IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).No. 9432 of 2010(D) ------------------------- PETITIONER: --------------- SIRAJ.T.A., KONGRAPPILLY HOUSE, KUMBALAM P.O., PANAGAD. BY ADV. SRI.VIJU ABRAHAM SRI.ALBERT V.JOHN SRI.K.P.WILSON SRI.DOMINIC JOHNSON RESPONDENT(S): --------------- 1. SECRETARY TO GOVERNMENT, P.W.D. DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. DEPUTY TAHASILDAR (RR), KANAYANNOOR TALUK, ERNAKULAM, KOCHI-682 011. 4. SUPERINTENDING ENGINEER, P.W.D. (R AND B) CENTRAL CIRCLE, ALWAYE. 5. VILLAGE OFFICER, KUMBALAM. BY SR. GOVERNMENT PLEADER MR. MATHEW GEORGE VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 9432 OF 2010 ......................................................................... Dated this the 20th July , 2010 J U D G M E N T The petitioner, who is a physically handicapped person suffering nearly 55% of permanent disability as certified by the Medical Board vide Ext. P1, had participated in the auction for toll collection in respect of Karuvannur bridge for the year 2007-08. On coming out as the successful bidder, the offer made by the petitioner for Rs. 36,66,697/- to have the right to collect toll charges for a period of 11 months from 01.05.2007 to 31.03.2008 was accepted and the work order was issued to the petitioner. 2. Out of the total bid amount, even according to the petitioner, only a total sum of Rs.20 lakhs was paid by him and the balance could not be satisfied due to many a reason including diversion of traffic for maintenance and tarring of the road by P.W.D. ,which allegedly contributed much to the loss of Revenue. While so, the petitioner was issued Ext.P2 notice by the Executive Engineer, P.WD Roads Division, Thrissur, demanding a sum of Rs.20,45812/- as the outstanding liability under the transaction. This was followed by Ext.P3 notice issued by the 4th respondent, wherein the actual liability shown was only Rs. 18,72,147/-. On receipt of the said notice, the petitioner preferred a statement of objections pointing out W.P.(C) No. 9432 OF 2010 2 various facts and circumstances which adversely contributed to the loss suffered by the petitioner and sought for necessary intervention. This was followed by several other representations as well, though copies of those representations have not been produced by the petitioner, but for copies of the acknowledgement cards, as borne by Exts.P12 to P14. 3. The case of the petitioner is that without any regard to the pendency of the said representations, Exts.P4 and P5 revenue recovery notices have been issued demanding a sum of Rs.18,72,147/-. Challenging the demand, the petitioner approached the respondents Nos.1,3 and 4 by filing Exts.P6 to P8 representations, stating that there was no proper quantification of the liability, which however was not considered. This made the petitioner to approach this Court by filing the Writ Petitiion challenging the impugned proceedings. 4. The 4th respondent has filed a statement of objections explaining the actual facts and figures, also producing copies of the relevant documents as Annexures R4(a) to R4(c), seeking to sustain Ext.P3 notice. Referring to the contents of Ext. R4(b) special conditions of the tender, it is asserted that the respondents are very much entitled to realise the loss, if any, sustained to the Government W.P.(C) No. 9432 OF 2010 3 due to non-remittance of the toll amount by the successful bidder, to the extent as specified therein . This being the position, it is stated that the course being pursued by the respondents issuing Exts.P3 , P4 and P5 is in conformity with the conditions prescribed and is not assailable under any circumstances. 5. The learned Counsel for the petitioner submits that the Clause (1) to Annexure R4-B can only be regarded as an enabling provision, whereby the rights and liberties of the respondents to realise the due amount is specifically provided. But this does not mean that the respondents are justified in quantifying the amount by themselves fixing the extent as alleged. Reliance is sought to be placed on the dictum laid down in State of Karnataka vs. Shree Rameshwara Rice Mills, Thirthahalli (AIR 1987 SC 1359) and by this Court in Rambal Company vs. Kerala State Science and Technology Museum (2000 (2) KLT 613) and in Shriram Engineering Construction Co. Ltd vs. K.S.I.D.C (2007(2) KLT 388). 6. The learned Counsel for the petitioner submits that the dispute is mainly with regard to the conspicuous absence of quantification of the loss, before which no coercive proceedings under the Revenue Recovery Act are liable to be proceeded with. True, it W.P.(C) No. 9432 OF 2010 4 is the settled position that the remedy under the Revenue Recovery Act cannot be invoked before the liability is quantified and there cannot be any dispute with regard to the dictum in the above binding judicial precedents. 7. But here, the question is whether there is any scope for raising such contention; more so, when the liability to satisfy the amount is not disputed from the part of the petitioner. Admittedly, the total bid amount for which the rights and liberties were awarded to the petitioner on becoming the successful bidder, as quoted by the petitioner is Rs.37,74,665/-. The petitioner himself admits in the Writ Petition that he could effect repayment of only a sum of about Rs. 20 lakhs and there is no case for the petitioner that the balance amount of Rs.17,74,665/- was ever satisfied by him. Obviously, the amount sought to be cleared by issuing Ext.P3 notice and followed up by issuing Exts.P4 and P5 is Rs. 18,72,147/-. Particulars of the calculation showing the final figures as Rs.18,72,147/- have been clearly given in Ext.R4(c), based on the satisfaction of the admitted extent of liability and the amount subsisting to be cleared by the petitioner . 8. In the above circumstance, this Court finds that there is no dispute with regard to the 'quantum' of liability to be satisfied by the W.P.(C) No. 9432 OF 2010 5 petitioner and the dispute raised by the petitioner is only with regard to the 'loss' caused to the petitioner, because of the alleged road maintenance and diversion of traffic . Even though the representations preferred by the petitioner with reference to Exts. P12, P13 and P14 have not been produced before this Court, the learned Government Pleader made available a copy of the representation dated 'NIL', wherein the grievance projected by the petitioner is not with regard to any dispute on quantum, but with regard to the 'loss' sustained by the petitioner. This being the position, the decisions cited by the learned Counsel for the petitioner in support of the case projected in the Writ Petition are not applicable to the case in hand This Court finds that the Writ Petition is devoid of any merit and no grounds are raised in the Writ Petition to be held as tenable. 9. However, taking note of the persuasive submissions made by the learned Counsel for the petitioner that, by virtue of the physical infirmity and several other adverse circumstances, the petitioner is not in a position to satisfy the liability in a lump sum, this Court finds it fit and proper to give some breathing time to the petitioner to clear the liability by way of reasonable installments. Accordingly, the petitioner is permitted to satisfy the liability by way of 'ten' E.M.Is, W.P.(C) No. 9432 OF 2010 6 the first of which shall be paid on or before 30.07.2010 , to be followed by similar installments to be effected on or before the 30th of the succeeding months. Subject to this, the recovery proceedings pursuant to Exts.P4 and P5 shall be kept in abeyance. It is made clear that, if any default is committed by the petitioner in effecting the installments as above, the respondents will be at liberty to proceed with further steps for realisation of the amount in a lump sum, from the stage where it stands now. 10. This will not stand in the way of the first respondent to consider and pass appropriate orders on Ext.P6 representation, which shall be done as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk