IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WA.No. 69 of 2008 ---------------------- AGAINST THE JUDGEMENT IN WPC.32404/2006 Dated 08/10/2007 .................... APPELLANT : PETITIONER: ----------------------------- THE ANICKADU GRAMA PANCHAYATH, REP. BY SECRETARY, ANICKADU GRAMA PANCHAYATH OFFICE, NOOROMMAVU P.O., PUNNAVELI, PATHANAMTHITTA DISTRICT. BY ADV. SRI.KOSHY GEORGE SRI.P.I.DAVIS RESPONDENTS: RESPONDENTS: ------------------------------------ 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF PANCHAYATH, PATHANAMTHITTA. 3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. 4. M.P.BIJU, BIJU BHAVAN, VAZHAPALLY, CHANGANACHERRY. ADV. SRI.TPM.IBRAHIM KHAN FOR R4 SRI.V.S.AFSAL KHAN FOR R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R. Bannurmath, C.J. & A. K. Basheer J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 69 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2009. Judgment Basheer, J: Appellant – Grama Panchayat – calls in question the correctness of the judgment in W.P.No.32404/2006. By the impugned judgment the learned single Judge has directed the appellant to pay a sum of of Rs.3,00,452/- to respondent No.4 without interest if paid within a period of one month from the date of judgment. There is a further direction that the amount will carry interest at the rate of 9% per annum from the date of judgment, if it is not paid within the period of one month. 2. Relevant facts which led to filing of the writ petition may be briefly noticed. 3. Respondent No.4 was the successful bidder in an auction held by the appellant-Panchayat for excavating sand from Manimala river for the period from May 2000 to March 31, 2001. The auction was confirmed in favour of respondent No.4 for a sum of Rs.16 lakhs. Respondent No.4 was prevented from removing sand from the river because of certain prohibitory orders issued by the Sub Divisional Magistrate, District Collector etc. during different spells and for a total period of 68 days (However according to respondent No.4 he could not remove sand for 81 days). Respondent No.4 approached the appellant-Panchayat W.A.No. 69 of 2008 2 claiming remission of proportionate amount from the bid amount of Rs.16 lakhs for the period during which he was prevented from collecting sand. The above request was declined by the Panchayat by Ext.P4 resolution dated August 11, 2001. 4. To make a long story short, the issue was taken up before the Government and the Tribunal for Local Self Government institutions. In Ext.P5 order passed on an appeal filed by respondent No.4, the Government took the view that the appellant was liable to refund an amount of Rs. 2,42,300/- being the proportionate loss for 50 days during which the auction purchaser was prevented from removing sand from the river bed. This amount was arrived at by the Government relying on the report of the Deputy Director of Panchayat, Pathanamthitta who reckoned that the auction purchaser had not been able to collect sand for 50 days during the 11 month tenure of auction. 5. However the Tribunal in Ext.P6 order held that respondent No.4 would be entitled to get remission for 81 days. It was further held by the Tribunal that the decision of the Panchayat not to grant remission was illegal. 6. The matter was again taken up by both sides before the Government. By Ext.P7 order dated September 18, 2006, the Government directed the appellant to refund the proportionate bid amount for 62 days, instead of 50 days as held earlier in Ext.P5 order. Ext.P4 resolution passed by the appellant was set aside by W.A.No. 69 of 2008 3 invoking the power under section 191(1) of the Kerala Panchayat Raj Act. 7. Ext.P7 order was challenged by the appellant in the writ petition. There was a further prayer for a declaration that Ext.P6 report of the Tribunal was not legal or proper and that Ext.P4 resolution passed by the Panchayat was legal and valid. 8. The above writ petition was considered by the learned single Judge along with W.P.No.32782/2006 filed by respondent No.4 praying for a direction to the Panchayat to pay the sum of Rs.3,00,452/- as directed by the Government in Ext.P7 order. While dismissing the writ petition filed by the appellant, the learned Judge allowed the other petition filed by respondent No.4 as prayed for. 9. It is contended by learned counsel for the appellant that Ext.P4 resolution was passed by the Panchayat in terms of Rule 4 of the Kerala Panchayat Raj (Granting of remission to Contractors and Lessees) Rules 1988. It is further contended that the Government was not justified in invoking the power under section 191 of the Act to set aside Ext.P4 resolution in an arbitrary and illegal manner since the appellant had passed the resolution invoking the power vested in it under the Act. 10. It is pertinent to note that there is no dispute that respondent No.4 was prevented from removing sand during different spells because of the prohibitory orders issued by the W.A.No. 69 of 2008 4 Revenue Divisional Officer, District Collector etc. Though the auction purchaser had contended that he could not remove sand for 81 days, the Government after considering the report of the local authorities found that the number of days lost was only 62. The contention of the appellant is that respondent No.4 is not entitled to get any remission even though he was prohibited from removing sand by competent authorities because of the ban order. 11. Appellant doe not have a case that respondent No.4 failed to remove sand because of his own fault. Further, there is no case for the appellant that there was no ban order during the relevant period in question. The above aspects were kept in view not only by the Tribunal in Ext.P6 order but also by the Governments in Ext.P7 order. The Tribunal in particular had dealt with the issue from all conceivable legal angles as well. Curiously in Ext.P4 resolution the Panchayat had only referred, primarily, to its precarious financial position not to accede to the request of respondent No.4 for remission. 12. Having carefully considered the entire aspects of the matter, we do not find any reason to interfere with the order passed by the learned single Judge. In our view, the learned single Judge was justified in dismissing the writ petition in the facts and circumstances of the case. 13. In this context we may also notice that the appellant has not challenged the judgment passed by the learned single Judge in W.A.No. 69 of 2008 5 WP.No.32782/06 which was disposed of by the common judgment directing the panchayat to pay the sum of Rs.3,00,452/- to respondent No.4 as directed in Ext.P7 order issued by the Government. The above judgment is binding on the appellant and it has become final. In that view of the matter also the appellant is not entitled to succeed in this appeal. The appeal fails and it is accordingly dismissed. S.R.Bannurmath, Chief Justice A.K. Basheer Judge an.