IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 7254 of 2008(L) ------------------------- PETITIONER: -------------- ABDUL SAMAD, KOCHUVILAPARAMBIL, VENGARA, THODIYOOR NORTH, KARUNAGAPPALLY. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENTS: ---------------- 1. PALLIKKAL GRAMA PANCHAYATH, REP. BY ITS SECRETARY, PAZHAKULAM P.O., PATHANAMTHITTA. 2. SECRETARY, PALLIKKAL GRAMA PANCHAYATH, PAZHAKULAM P.O., PATHANAMTHITTA. BY ADV. SRI. K.SHAJI FOR R.1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 7254 OF 2008 L ==================== Dated this the 13th day of August, 2008 J U D G M E N T Ext.P7 is the order under challenge. By this order, the claim of the petitioner for refund of the advance of Rs.25,000/- deposited by him has been turned down by the Panchayat. 2. The facts of the case are that the respondent Panchayat had invited tender for removing clay and the petitioner was one of the bidders. The offer of Rs.4.87 lakhs made by the petitioner being the highest was accepted by the respondent Panchayat. Immediately thereafter, the petitioner deposited Rs,25,000/- towards advance. In terms of the auction notice, though he was required to deposit the balance amount, petitioner committed default, as a result of which, the tender awarded to him was cancelled and was awarded to the second lowest bidder. The second lowest bidder initially deposited Rs.25,000 and thereafter committed default in remitting the balance. Though an application was made by him for extension of time, that was rejected and the Panchayat went ahead with re-auction. 3. It is stated by the Panchayat that second auction could not be WPC 7254/08 :2 : finalised and a third re-auction was conducted. In the re-auction, the highest offer received was Rs.4.90 lakhs and that was accepted by the Panchayat and the tender was also awarded. Successful tenderer in the re-auction deposited the amount as required and contract was also executed. 4. Thereupon, the second highest bidder, challenged the re- auction. In the writ petition filed by him, the challenge was repelled, but however the case was disposed of by Ext.P1 judgment directing that since the Panchayat did not suffer any loss, the advance of Rs.25,000/- deposited by him shall be refunded. The judgment was not compiled with and thereupon the second highest bidder filed a contempt application before this court in which Ext.P2 order was passed. In Ext.P2, this court rejected the plea of the Panchayat that the deposit of Rs.25,000/- made by the second highest bidder was towards earnest money deposit and not an advance as found in Ext.P1 judgment. The Panchayat was directed either to comply with the judgment or to show cause against further proceedings in contempt. Panchayat at that stage filed WA No.344/06 against Ext.P1 judgment, and confirming the findings in Ext.P1, the writ appeal was dismissed by Ext.P3 judgment. It is stated that thereafter, the advance of WPC 7254/08 :3 : Rs.25,000/- deposited by the second highest bidder was refunded by the Panchayat. 5. Petitioner submits that in the meanwhile, he also staked his claim for refund of the advance deposited by him, as his case was similar in all respects with that of the second highest bidder. His claim was remaining unattended and thereupon he filed a writ petition before this court as WP(C) No.24154/06 resulting in Ext.P4 judgment where, this court directed that the Panchayat shall deal with the claim raised by the petitioner. Petitioner submits that thereupon the Panchayat issued Ext.P5 notice which disclosed a tentative decision on the part of the Panchayat to reject his claim. Therefore, he filed WP(C) No.33516/06 challenging Ext.P5 notice and that case was disposed of by Ext.P6 judgment directing the Panchayat to take note of his contentions and decide the matter. It is stated that in pursuance thereof, the Panchayat passed Ext.P7 order describing the deposit made by the petitioner as an earnest money deposit and rejecting his claim for refund. It is challenging Ext.P7 and for directing that the amount be refunded to the petitioner as in the case of the second highest bidder, this writ petition is filed. 6. On facts, though there is not much dispute, the counsel for WPC 7254/08 :4 : the Panchayat attempts to sustain Ext.P7 by submitting that if the petitioner had deposited the money in time as required of him, the Panchayat would have earned interest thereon. It is stated that since the Panchayat realised the amount due belatedly and in the process of re- auction, Panchayat lost considerable amount towards interest. It is stated that this loss the petitioner is liable to make good and that it was to recoup it, the Panchayat decided to forfeit the amount deposited by the petitioner. 7. Having considered the submissions made by both sides, I must confess my inability to accept the plea of the Panchayat. In all respects, the case of the petitioner is similar to the case of the second highest bidder. If that be so, he is entitled to parity in treatment and refund of the advance deposited by him. True, in Ext.P7, the Panchayat described the deposit made by the petitioner as an earnest money deposit. This contention also cannot be accepted, for, this issue has been concluded against the petitioner in Ext.P2, where this very plea has been rejected by this court. 8. As regards the plea of the Panchayat that it had lost interest that would have accrued if the petitioner had made payment in time, I WPC 7254/08 :5 : notice that this argument was available to the Panchayat when the case of the second highest bidder was considered by this court. This plea having not been urged on that occasion, in my view, is not available to be urged against the petitioner, whose claim is similar in all respects. 9. Therefore, I cannot sustain Ext.P7 and Ext.P7 will stand set aside. The Panchayat shall refund the advance of Rs.25,000/- deposited by the petitioner, as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp