Allowed

Badaruddeen. K.K v. Kanhangad Municipality

Kerala HC16 Sept 2022WP(C)/30682/2013

Case brief

AI extract

What is this about?

The Court allowed a writ petition contesting non-payment of dues for trenching work. It held that the work was over 95% complete and approved by an all-party meeting, invalidating the Municipality's refusal based on an earlier internal report lacking Council approval. The petitioner was directed to receive the balance amount.

What did the court decide?

Directed the 1st respondent to pay Rs. 7,50,000/- along with interest at 8% p.a. from 24.01.2012 till the date of payment.

Badaruddeen. K.K Vs Kanhangad Municipality — Contract and Commercial Disputes | Kerala HC (2022)

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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 C. JAYACHANDRAN
FRIDAY, THE 16TH DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944
WP(C) NO. 30682 OF 2013

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PETITIONER:

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BADARUDDEEN. K.K
AGED 38 YEARS
S/O YUSUF, K.K. HOUSE, VADAKARAMUKKUM, KANNUR DISTRICT
BY ADVS.
SRI.M.RAMESH CHANDER (SR.)
SRI.ANEESH JOSEPH
SMT.DENNIS VARGHESE

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RESPONDENT:

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KANHANGAD MUNICIPALITY
KANHANGAD 671315, KASARAGOD DISTRICT REPRESENTED BY ITS
SECRETARY

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BY ADV SRI.T.K.VIPINDAS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 30682 OF 2013

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JUDGMENT

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Pursuant to the tender issued by the 1^st respondent Municipality, the work of removing waste from the trenching ground was given to the petitioner/Contractor vide Ext.R1(a) work order dated 25.06.2011. The period stipulated for performance was one month. This period was however subsequently extended by the 1^st respondent Municipality. According to the learned counsel, on 24.01.2012, the entire work was completed. However, the payment due to him, to the tune of Rs.15 lakhs, was not paid by the 1^st respondent Municipality. Instead, a sum of Rs.6.61 lakhs alone has been paid. The payment was withheld on the strength of Ext.R1(i) document, wherein, the Junior Health Inspector attached to the Municipality has reported that the old waste in the trenching ground has not been removed fully. In answer to the stand of the Municipality, the petitioner propounded Ext.P4, which is the minutes of the meeting of the governing council of the Municipality, wherein it is certified that 95 percentage of the work has been completed, which fact has been taken note of in the said meeting.

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Having regard to the limited compass of

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WP(C) NO. 30682 OF 2013

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controversy, it is not necessary to narrate in detail the respective pleadings of the parties. This Court will straight away refer to Ext.P4 minutes, wherein it is recorded thus.

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"തീരു മാനം /മിനു റസ ് റ 24.09.201-ലെ�ലെ�ൽത ് തസ്റ്റാന്റിംഗ്കമ്മിറ്റിയുലെ� റിപ്പ�ാർട്ടിലെന്റ അ�ിസ്ഥാനത്തിൽ �്ലെരഞ്ചിങ്‌ ഗ്രൗണ ് പരിപ്പ'ാധിച. ് ച സ്ഥ� പരിപ്പ'ാധനയുലെ� അ�ിസ്ഥാനത്തിൽ ആപ്പരാഗ്യ സ്റ്റാന്റിംഗ് കമ്മിറ്റിയുലെ� നിഗമനം ലെ'രിയാലെ+ന ് പ്പ-ാധ്യലെ�ട്ടു . ആയതനുസരിച ് ചപ്രവൃത്തി 95% പൂർത്തീകരിച്ചിട്ടുള്ള വിവരം ലെ�ൻഡർ കക്ഷിലെയ വിളിച്ചു പ്പനരിട്ടറിയിക്കാനും കൗ+്സി�ിപ്പനാ�് വിവരം'ുപാർ' ലെചയ്യാനുംതീരുമാനിച്ചു .”

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This Court also takes note of the contents in

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Ext.R1(i).

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“submitted 05.03.2012 ലെചമ്മട്ടംവയൽ �്ലെരഞ്ചിങ് ഗ്രൗണ്ടിൽ '്രീ.കുഞ്ഞിരാമലെനാ�ം പരിപ്പ'ാധന ന�ത്തി. പഴകിയമാ�ിന്യംപൂർണ്ണമായുംനീക്കം ലെചയ്തിട്ടി�്� എന്നുകാ+ുന ് ആയതിലെന്റ ചിത്രങ്ങൾഇപ്പതാലെ�ാ�ംസമർ�ിക്കുന്നു . അനന്തര ന�പ�ികൾക്കുംഉത്തരവിനുമായി.”

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It is relevant to note that Ext.R1(i) is dated 05.03.2012, whereas Ext.P4 is dated 10.12.2012. Therefore,

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going by the very showing as per the document of the Municipality vide Ext.P4, what stands established is that 95 percent of the work allotted to the petitioner has already

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been executed/performed. The amounts due to the petitioner by virtue of Ext.R1(a) work order cannot be withheld on the strength of Ext.R1(i), which is prior in point of time and which does not contain any indication as to who submitted the same, to whom. All what is decipherable from Ext.R1(i) is that it is in the letter head of the 1^st respondent Municipality.

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Learned counsel for the respondent raised a technical contention based on Sections 22(1)(l) and 22 (3) of the Kerala Municipality Act, 1994. According to the learned counsel, the Municipal Council has not approved that the petitioner had completed 95% of the work allotted to him, in the absence of which, the petitioner cannot claim the amount due under Ext.R1(a) work order. This court finds little merit in the said contention. Section 22(1)(l) stipulates that the standing Committee for health shall deal with the matters of public health, health services, sanitation etc. A perusal of Ext.P4 minutes would indicate that the report of the Health Standing Committee dated 24.09.2012 has been reckoned and the trenching ground was inspected pursuant to the same. There is further reference in the minutes that

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WP(C) NO. 30682 OF 2013

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the conclusions arrived at by the Health Standing Committee was correct and it is accordingly, that the all party meeting held on 10.12.2012 took note that 95% of the work has been completed by the petitioner. This Court therefore finds that the 1^st respondent Municipality cannot be gainsaid by propounding Section 22(1)(l) of the Act.

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It is true that Section 22(3) mandates the resolutions passed by the Standing Committee to be placed before the Council and that the Council have the power to modify the same, if necessary. No record has been produced before this Court to show that the Municipal Council has not accepted the recommendation of the all party meeting of the Municipality, including the steering Committee, as regards the completion of 95% of the work allotted to the petitioner. That apart, in respect of a work order dated 25.06.2011, is it open for the respondent Municipality to come and submit at this point of time that the amount is not liable to be disbursed for want of approval by the Municipal Council? The answer which occurs to the mind of this Court is an emphatic 'no'. The said contention of the respondent Municipality is therefore rejected. Once the Municipality had extracted work

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WP(C) NO. 30682 OF 2013

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from the petitioner, needless to say that the petitioner should be compensated.

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In these circumstances, this writ petition is only to be allowed.

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The further point which requires to be addressed is the entitlement of the petitioner for interest in respect of the balance amount due. Learned counsel relied upon the judgment of this Court in WP(C) No. 6164/2010, wherein the learned single Judge has relied upon a judgment of the Hon'ble Supreme Court in Alok Shankar Pandey v. Union of India and Others [2007 (3) SCC 545] as also, a Division Bench judgment of this Court, to ultimately grant interest at the rate of 8% p.a. This Court has also perused the judgment in Alok Shankar Pandey, wherein interest at the rate of 12% is seen given. Having regard to the overall facts and circumstances, as also, the rates of interest which prevailed during the period from 2012-2015, this Court is of the opinion that interest at the rate of 8% p.a. would meet the interests of justice.

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Accordingly this Court allows the writ petition, directing the 1^st respondent Municipality to pay a sum of

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WP(C) NO. 30682 OF 2013

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Rs.7,50,000/-, together with interest at the rate of 8% p.a. from 24.01.2012 till the date of payment. It is clarified that amount of tax, if any, liable to be deducted from the said sum of Rs.7,50,000/-, as per law, can be effected.

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 sd/-

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C. JAYACHANDRAN

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JUDGE

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Nsd

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WP(C) NO. 30682 OF 2013

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APPENDIX OF WP(C) 30682/2013

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PETITIONER EXHIBITS

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EXHIBIT P1 PHOTOSTAT COPY OF THE REPLY GIVEN
BY THE PETITIONER ON 27-05-2013

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EXHIBIT P2 PHOTOSTAT COPY OF THE
COMMUNICATION SENT TO THE RESPONDENT WITH
COPY TO THE CHAIR PERSON

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EXHIBIT P3 A PHOTOSTAT COPY OF THE RESOLUTION
PASSED BY THE STANDING COMMITTEE ON 24-09-
2012

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EXHIBIT P4 THE PHOTOSTAT COPY OF THE
RESOLUTION PASSEDON 10-12-2013

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EXHIBIT P5 A PHOTOSTAT COPY OF THE
APPLICATION SUBMITTED BEFORE THE RESPONDENT

Badaruddeen. K.K v. Kanhangad Municipality

Case brief

What is this about?

What did the court decide?

Badaruddeen. K.K v. Kanhangad Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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