance with law. 10. The learned Standing Counsel for respondents 1 and 2, on the other hand, submitted that after sanction is **W.P.(C).No.30648/2012** **15** granted by the Chairperson, the same is not placed before the Municipal Council within the statutory time. Therefore the decision of the Chairperson is not ratified by the Municipal Council and hence the payment cannot be made. This Court considered the contentions of the petitioner and the respondents. It is an admitted fact that the petitioner completed the extra work based on the sanction given by the then Chairperson of the Municipality. It is also an admitted fact that the petitioner had completed the extra work. If that is the case, the petitioner cannot be blamed for any illegality committed by the Chairperson of the Municipality by not getting ratification by the Council. 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. Anyway I do not want to make any opinion on it because, the then Chairperson is not before this Court. This matter has to be resolved by the additional 3rd respondent after giving an opportunity of hearing to the petitioner and the then Chairperson. I make it clear that the petitioner is entitled the amount for the extra work he has **16** ## **W.P.(C).No.30648/2012** done as assessed by the competent authority, but whether it is to be paid by the Municipality and thereafter to be recovered from the then Chairman is to be decided by the additional 3[rd] respondent. The petitioner need not suffer because of any illegality committed by the Municipality or by its Chairman. Therefore, this writ petition is disposed of in the following manner: 1. The petitioner is free to file a representation narrating his grievance before the additional 3[rd] respondent, within three weeks from the date of receipt of a copy of this judgment. 2. Once such a representation is received, the additional 3[rd] respondent will consider the same and pass appropriate 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 3[rd] respondent will issue notice to the then Chairperson also before deciding **17** ## **W.P.(C).No.30648/2012** 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 3[rd] respondent. JV/Sbna/ **P.V.KUNHIKRISHNAN JUDGE** **18** ## **W.P.(C).No.30648/2012** ## **`APPENDIX OF WP(C) 30648/2012`** ## `PETITIONER EXHIBITS` |`EXHIBIT P1`|`THE PHOTOCOPY OF THE AGREEMENT`|`NO.`| |---|---|---| ||`79/08-09 DATED 09-03-2009 ENTERED INTO`|| ||`BY THE PETITIONER WITH THE `|`2ND`| ||`RESPONDENT FOR AND ON BEHALF OF THE`|`1ST`| ||`RESPONDENT MUNICIPALITY.`|| |`EXHIBIT P2`|`COPY OF THE LETTER DATED 21-05-2009`|| ||`SUBMITTED BY THE PETITIONER BEFORE THE`|| ||`2ND RESPONDENT.`|| |`EXHIBIT P3`|`COPY OF THE LETTER DATED 09-07-2009`|| ||`SUBMITTED BY THE PETITIONER BEFORE THE`|| ||`2ND`|| ||`RESPONDENT.`|| |`EXHIBIT P4`|`COPY OF THE NOTICE NO.D.O.E/80/E2/10`|| ||`DATED 08-02-2010 ISSUED BY THE`|| ||`GEOLOGIST TO THE 2ND RESPONDENT.`|| |`EXHIBIT P5`|`COPY OF THE LETTER NO.D.O.E/80/E2/10`|| ||`DATED 21-07-2010 OF THE GEOLOGIST`|| ||`ISSUED TO THE 2ND RESPONDENT.`|| |`EXHIBIT P6`|`COPY OF LETTER NO.D.O.E/80/E2/10 DATED`|| ||`26-04-2011 OF THE SENIOR GEOLOGIST`|| ||`ISSUED TO THE 2ND RESPONDENT.`|| |`EXHIBIT P7`|`THE PHOTOCOPY OF THE LETTER 07-07-2011`|| ||`SUBMITTED BY THE PETITIONER BEFORE`|`THE`| ||`2ND RESPONDENT.`|| |`EXHIBIT P8`|`THE PHOTOCOPY OF THE JUDGMENT DATED -`|| ||`11-11-2011 OF THIS HON'BLE COURT`|`IN`| ||`W.P.(C) NO. 29403/2011.`|| |`EXHIBIT P9`|`THE PHOTOCOPY OF LAWYER'S NOTICE DATED`|| ||`22-06-2012`<br>`ISSUED`<br>`TO`<br>`THE`|`2ND`| ||`RESPONDENT AT THE INSTANCE OF `|`THE`| ||`PETITIONER.`|| |`EXHIBIT P10`|`THE PHOTOCOPY OF PROCEEDING NO.P.W.2-`|| ||`3967/2000 DATED 05-07-2012 ISSUED`|`BY`| ||`THE 2ND RESPONDENT.`|| |`EXHIBIT P11`|`THE PHOTOCOPY OF JUDGMENT DATED`|| ||`08-10-2012 OF THIS HON'BLE COURT`|`IN`| **19** ## **W.P.(C).No.30648/2012** ``` C.C (C) NO. 1194/2012. EXHIBIT P12THE PHOTOCOPY OF LETTER NO. PW2- 3967/2000 DATED 05-10-2012 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P13THE PHOTOCOPY OF RESOLUTION NO. 12 DATED 13-09-2012 OF THE MUNICIPAL COUNCIL OF THE 1ST RESPONDENT MUNICIPALITY. EXHIBIT P14THE PHOTOCOPY OF APPLICATION DATED 05- 11-2012 SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT MUNICIPALITY UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P15THE PHOTOCOPY OF LETTER NO. PW3 12017/12 DATED 23-11-2012 ISSUED TO THEPETITIONERBYTHEPUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT MUNICIPALITY TOGETHER WITH COPIES OF PROCEEDINGS OF THE 1ST RESPONDENT MUNICIPALITY IN CONNECTION WITH THE EXECUTION OF THE SUBJECT WORK. ```