Pala Municipality, Pala v. James Kappan Kappil House

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936 WP(C).No. 13986 of 2013 (W) ---------------------------- PETITIONER: --------------- PALA MUNICIPALITY PALA, KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT: ------------------ SHRI.JAMES KAPPAN KAPPIL HOUSE, LALAM P.O. PALA P.O. KOTTAYAM DISTRICT-686 575. R1 BY ADV. SRI.MATHEW JOHN (K) R1 BY ADV. SRI.DOMSON J.VATTAKUZHY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-04-2014, THE COURT ON 11.04.2014 DELIVERED THE FOLLOWING: WP(C).No. 13986 of 2013 (W) :2 : ## **APPENDIX** PETITIONER'S EXHIBITS ---------------------------- EXT.P1 : TRUE COPY OF THE GOVERNMENT ORDER NO. GO(MS)NO. 289/2001/LSGD DATED 22-11-2001 ISSUED BY THE GOVERNMENT. EXT.P2 : TRUE COPY OF THE REQUEST DAETD 10-11-2011 UNDER RIGHT TO INFORMATION ACT SUBMITTED BY THE RESPONDENT. EXT.P3 : TRUE COPY OF THE REPLY DATED 06-12-2011 SENT TO THE RESPONDENT BY THE PETITIONER. - EXT.P4 : TRUE COPY OF THE COMPLAINT DATED 25-10-2012 FILED BY THE RESPONDENT BEFORE THE OMBDUSMAN. - EXT.P4(A) : TRUE COPY OF THE NOTICE DATED 23-01-2013 ISSUED BY THE OMBDUSMAN. - EXT.P5 : TRUE COPY OF THE ORDER DATED 23-02-2013 ISSUED BY THE OMBUDSMAN. RESPONDENT'S EXHIBITS: --------------------------------------- - EXT.R1(a) : TRUE COPY OF THE LETTER BY THE PETITIONER DATED 02.05.2005 TO THE RESPONDENT. - EXT.R1(b) : TRUE COPY OF THE LETTER BY THE PETITIONER DATED 07.03.2006 TO THE RESPONDENT. - EXT.R1(c) : TRUE COPY OF THE PROCEEDINGS ACKNOWLEDGING RECEIPT DATED 25.04.2006. - EXT.R1(d) : TRUE COPY OF THE COMMUNICATION BY THE PETITIONER DATED 18.05.2006 TO THE RESPONDENT. - EXT.R1(e) : TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT DATED 24.06.2006. - EXT.R1(f) : TRUE COPY OF THE LETTER BY THE RESPONDENT TO THE PETITIONER DATED 07.05.2007. - EXT.R1(g) : TRUE COPY OF THE RECEIPT ISSUED BY THE PETITIONER DATED 09.05.2007. - EXT.R1(h) TRUE COPY OF THE LETTER BY THE RESPONDENT TO THE PETITIONER DATED 27.06.2007. EXT.R1(i) TRUE COPY OF THE LETTER BY THE RESPONDENT TO THE PETITIONER DATED 25.02.2009. EXT.R1(j) TRUE COPY OF THE RECEIPT ISSUED BY THE PETITIONER DATED 16.03.2009. WP(C).No. 13986 of 2013 (W) :3 : EXT.R1(k) TRUE COPY OF RESOLUTION NO.13 DATED 23.11.2009 APPROVED BY THE PETITIONER. EXT.R1(l) TRUE COPY OF THE ORDER DATED 15.02.2013. EXT.R1(m) TRUE COPY OF THE JUDGMENT DATED 21.12.2011 IN W.A. NO. 1735 OF 2011. //True Copy// P.A. to Judge. rv ## A. V. RAMAKRISHNA PILLAI, J. - - - - - - - - - - - - - - - - - W.P.(C). No. 13986 of 2013 - - - - - - - - - - - - - - - - Dated this the 11[th] day of April, 2014. ## JUDGMENT Ext.P5 order passed by the learned Ombudsman for Local Self Government Institutions is under challenge. 2. The respondent Municipality authorised the respondent to prepare the plan, estimate, structural design etc. for the proposed lorry parking cum shopping complex at Thekkenada. This was on the resolution of the Council of the petitioner Municipality. An agreement was entered into between the petitioner Municipality and the respondent which among other things prescribed the fee payable to the respondent. However, the Government by Ext.P1 Order specified that the architectural fee to be paid is limited to 0.5% of the estimated amount or `60,000/- whichever is lesser and the prior sanction from the Government is to be obtained before payment. Though the respondent prepared the plan, estimate and the structural design, the petitioner W.P.(C) No. 13986/2013 : 2 : Municipality did not make use of the same for different reasons. As the respondent did not get the fees prescribed as per the agreement, he approached the learned Ombudsman for Local Self Government Institutions, who after hearing both sides, passed Ext.P5 order directing the petitioner Municipality to abide by the terms of agreement and disburse the amount due as per the terms of the agreement in accordance with law. It is with this background the petitioner has come up before this Court. 3. In the counter affidavit filed by the respondent, it was contended that the respondent was asked by the petitioner Municipality through Ext.R1(a) letter to prepare the architectural design, structural design, estimate etc. of the proposed lorry parking cum shopping complex. Accordingly, the respondent prepared preliminary design which was accepted by the petitioner and consequently requested the respondent to meet the Chairman for negotiations. Ext.R1(b) is the copy of the same. Thereafter, there were discussions by which it was finally agreed that W.P.(C) No. 13986/2013 : 3 : the fee for preparing the designs and detailed estimates would be 2.33% of the estimated cost of the project and accordingly intimated the respondent that the matter was urgent and requested him for immediate action. According to the respondent, all details were submitted in advance. Ext.R1(c) is the proceedings acknowledging receipt of the structural designs and other details furnished by the respondent. Thereafter, by Ext.R1(d), the petitioner Municipality informed the respondent that they have approved the respondent's fee at the rate of 2.33% of the estimated cost. Consequently, Ext.R1(e) agreement was executed on a stamp paper. However, the petitioner did not pay the amount in terms of the agreement. Therefore, Ext.R1(f) letter was issued. Numerous attempts were made by the respondent to get the fee which could not evoke any positive response and ultimately, the respondent approached the learned Ombudsman by filing Ext.P4 petition on which Ext.P5 order was passed. According to the respondent, the inaction on the part of the petitioner W.P.