Research › Search › Judgment

Calcutta High Court · body

2025 DAILYLAW 3250 (CAL)

Raiganj Municipality v. Nandalal Saha

2025-07-14

Ajay Kumar Gupta, Rajasekhar Mantha

body2025
JUDGMENT : 1. Despite service of notice, the State is not represented. 2. Let the Principal Secretary, Department of Finance, Government of West Bengal be added as a party respondent to the instant proceedings. 3. Liberty is given to the advocate-on-record of the appellants to effect the amendment in course of the day. 4. The appeal is directed against an order dated 17 th April, 2025 whereby the Single Bench directed the Raiganj Municipality upon being furnished with necessary funds to pay the undisputed amount of Rs.79,56,000/- to the petitioner. 5. The writ petition itself was filed by the contractor against order dated 8 th December 2023 passed by the Principal Secretary, Municipal affairs, admittedly a substantial period of time after completion of the works. 6. The Raiganj Municipality admits that the work of construction by the Contractor/writ petitioner, involved building of roads, school buildings and other centers for the benefit of the municipal citizens of Raiganj. 7. It appears in no uncertain terms on record that the State and the Municipality are both equally liable for paying up for work obtained by a citizen contractor. Such right of the citizen emanates from Article 19(g) of the Constitution of India. 8. Neither the State nor the Municipality is unable to dispute or deny the claim of the contractor made till date. The stand of the Raiganj Municipality is that an erstwhile Chairman, without consulting the members of the Municipality has taken it upon himself to issue the work orders in question. The Municipality has lodged a criminal complaint against the said erstwhile Chairman with the local police and FIR was registered. Investigation was completed and charge sheet was filed only against the erstwhile Chairman one Mr. Mohit Sengupta. The trial resulted in an acquittal of the accused. 9. It is the long pendency of the trial that is cited a reason for the writ petitioner not to be able to raise his bill. Upon receipt of the bill, the Municipality forwarded the same to the Municipal Affairs Department of the State. 10. The Single Bench has recorded at two places in the impugned order that the completion certificate of the works undertaken by the writ petitioner/respondent No.1 has been issued. This is denied by the counsel for the appellants. 11. Upon receipt of the bill, the Municipality forwarded the same to the Municipal Affairs Department of the State. 10. The Single Bench has recorded at two places in the impugned order that the completion certificate of the works undertaken by the writ petitioner/respondent No.1 has been issued. This is denied by the counsel for the appellants. 11. This Court notes that if an incorrect recording of fact is made by a Court of law, it is the duty of the aggrieved party to apply before the Single Bench for correction of the order. There is no specific ground taken in the memorandum of appeal that no completion certificate was ever issued by the Municipality in favour of the appellant. 12. Upon the matter reaching the Municipal Affairs Department, the writ petitioner filed WPA 17176 of 2023 whereby the Single Bench of this High Court vide order dated 25 th September, 2023 directed the Principal Secretary, Department of Urban Development and Municipal Affairs to take a decision on the matter. A reasoned order was directed to be passed. Pursuant thereto the Principal Secretary, Government of West Bengal passed the order impugned in the writ petition dated 8th December, 2023 rejecting the claim of the petitioner. The following salient points appear from the order impugned in the writ petition. (a) That the prior approval of the concerned department of the State under the Municipal Affairs was not taken before initiating the works. (b) The Municipality was asked by the Principal Secretary to submit several documents namely appropriate resolutions for the works and schemes undertaken by the Municipality. (c) Did the Municipality take a decision to initiate the works? Whether prior administrative approval and financial sanction was obtained by the Municipality from the State. (d) Documents regarding issuance of e- tender, tender service against such schemes were required. (e) Whether separate work orders were issued against each work under each scheme. Copies of such work orders were required. (f) Whether bills were submitted by the writ petitioner against each scheme executed and undertaken by the writ petitioner. (g) Whether proper measurement books were maintained against each such scheme and executed under the supervision of the Municipal engineers. 13. None of the aforesaid documents were supplied by the Municipality despite two reminders by the Principal Secretary. The Principal Secretary, therefore, went on to decide the matter based on documents available with him. (g) Whether proper measurement books were maintained against each such scheme and executed under the supervision of the Municipal engineers. 13. None of the aforesaid documents were supplied by the Municipality despite two reminders by the Principal Secretary. The Principal Secretary, therefore, went on to decide the matter based on documents available with him. One such document referred to by the Principal Secretary is a completion certificate and an enquiry report by the Executive Engineer Dinajpur Division, Municipal Secretariat Directorate. 14. Based on the above, the Municipal Secretary simplicitor stated that since the Raiganj Municipality was responsible for issuing, initiating and obtaining completion of the process of the works entrusted to the writ petitioner, they alone are liable for meeting the demand of the writ petitioner. The State is not liable to pay the demand since the administrative approval was required under procedure established by law has not been completed. 