Pala Municipality v. James Kappan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 14TH DAY OF JULY 2014/23RD ASHADHA, 1936 WA.No. 884 of 2014 IN WP(C).13986/2013 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 13986/2013 DATED 11-04-2014 ............... ## APPELLANT/PETITIONER : ----------------------------- PALA MUNICIPALITY, PALA, KOTTAYAM DISTRICT, PIN-686 575 REPRESENTED BY ITS SECRETARY. BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT/RESPONDENT : --------------------------------- SHRI.JAMES KAPPAN, KAPPIL HOUSE, LALAM P.O., PALA KOTTAYAM DISTRICT, PIN-686 575. BY ADV.SRI.MATHEW JOHN (K) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, C.J. & P.R. Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## W.A. No. 884 OF 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of July, 2014 ## **JUDGMENT** ## **Manjula Chellur, C.J.** Heard learned counsel for the appellant. We have gone through the judgment of learned Single Judge as well as documents relied upon by learned counsel appearing for appellant. 2. Appellant before us is a local body, i.e. Pala Municipality. The respondent entered into an agreement with the appellant herein to prepare plan, estimates, structural designs for the proposed lorry parking cum shopping complex at Thekkekara. It is not in dispute that right from 2006 onwards there was correspondence between the parties and ultimately an agreement between the parties came to be executed as per Ext.R1(e) on 24.06.2006. The correspondence between the parties clearly indicates that once the plan, structural designs for the ground floor, first floor and second floor of the complex was submitted way back in 2007 which came to be received and W.A. No.884 of 2014 ## -:2:- approved by the council of the Municipality and for some reason, again there was a request to revise the plan at the instance of appellant Municipality as could be seen from the correspondence between the parties. Ultimately, as per Ext.R1(i) dated 25.02.2009, the respondent had submitted revised design in respect of ground floor, first floor etc., and the same was acknowledged by acknowledgment dated 16.03.2009, which is marked as Ext.R1(j). Ext.R1(k) clearly indicates, on 23.04.2009, the primary design prepared by respondent associates was approved by resolution No.13 of appellant Municipality. Subsequently, when no payments came to be made, the respondent associate approached the Ombudsman by lodging a complaint, complaining mal-administration, i.e. as per Ext.P4. Ext.P5 is the order passed by Ombudsman. 3. According to respondent associates, the inaction on the part of writ petitioner Municipality is nothing short of mal-administration, because appellant Municipality has denied his benefits without any justification and such denial is unreasonable. As a matter of fact, according to writ petitioner/local authority, W.A. No.884 of 2014 ## -:3:- the dispute decided by Ombudsman warrants adjudication before a civil court as terms of contract between the parties had to be interpreted and then implemented, hence there was no jurisdiction for Ombudsman to entertain Ext.P4 petition. 4. Learned Single Judge, on going through the contents of Ext.R1(e), opined that it is not disputed between the parties that the appellant failed to make payments in accordance with the terms of agreement as and when the work progressed as per rates indicated in the agreement. Learned Judge, after referring to several decisions of this Court, i.e. **John v. Changanacherry Municipality** [2011(3) KLT 5] and **Kulukkalloor Grama Panchayat v. Ombudsman for Local Self Government Institutions** [2013(1) KLT 838], was of the opinion, the claim or the petition filed by respondent associates was entertained by Ombudsman in accordance with the procedure and the Act refers to mal-administration. 5. As could we seen from the correspondence, at no point of time, neither of the parties rescind the contract entered into between them. Subsequently, appellant authority never W.A. No.884 of 2014 ## -:4:- intimated the respondent associates that they have cancelled or withdrawn the agreement/contract entered with him as the work was not completed by him or he has failed to comply with any of the terms and conditions of the contract. When payments to be made as per terms of agreement came to a standstill, a complaint was lodged as per Ext.P4 which came to be entertained by Ombudsman. 6. It is not the case of appellant authority that totally denying or ignoring the instructions or intention of the authority, respondent associates went ahead with preparation of structural designs etc., without taking into consideration the view of the Municipality; on the other hand, correspondence indicates not once, but twice the plans were prepared and submitted for approval by the respondent. As a matter of fact, it came to be approved as indicated at Ext.R1(k). 7. In the light of such position, one has to see whether the complaint lodged at Ext.P4 would come within the definition of 'complaint' which again is referable to mal-administration. On perusal of Section 271F(1)(c) and (1)(e) of the Kerala Panchayat W.A. No.884 of 2014 ## -:5:- Raj Act it is clear that whenever a complaint or statement is lodged, alleging guilty of improper implementation or mal-administration, Ombudsman gets jurisdiction to entertain such petition. In order to understand whether Ext.P4 indicates one of the two required things at sub-section(c), one has to understand what exactly mal-administration means as per Section 271F(1)(e)(i) which read as under: “(e) 'maladministration' means action taken or purporting to have been taken in the exercise of administrative function in any case,- (i) Where such action, administrative procedure or practice governing such auction is unreasonable, unjust, oppressive, discriminatory, or nepotic and will make illegitimate, gain or loss or will deny deserving benefits; or (ii) Where there is wilful negligence or delay in taking such action, or the administrative procedure or method regulating such action will cause undue delay and includes the action leading to loss or waste or misuse of fund by mal-feasance or misfeasance.” 8. Reading of above definition clearly indicates, it is not only denial of benefits as pointed out by learned Single Judge, there is total unreasonableness without any justification W.A. No.884 of 2014 -:6:- on the part of appellant authority in denying the claim of respondent. It is not part of the contract that if technical sanction is not accorded, amounts would be payable at a particular rate or it could be denied to the respondent associates. Learned counsel appearing for appellant is fair enough to admit that there is no such term indicated in the contract at Ext.R1(e). 9. In the absence of such terms and conditions we fail to understand when they had accepted the rate at which it is payable to respondent associates, why they did not cancel the contract if they were not happy with the work done by the respondent associates. On the other hand, resolutions of appellant shows primary designs were acceptable to them. Once the respondent associates had worked as per the terms of contract in preparing the structural design etc. for the purpose of shopping complex cum lorry shelter, there is no justification for the appellant to deny such claim. Now appellant contends that they got the structural design prepared by another architect and he charged them only Rs.60,000/-. It is worthy to note that at no point of time such claim was made by appellant authority in ## W.A. No.884 of 2014 ## -:7:- denying the payment to the respondent associates. On the other hand, after a discussion as indicated in the correspondence, an agreement indicating the rates at which the fee has to be paid came to be entered into between the parties. In the light of above observations, we find no good reason warranting interference with the judgment of learned Single Judge. Accordingly, the appeal is dismissed. **Manjula Chellur, Chief Justice.** **P.R. Ramachandra Menon, Judge.** ttb/15/07