IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 22665 of 2008(W) --------------------------------------- PETITIONER(S): ---------------------- M. HANEEFA, KUREEKATTIL HOUSE, CHITTUR WARD, PATHANAMTHITTA. BY ADV. MR.S.A.RAZZAK RESPONDENT(S): ------------------------ 1. PATHANAMTHITTA MUNICIPALITY, (CHAIRMAN & STANDING COMMITTEE FOR PUBLIC WORKS) MUNICIPAL OFFICE, PATHANAMTHITTA, 689 645. 2. SECRETARY, PATHANAMTHITTA MUNICIPALITY, MINICIPAL OFFICE, PATHANAMTHITTA, 689 645. R1 & R2 BY ADV. MR.V.K.SUNIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 22665/2008-W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE WORK ORDER NO.E1.14096. EXT.P2: COPY OF THE WORK ORDER NO.E1.14111. EXT.P3: COPY OF THE WORK ORDER NO.E1.14112. EXT.P4: COPY OF THE WORK ORDER NO.E1.14133. EXT.P5: COPY OF THE WORK ORDER NO.E1.14198. EXT.P6: COPY OF THE AGREEMENT FOR EXT.P1. EXT.P7: COPY OF THE REPORT DATED 24/01/2008. EXT.P8: COPY OF THE 2ND RESPONDENT'S ORDER DATED 05/04/2008. EXT.P9: COPY OF THE APPAEAL TO R1, DATED 04/05/2008. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE CAUSE NOTICE DATED 04/12/2007 ISSUED TO THE THEN MUNICIPAL ENGINEER. EXT.R1(b): COPY OF THE REPLY SUBMITTED BY THE THEN MUNICIPAL ENGINEER TO EXT.R1 (a). //TRUE COPY// P.A. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------- W.P(C).No.22665 OF 2008 ------------------------------------- Dated this the 3rd day of November, 2009 J U D G M E N T ~~~~~~~~~~~~~~ The petitioner was awarded five contracts by the 1st respondent Municipality. According to him, he completed those works and submitted completion report. He states that an amount of Rs.6,62,000/- (Rs. Six lakhs sixty two thousand only) is due to him on the basis of that. He moved this Court on the ground that in terms of the provisions of the Kerala Municipality (Execution of Public Works and Purchase of Materials) Rules, 1997 (herein after referred to as 'the Rules'), the respondents are duty bound to release the amount having regard to the fact that in terms of Rules 14 and 15, the control and supervision as also the check measurement etc. are statutory duties. It is pointed out that under Rule 15(7) a time bound finalisation of the measurement and check measurement are prescribed. He accordingly states that he is entitled to payment within a time frame in terms of those statutory provisions. 2. The 1st respondent/Municipality filed a counter affidavit through its Secretary. It accuses its Engineers for dereliction of duty and lack of supervision. It is also contended that two lorry loads of bitumen W.P.(C) No.22665/2008 2 were left without proper accounting. Later, the 1st respondent filed an additional counter affidavit in the light of the reply affidavit. By the time, the Secretary of the Municipality had changed. The said officer not only vouch-safes the earlier counter affidavit but, even elaborate further and proceeds to state that the Municipal Engineer and the Engineer-in-charge of the work had actually a dubious role to play. It is also pointed out that disciplinary proceedings were taken, though one later demitted service on superannuation after revocation of suspension from service. 3. With the aforesaid material, even if I were to take that a contract of this nature is governed by statutory rules, it may not be appropriate to give the petitioner relief in this case by concluding the matter finally because, the issues on the basis of the pleadings raise disputed questions of facts. These include the questions as to whether the work was completed to the satisfaction of the respondents; whether the entire work was done utilising materials supplied by or under the control of the respondent Municipality and also whether any material that was meant for the work was left, unused or taken off. It is quite intriguing that the officer involved was permitted to retire from service on superannuation. The fact of the matter remains that even, as if now, there are no other W.P.(C) No.22665/2008 3 proceedings against the officers, who had a statutory duty to supervise the work. 4. Taking the aforesaid factors into consideration, I do not deem it appropriate for this Court to compel the 1st respondent Municipality to pay the amount without proper adjudication by a competent court or other duly constituted authority. This judgment will not stand in the way of the Municipal Committee considers Ext.P9 appeal of the petitioner and also his request for release of fund even on furnishing appropriate security to the satisfaction of the Municipal Committee. Let that appeal be disposed of within a period of two months from the date of receipt of a copy of this judgment, untrammelled by anything recorded in the judgment as regards the controversies on facts. The Writ Petition is ordered accordingly. THOTTATHIL B.RADHAKRISHNAN, Judge ps