15. Counsel for the Raiganj Municipality would argue that the sums obtained by the property tax collected from citizens is wholly absorbed in discharge of Municipal works like electricity, water, streetlights and drainage etc. To some extent salaries of its staff are also paid by the Municipalities. The scheme of the financial hierarchy and approvals in the State, indicate that it is the State who is liable to make payment of funds to the works executed by the contractor. 16. What has weighed with this Court in agreeing with the Single Bench is that the completion certificate of the works has been issued by the State. An authority under the State has conducted an enquiry. An official of the Municipal Affairs Department of the State, inter alia, has issued a report dated 16th May, 2019 which has clearly found that the work entrusted and undertaken by the petitioner have been completed. The State could not prove in the criminal trial against the erstwhile Chairman any of the allegations against him. Indeed, the State has preferred an appeal against the order of acquittal before this Court. 17. In the backdrop of the above facts, especially that the writ petitioner has completed works in question and has delivered the same to the satisfaction of the State Government, the State Government in terms of the principles of unjust enrichment, quantum meruit under Section 70 of the Contract Act is liable to the writ petitioner. 17. In the backdrop of the above facts, especially that the writ petitioner has completed works in question and has delivered the same to the satisfaction of the State Government, the State Government in terms of the principles of unjust enrichment, quantum meruit under Section 70 of the Contract Act is liable to the writ petitioner. The State cannot absolve itself of its liability in the backdrop of the above. 18. The State cannot unjustly enrich itself for works done for its benefit. The citizens of the Municipality used and continue to use the works done. Roads, public buildings and the hospitals constructed by the writ petitioner. Criminal proceedings against the then Chairman have failed in the first instance. 19. The principle of quantum merit would apply in the cases of works done without a contract. There is in such cases a deemed/implied agreement with the State. The Doctrine of Public Trust also comes to play in the facts of this case. 20. The principle against unjust enrichment and restitution have been explained at Paragraph 8 of the decision of the Supreme Court in the case of Mahabir Kishore and Ors. Vs. State of MP reported in (1989) 4 SCC 1. 8. The question is what was the law applicable to the case. “Nul ne doit senrichir aux depens des autres”—No one ought to enrich himself at the expense of others. This doctrine at one stage of English common law was remedied by “indebitatus assumpsit” which action lay for money “had and received to the use of the plaintiff”. It lay to recover money paid under a mistake, or extorted from the plaintiff by duress of his goods, or paid to the defendant on a consideration which totally failed. On abolition of “indebitatus assumpsit” courts used to imply a promise to pay which, however, in course of time was held to be purely fictitious. Lord Mansfied in Moses v. Macferlan [(1760) 2 Burr 1005, 1012] explained the juridical basis of the action for money “had and received” thus: “This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. Lord Mansfied in Moses v. Macferlan [(1760) 2 Burr 1005, 1012] explained the juridical basis of the action for money “had and received” thus: “This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, 'ex aequo et bono', the defendant ought to refund; it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon a usurious contract, or, for money fairly lost at play; because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.” 21. There is one argument that comes to the mind of this Court that could have been advanced by the State. Matters of this nature must be decided in a civil proceeding by trial and evidence. Exceptions thereto have been carved out in the decision of the Supreme Court in the case of ABL International Ltd. and Anr. Vs. Export Credit Guarantee Corporation of India Ltd. and Ors. reported in (2004) 3 SCC 553 and narrowed down to some extent in the case of Joshi Technologies International Inc. Vs. Union of India reported in (2015) 7 SCC 728 . 22. This case, in the opinion of this Court, clearly falls within such exception. 23. For the reasons stated hereinabove, the appeal fails and hereby dismissed. Consequently, all connected pending applications, if any, are also dismissed. 24. Vs. Union of India reported in (2015) 7 SCC 728 . 22. This case, in the opinion of this Court, clearly falls within such exception. 23. For the reasons stated hereinabove, the appeal fails and hereby dismissed. Consequently, all connected pending applications, if any, are also dismissed. 24. The impugned order is modified to a limited extent that the Raiganj Municipality shall be liable to pay the appellant as directed by the Single Bench upon funds being put in by the State. 25. The Principal Secretary, Department of Urban Development and Municipal Affairs, Government of West Bengal, the Principal Secretary, Department of Finance, Government of West Bengal and the Chairman, Raiganj Municipality shall be responsible for complying with this order. 26. Needless to mention that the direction of the Single Bench that the quantum of claim of the writ petitioner may be reassessed by the Principal Secretary, Department of Urban Development and Municipal Affairs, Government of West Bengal, Principal Secretary, Department of Finance, Government of West Bengal and the Chairman, Raiganj Municipality. 27. The time frame for complying with the above is extended by a period of one month from date. 28. There shall be, however, no order as to costs. 29. The parties shall serve a copy of this order and the pleadings of the appeal to the Principal Secretary, Department of Finance, Government of West Bengal. 30. All parties shall act on the server copy of this order duly downloaded from the official website of this Court.