Dismissed

State of Kerala v. K.Muhammed Ali

Kerala HC15 Jun 2012RSA/78/2012

Case brief

AI extract

What is this about?

This appeal challenged the decree granting recovery of costs for additional water supply work executed by the respondent. The High Court held that despite lack of a supplemental agreement, the additional work was done under official knowledge, was necessary, and its benefits were enjoyed by the appellant. Thus, withholding payment constituted unlawful enrichment, and the appeal was dismissed.

What did the court decide?

Recovery of `1,78,339/- with interest granted to respondent in first appellate court.

State of Kerala Vs K.Muhammed Ali — Contract and Commercial Disputes | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 15TH DAY OF JUNE 2012/25TH JYAISHTA 1934S

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RSA.No. 78 of 2012 () --------------------AS.54/2009 of III ADDL. DISTRICT COURT, KOZHIKODE OS.300/2007 of II ADDL.SUB COURT,KOZHIKODE

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APPELLANTS/RESPONDENTS/DEFENDANTS:

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STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION CALICUT-20. 2. BLOCK DEVELOPMENT OFFICER KODUVALLY BLOCK DEVELOPMENT OFFICE P.O.KODUVALLY KODUVALLY AMSOM DESOM, KOZHIKODE TALUK.

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BY GOVERNMENT PLEADER: ADV.LILLY LESLIE

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RESPONDENT/APPELLANT/PLAINTIFF:

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K.MOHAMED ALI S/O. KOYAMU HAJI, CONVENER MPLADS WATER SUPPLY SCHEME KULIRANTHIRI PULIKKAPOYIL, KIZHAKKOTH PANCHAYATH KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN BY ADV. SRI.P.A.HARISH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A.No.78 of 2012

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Dated this 15^th day of June, 2012

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JUDGMENT

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Defendants in O.S.No.300 of 2007 of the Court of learned second Additional Sub Judge, Kozhikode are aggrieved by the decree granted in favour of the respondent/plaintiff by the learned third Additional District Judge, Kozhikode in A.S.No.54 of 2009 and have preferred this second appeal.

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Respondent/plaintiff was the Convener of a beneficiary committee for execution of work of water supply scheme under the Member of Parliament Development Scheme. First appellant gave sanction for the work. An agreement was executed between the respondent and appellants on 19.03.2001. The approved estimate for the work was .8,00,000/-. As per the agreement the work was to be completed within six months. According to the respondent, the work could not be completed within that time due to the laches of appellants but he completed the work though beyond the prescribed time and presented the final bill on 08.03.2006. The bill was honoured less the sum of .1,78,339/-. That amount was deducted by the appellants for the reason that the said amount was spent by the respondent without

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R.S.A.No.78 of 2012

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authorisation and without a supplemental agreement executed between the parties. According to the respondent the additional work he had done was necessary for the effective supply of water and it was done with the knowledge and consent of the appellants. Hence respondent filed the suit for recovery of `.1,78,339/- with interest.

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Appellants contended that the said amount is not payable since the claim related to additional work done by the respondent unauthorisedly and without a supplemental agreement executed between the parties.

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Trial court accepted the plea of appellants and dismissed the suit. Appellate court took a different view of the matter. It held that the trial court had held that the delay in completion of the work was due to the laches of the appellants and there was no challenge to that finding in the first appellate court. A further finding the first appellate court entered is that respondent did the additional work under the supervision of the engineers and other officials of the department concerned and that too, to their satisfaction. There was no case of any defect or insufficiency in the additional work done by the respondent. The additional work was done by the respondent for the proper

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R.S.A.No.78 of 2012

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supply of water as per the scheme. There was the evidence of respondent as PW1 that he did the additional work as directed by the officials of the department. In the above circumstance, first appellate court held that respondent is entitled to get cost of the additional work he has done - `.1,78,339/- and accordingly a decree for realisation of that amount with interest was granted.

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Learned Government Pleader has contended with all vehemence that in the absence of a supplemental agreement executed between the parties, appellants have no responsibility to pay the cost of additional work. It is also the contention of learned Government Pleader that the additional construction done was without authorisation.

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Assuming that no supplemental agreement was executed, that does not, on the facts and circumstances of this case absolve the liability of appellants to pay cost of construction to the respondent. As found by the courts below there was no dispute that the additional work was done in connection with the construction of water tank for the supply of water. The additional works done by the respondent are, construction of rivetment for the well (obviously for protection of the well), putting up the water tank at a higher level (to ensure proper and equal

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R.S.A.No.78 of 2012

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distribution of water to the beneficiaries) and raising the level of the steps to the water tank (on account of raising the level of the water tank). There could be no doubt that the additional work was necessary for proper supply of water.

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It is also not disputed that the additional work done are still there and its benefit is being enjoyed by the department. In such a situation, it is hard for the appellants to say that the work done is unauthorised and hence respondent is not entitled to get the cost of construction.

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As per the evidence of respondent (PW1) it was in the presence and to the knowledge of the engineers and other officials of the department that the additional work was done. There is no reason to think that the officials were unaware of it or that the additional work was done by the respondent on his own, or at his risk. It is difficult to think that the additional work was done by the respondent clandestinely so that it was unnoticed by the officials of the department who otherwise should have been to the spot some time alteast, to supervise the work. At any rate, the benefits of the additional works is being enjoyed by the department. If without payment of the cost for that appellants are allowed to enjoy the benefits, that would amount to unlawful

R.S.A.No.78 of 2012

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enrichment.

There is no case or reason to think that respondent has done the additional work gratuitously. Therefore respondent is entitled to be paid for the work he has done. First appellate court has, for cogent reasons found in favour of the respondent. Appellants were not justified in withholding the sum of `.1,78,339/-. The decision of the first appellate court is with reference to the facts and evidence on record and in accordance with the principles of justice and equity which involves no substantial question of law.

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The second appeal is dismissed.

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(THOMAS P. JOSEPH, JUDGE)

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Sbna/-

State of Kerala v. K.Muhammed Ali

Case brief

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State of Kerala v. K.Muhammed Ali

Case brief

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