IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 WP(C).No. 2543 of 2011(P) ------------------------- PETITIONER: --------------- E.K.ABDUL SALAM, AGED 47 YEARS, KARUKUNNATHU HOUSE, PERINGALA P.O. KUMARAPURAM, ERNAKULAM, PIN - 683 358 BY ADV. MR.PAUL K.VARGHESE RESPONDENTS: --------------- 1. THE KOTTAYAM MUNICIPALITY, MUNICIPALITY BUILDING, KOTTAYAM, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM ADV. MR.SIBY MATHEW FOR R1 & 2 MR.PHILIP J.VETTICKATTU FOR R1 & 2 MR.B.PREMNATH (E) FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2543 of 2011(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: CERTIFICATE ISSUED BY GARRISON ENGINEER (1) NW, FORT KOCHI TO THE PETITIONER DTD. 11.12.2009. EXT.P2: CERTIFICATE ISSUED BY GCDA TO THE PETITINER DATED 1.11.2008. EXT.P3: AGREEMENT BETWEEN THE PETITIONER AND THE RESPONDENT DTD. 29.12.2007. EXT.P4: STATEMENT SHOWING THE DESCRIPTION OF THE WORK DTD. 29.12.2007. EXT.P5: LETTER ISSUED BY THE PETITIONER TO THE RESPONDENT MUNICIPALITY DTD. 12.3.2010. RESPONDENTS' EXHIBITS: NIL ...... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.2543 Of 2011 ---------------------- Dated this the 18th day of August, 2011. J U D G M E N T The writ petition is filed for a direction commanding the respondent Municipality to disburse a sum of Rs.16 Lakhs for the work done by the petitioner within a time frame to be fixed by this Court and for a direction to return a sum of Rs.4.35 Lakhs and Rs.1 Lakh withheld by the respondents on the head of the retention amount and security deposit respectively. 2. Construction of Slaughter House at Kodimatha was awarded to the petitioner for a sum of Rs.1,21,21,638/-. An agreement has been executed between the petitioner and the respondent Municipality with respect to the work. According to the petitioner he has completed 90% of the work. The petitioner pointed out that he had availed loan from third parties at huge rate of interest and completed 90% of the work, but, the Municipality failed to pay the money in respect of the work done by him though they took measurement and completed all the formalities. ::2:: W.P.(C).No.2543 Of 2011 3. The grievance of the petitioner is that the Municipality is unauthorisedly retained the retention amount, security deposit and the balance amount for the work completed and failed to release the amount in spite of repeated request. Ext.P5 is the notice dated 12.3.2010 calling upon the respondent Municipality to pay a sum of Rs.16 Lakhs for the work completed, Rs.4.35 Lakhs towards retention amount and Rs.1 Lakh security deposit totalling to Rs.21,35,000/-. Learned counsel for the petitioner also pointed out that in the communication No.PW2-15531/87 dated 25.6.2009 the Municipality directed the petitioner to complete the work without further delay and further informed that if the petitioner wants extension of time that will be granted only imposing fine. 4. In the counter affidavit filed by the respondent Municipality, the material averments in the writ petition are denied. It is contended by the Municipality that as per the terms of agreement he had to complete the work by 30.6.2009 and that at the request of the petitioner the time for completion of the work was extended up to 31.1.2010. It is admitted that the work ::3:: W.P.(C).No.2543 Of 2011 was tendered for an amount of Rs.1,21,21,638/-. According to the Municipality, the petitioner completed the work for a sum of Rs.53,49,657/-. This amounts to only 40% of the work undertaken by the petitioner. It is also pointed out that the work assigned to the petitioner was not completed due to his own latches and that the petitioner is responsible for the non-progress of the work. In short, the contention of the respondent is that without completing the work undertaken by the petitioner, he has no right to demand the payment. 5. The averments regarding the reason for non- completion of the work by the petitioner is denied by the respondent Municipality. The facts alleged are disputed. In these circumstances, this Court is not in a position to adjudicate the question of facts in a proceedings under Article 227 of the Constitution of India. 6. Since the parties disputing upon the terms of agreement, it is open to the parties to approach the appropriate forum; at the same time the matter can be settled by negotiation. That can be resorted to for settling the disputes. ::4:: W.P.(C).No.2543 Of 2011 Ext.P5 is the notice issued by the petitioner calling upon the Municipality to pay the amount due to the petitioner. The notice shall be treated as a representation and the respondent shall consider the grievance of the petitioner and pass appropriate orders. Accordingly, the writ petition is disposed of with a direction to the respondent Municipality to consider and pass appropriate orders on Ext.P5 request within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. The petitioner shall also produce the copy of the communication dated 25.6.2009 before the 2nd respondent for appropriate action. HARUN-UL-RASHID, Judge. bkn/-