IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 AS.No. 23 of 1996(B) ------------------------- OS.156/1992 of ADDL.SUB COURT,ATTINGAL .................... APPELLANT(S)/PLAINTIFF ------------------------------- SATHEER KNUJU, S/O. MOHAMMED KASIM, PALANKONATH THADATHARIKATHU VEEDU, PULLAMPARA VILLAGE BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.M.S.RADHAKRISHNAN SRI. B.S. SWATHI KUMAR RESPONDENT(S)/DEFENDANT ----------------------------------- THE PULLAMPARA PANCHAYATH, REPRESENTED BY ITS EXECUTIVE OFFICER. ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAI, SRI. V.S.SUDHEER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 23 OF 1996 = = = = = = = = = = = = = = = Dated this the 14th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Attingal in O.S.156/92. The suit is one for damages. It is the case of the plaintiff that he had bid the right in auction to remove the sand from Vamanapuram river in Pullampara Panchayath between Erappil Kadavu and Aruvippuram bridge for the period from 12.6.89 to 31.3.90 for a consolidated amount of Rs.70,001/-. There is also a stipulation that he shall not obstruct the free flow of the water and cause destruction to the banks of river. The plaintiff would contend that though there was an understanding to the effect that the A.S. 23 OF 1996 -2- Panchayath will form a road and also will provide a stocking place nothing was done and that resulted in the formation of a road by the plaintiff himself and to get a stocking place by spending his money which has resulted in damages to the plaintiff. It is also specifically contended that by virtue of the order of the District Collector there was prohibition from removing sand from the river and that also had caused him damages. Therefore the suit is filed. 2. On the other hand the defendant would contend that there was no damages caused on account of the defendant and there was no understanding as suggested in the plaint and therefore the plaintiff is not entitled to any relief. A.S. 23 OF 1996 -3- 3. In the trial court PWs.1 to 4 and DW1 were examined. Exts.A1 to A9 and B1 to B11 were marked. On appreciation of the materials the trial court dismissed the suit. It is against that decision the plaintiff has come up in appeal. 4. Heard the learned counsel for the appellant as well as respondent and also perused the records. It is not in dispute that the plaintiff had bid the right to collect sand in auction for a sum of Rs.70,001/- between the period 12.6.89 and 31.3.90 for a consideration of Rs.70,001/-. The plaintiff is claiming damages on four grounds, (1) due to the non availability of road and space for depositing sand (2) due to the strike started by labourers (3) due to the rainy season and (4) due to the A.S. 23 OF 1996 -4- stay order issued by the District Collector. 5. Let me consider about the first point. I had perused the agreement Ext.B1. There is no provision in Ext.B1 agreement that the Panchayath will provide a road or a stocking space. It has to be remembered the right to bid in auction is done after a public advertisement and the parties are free and at liberty to inspect the place before participating in the auction. So with both eyes opened the plaintiff had participated in the auction and had bid the same. In the absence of any contract between the plaintiff and the Panchayath to the effect that Panchayath will provide a pathway or a space for storing, it may not be correct on the part of the Court to hold that such a way is to be provided or space is to be given by the A.S. 23 OF 1996 -5- Panchayath. The party cannot go beyond Ext.B1 and therefore the first point has to be answered against the plaintiff. 6. So far as points 2 and 3 are concerned one is stated as a labour strike and the other is rainy season. The plaintiff is perfectly aware that in Kerala there is monsoon and being fully conscious of the monsoon season he has participated in the auction. So the rainy season shall not be a ground for getting damages. So far as the labour problem is concerned it is a dispute between the contractor and the labourer and the Panchayath has nothing to do with the same. It is for the plaintiff to handle his labourers and in case of failure he has to pay the penalty and he cannot go back and contend that the Panchayath should help him. So A.S. 23 OF 1996 -6- these points also cannot be found in his favour. 7. Now, lastly the important point that arises for consideration is regarding the stay order issued by the District Collector. Right to collect sand from Erappil Kadvu to Aruvippuram bridge is the subject matter. The District Collector, Thiruvananthapuram had issued an order Ext.A4 dated 25.10.89 wherein it is stated that complaints has been received to the effect that the collection of sand by the Pullampara Panchayath from Vamanapuram river is causing soil erosion and destruction of private properties with the cultivation thereon. Therefore the Collector passed an order as follows. “Under the circumstances removal A.S. 23 OF 1996 -7- of sand from Vamanapuram river by the Pullampara Panchayath from the area between Erappil Kadavu Chempancode and Poykayam is stayed until further orders.” 8. From the agreement we find that the starting point is the Erappil kadavu. The learned Subordinate Judge held that there is a stipulation in the agreement that the banks of the river shall not be destroyed. But the order of the Collector will go to show that the removal of sand from the river causes erosion and causes destruction. So it is the removal of the sand from the river that is causing the problem which the Panchayath has tendered and it is prohibited. When the right to take sand from the river is prohibited it is coming within the period of contract and it is a matter which A.S. 23 OF 1996 -8- requires consideration. But unfortunately the parties have taken it light heartedly and did not adduce proper evidence. The materials that require for consideration is that to what period there had been an order of stay or what was the approximate collection of the sand or what was the price of the sand. These are all materials which one has to prove in order to claim damages. I feel an opportunity can be given in that regard and therefore the judgment and decree have to be set aside and the matter is to be remanded back. In the result the judgment and decree of the trial court are set aside and it is remanded for the specific purpose to find out whether the stay order issued by the District Collector has caused hindrance to the plaintiff in removing A.S. 23 OF 1996 -9- sand from the river and if so to what extend and what is the damages sustained on account of the same. If the answer is in the affirmative the plaintiff may be entitled to damages to that extend, then the Court can decide the issue and for the said purpose both the parties are permitted to adduce both documentary as well as oral evidence in support of their respective contentions and let the matter be disposed of in accordance with law. The parties are directed to appear before the trial court on 16.11.2010. M.N. KRISHNAN, JUDGE. ul/- A.S. 23 OF 1996 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.23 OF 1996 = = = = = = = = = = = J U D G M E N T 14th October, 2010.