Kottayam Municipality V. Kodur House Plot Owners Association and Thomas Thomas @ Thampy

WA/714/2014

AI Insights

The case involves Kottayam Municipality appealing against a judgment that mandated them to fulfill their obligations to provide basic civil amenities in a housing colony developed by them. The colony's residents, represented by the Kodur House Plot Owners Association and an individual, had initially filed a writ petition due to the Municipality's failure to provide these amenities, which were part of the sale conditions agreed upon in 1994. The single judge's decision in 2012 ordered the Municipality to meet these obligations within six months. However, by 2017, the Municipality had not complied, citing financial constraints. The Division Bench upheld the original judgment, extending the deadline for compliance by an additional nine months and rejecting the Municipality's excuses as insufficient.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 689927 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 30-03-2017
• Assessment Year: misc
• Other Referred Cases: All India Groundnut Syndicate v. I.T. Commr., Bombay [AIR 1954 Bombay Page 232]
• Result in Favour of: Respondent
• Court: HIGH COURT
• Department Lawyers: K BABU; M VIJAYALAKSHMI; BRIJESH MOHAN
• Assessee Lawyers: S RANJIT; GOKUL V V H
• Keywords: Contractual Obligation; Mandamus; Statutory Duty; Municipality Obligation; Civil Amenities

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR.JUSTICE ANTONY DOMINIC THURSDAY, THE 30TH DAY OF MARCH 2017/9TH CHAITHRA, 1939 WA.No. 714 of 2014 IN WP(C).19978/2008 ------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 19978/2008 of HIGH COURT OF KERALA DATED 30.11.2012 ------- APPELLANT/RESPONDENT: ----------------------------- KOTTAYAM MUNICIPALITY, KOTTAYAM, REP. BY ITS SECRETARY. BY ADVS.SRI.S.RANJIT (KOTTAYAM) SRI.GOKUL DAS V.V.H. RESPONDENTS/PETITIONERS: --------------------------------- 1. KODUR HOUSE PLOT OWNERS ASSOCIATION REG. NO.K 733, BUILDING NO.320, WARD NO.7, KODIMATHA PO. KOTTAYAM PIN - 686002. REP. BY ITS SECRETARY, M.S. PRAMOD KUMAR. 2. THOMAS THOMAS @ THAMPY, THAIPARAMBIL HOUSE, KODIMATHA PO, KOTTAYAM - 686 002. R1 & 2 BY ADV. SRI.K.JAJU BABU (SR.) R1 & 2 BY ADV. SMT.M.U.VIJAYALAKSHMI R1 & 2 BY ADV. SRI.BRIJESH MOHAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: NAVANITI PRASAD SINGH, C.J. & ANTONY DOMINIC, J. ------------------------------------------------ W. A. No.714 of 2014 ------------------------------------------------ Dated this the 30th day of March, 2017 JUDGMENT Navaniti Prasad Singh, C.J. 1. aThe present appeal is by Kottayam Municipality against the judgment dated 30.11.2012 passed in W.P.(C) No.19978 of 2008. 2. It appears that the writ petitioners who were respondents herein had applied for and were alloted plots of land for housing purposes in a colony being developed by the Kottayam Municipality. The colony by nature of things had to have basic civil amenities, i.e., road, water, electricity, drainage. These were the obligations of the Municipality. These obligations were acknowledged and were part of the sale conditions. These transactions took place in the year 1994. The writ petitioners waited and when they found that the Municipality was virtually doing nothing, they C. R. W. A. No.714 of 2014 -2- approached this Court. 3. The learned single Judge, by the judgment under appeal, having heard the parties and noticed the fact, issued Mandamus to the Municipality to meet its obligation of building and maintaining the road and other utilities within a period of six months. 4. That was in November, 2012. We are in March, 2017. Virtually nothing has been done by the Municipality on the plea that if the work were to be done by the Municipality now, it would cost more than the price they receive on sale of the plots and the Municipality now lacks the wherewithal to do what they have promised. In our view, those are no excuse to wriggle out of, not only the contractual obligation, but also the statutory duty of the Municipality as a coloniser. In 1994 itself, when the Municipality decided to sell the plots and develop the areas as a colony, it knew of its obligations. Having slept for almost 20 years, they cannot cry against inflation and their inability to perform their own responsibility. W. A. No.714 of 2014 -3- 5. In this connection, we refer to the judgment of Bombay High Court in All India Groundnut Syndicate v. I.T. Commr., Bombay [AIR 1954 Bombay Page 232]. The relevant portion of the judgment is extracted below: “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S. 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person—we take it that the income-tax Department is included in that definition—can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.”” 6. It is thus, clear that the Municipality wants to take advantage of its own default. Having not worked for 20 years, they cannot now say that we are not in a position to do the work. It is virtually a part and parcel of their fundamental duty as a Municipality apart from contractual W. A. No.714 of 2014 -4- liability. All we can do is to extend time as granted by the learned single Judge which itself has expired more than five years back. Accordingly, we extend the time by nine months and direct that the Municipality would complete the work by December this year positively and there shall be no excuse for any delay. The writ appeal is disposed of as above. Sd/- NAVANITI PRASAD SINGH CHIEF JUSTICE Sd/- ANTONY DOMINIC JUDGE kns/- //TRUE COPY// P.S. TO JUDGE W. A. No.714 of 2014 -5- "