Emergency provisions under Section 15(4) of the Kerala Municipality Act allow a Chairperson to authorize urgent work without prior council approval, ensuring public safety.

JUDGMENT :

MURALEE KRISHNA, J.

1. This is an appeal filed under Section 5(i) of the Kerala High Court Act, 1958, by respondents 1 and 2 in W.P. (C) No. 30648 of 2012 against the judgment of the learned Single Judge dated 29.02.2024 in the writ petition.

2. The 1^st respondent herein is a PWD contractor, who successfully secured the construction work of the first Phase of ‘Kothamangalam Municipal Bus Stand’ from the 1^st appellant Municipality, by quoting the lowest rate and subsequently by reducing it on negotiation. Accordingly, Ext.P1 agreement dated 09.03.2009 was entered into between the 1^st respondent and the Municipality. According to the 1^st respondent, the work could not be commenced immediately after the execution of Ext.P1 agreement due to reasons beyond his control. The initial work, such as the excavation of soil, was done under the supervision of the Assistant Engineer of the 1^st appellant. At that time, it was found that against the total quantity of 660 M³ earth work excavation specified in the schedule to the agreement, around 13000 M of earth work excavation had to be done. Similarly, it was found that since hard rock was noticed beneath the soil, around 5000 M³ of rock blasting had to be done at the site. The Assistant Engineer reported this to the Municipal Engineer, who in turn reported the same to the 2^nd appellant Secretary and subsequently, the matter was placed before the Chairperson of the 1^st appellant Municipality. The then Chairperson of the 1^st appellant Municipality granted sanction for carrying out earth work excavation of 13900 M³ and medium rock blasting of 1900 M³ by the 1^st respondent as extra items by invoking the emergency power conferred on him under Section 15 (4) of the Kerala Municipality Act, 1994 (the ‘Municipality Act’ in short).

2.1. According to the 1^st respondent, he immediately commenced the said additional works and carried on earth excavation of 12417 M³ and medium rock blasting of 1894 M³ at the site. Meanwhile, the Municipality entrusted the removal of hard rock from the site to third parties. At that juncture, the Department of Mining and Geology directed the Municipality to stop the quarrying work and to remit an amount of Rs.21,000/- towards royalty and fine for the granite quarried. In spite of repeated requests by the 1^st respondent, the Municipality did not take any steps to recommence the work. Meanwhile, the contract period for completion of the work expired on 09.03.2010. Though the 1^st respondent submitted Ext.P7 request, dated 07.07.2011 to the 2^nd appellant to take appropriate steps for re-commencing the work after extending the period of contract or to relieve him of the subject work after paying the amount due to him, no response was followed. Hence, the 1^st respondent approached this Court by filing W.P. (C) No. 29403 of 2011, which was disposed of by Ext.P8 judgement dated 11.11.2011, directing the 2^nd appellant to consider and pass orders on Ext.P7 request within a time frame. Thereafter, as per Ext.P13 resolution dated 13.09.2012 of the Municipal Council, the 1^st respondent was decided to be relieved from the work. It was further resolved by the Council not to grant payment to the 1^st respondent for execution of the aforesaid two extra items of work and also resolved to recover from him the cost of earth that was removed from the site. Hence, the 1^st respondent filed the writ petition seeking the following reliefs:

“(i) To issue of Writ of Certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P13 and quash the same to the extent it resolves not to grant payment to the Petitioner for the execution of the two extra items of work in question and also to recover from the Petitioner the cost of the earth that was removed from the site at 2007 schedule of rates.

(ii) To declare that since the Petitioner has executed the two extra items of work in question on the basis of the sanction granted by the Chairperson of the 1^st Responde