(C) No. 13986/2013 : 4 : amounts to mal administration as the petitioner has denied his deserving benefit. Therefore, Ext.P5 order is absolutely within the competence of the learned Ombudsman. 4. Arguments have been heard. 5. Though the writ petition is silent regarding the execution of the agreement between the petitioner and the respondent, Ext.R1(e) is not disputed. Reference to Ext.R1 (e) would show that the petitioner in unambiguous terms has accepted that the fee payable to the respondent is 2.33% based on the rough cost estimate. A schedule relating to the fee payable in tune with the progress of work is also shown in the agreement. But, despite this agreement and despite lapse of the time stipulated therein, the petitioner did not make the payment in terms of the agreement. 6. The learned counsel for the petitioner made a frontal attack on Ext.P5 on the ground that Ext.P4 complaint is not maintainable before the learned Ombudsman and the learned Ombudsman has no jurisdiction to entertain the W.P.(C) No. 13986/2013 : 5 : matter. According to the learned counsel for the petitioner, Ext.P4 is a pure monetary claim and therefore, the proper course open to the respondent is to approach a Civil Court. In support of his submissions, the learned counsel for the petitioner relied on two decisions of this Court reported in 2011(3) KLT 5 (John v. Changanacherry Municipality) and 2013(1) KLT 838 - (Kulukkalloor Grama Panchayath v. Ombudsman for Local Self Government Institutions) . There cannot be any quarrel against the propositions that the disputed claims for money cannot be entertained by the Ombudsman for Local Self Government Institutions. The decision of this Court reported in 2011(3 KLT 5 would indicate that if the claim for money is on account of an act of mal-administration, such a claim would lie before the learned Ombudsman. revoke 7. It is relevant to note that the agreement executed between the petitioner and the respondent has not been rescind by any of the parties. The petitioner has no case that the same is vitiated by fraud, undue influence, W.P.(C) No. 13986/2013 : 6 : misrepresentation, mistake etc. Since there is an existing valid contract, the parties are bound by the terms of the contract. Had it been rescind by any of the parties, of course, the remedy open to the other party is to approach a Civil Court either for getting the contract specifically performed or for the realisation of the damages. In such cases, disputed questions of fact would arise and it would be absolutely within the competence of the Civil Court to entertain such disputes. 8. A clear reading of the impugned order would reveal that a direction was given to the petitioner to honour the contract as the same was subsisting. The leaned Ombudsman has observed that the contract was not vitiated on any of the grounds mentioned in the Indian Contract Act and the same was substituted by yet another contract. Therefore, on admitted question of fact, the learned Ombudsman found that it is the duty of the petitioner Municipality to honour the terms of the contract. The arguments advanced by the leaned counsel for the W.P.(C) No. 13986/2013 : 7 : petitioner that the learned Ombudsman does not have the power to entertain the dispute, cannot be upheld. 9. Section 271(A) of the Kerala Panchayath Raj Act, 1994 deals with the functions of the Ombudsman. Section 271(K) of the Act deals with the powers of the Ombudsman. 271(J)(1) enable the Ombudsman to investigate into any allegation which takes in a case of mal administration by the local authority. Mal administration has been defined to mean action taken or purporting to have been taken in the exercise of administrative function in any case where such action, administrative procedure or practice governing such action is unreasonable, unjust, oppressive, discriminatory or nepotic and will make illegitimate, gain or loss or will deny deserving benefits. In the instant case, the petitioner Municipality has clearly denied the petitioner's benefit namely, the fees for the work rendered by him. In this view of the matter, Ext.P5 order passed by the learned Ombudsman is well within its jurisdiction and there is no merit in the contentions raised by the learned counsel for W.P.(C) No. 13986/2013 : 8 : the petitioner that the learned Ombudsman is not having any jurisdiction to entertain the matter. 10. The Apex Court in its decision in Balvantrai Chimanlal Trivedi v. M.N. Nagrashna and others - 1960 SC 1292 has observed that it is not unknown to law that the decisions of original courts and tribunals may be allowed to stand even though there may be some doubt as to the jurisdiction of such courts or Tribunals. As an example, it was pointed out that there are provisions in the revenue laws where in case of doubt whether the civil court or the revenue court has jurisdiction, the decision of the original court is allowed to stand in certain circumstances if there has been no failure of justice. 11. In this case also, this Court is of the definite view that there was no substantial failure of justice on account of the consideration of Ext.P4 application by the learned Ombudsman. In fact it has only advanced cause of justice. In spite of the technical pleas raised by the petitioner Municipality in their challenge against Ext.P5, the writ W.P.(C) No. 13986/2013 : 9 : petition is liable to be rejected. The challenge against Ext.P5 is bound to fail since there is no justification in the stand taken by the petitioner. Therefore, this writ petition is dismissed. No costs. sd/- A. V. RAMAKRISHNA PILLAI, JUDGE. rv W.P.(C) No. 13986/2013 : 10 :