IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 30476 of 2009(D) --------------------------------------- PETITIONER: ------------------- HASSAN, S/O. ABDUL KHADER, THOPPIL PARAMBU, VEDIMARA, PARAVUR. BY ADV. MR.K.RAVEENDRAN. RESPONDENTS: ------------------------ 1. THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT, TALUK HEAD QUARTERS HOSPITAL N.PARAVUR. 3. THE SECRETARY, PARAVUR MUNICIPALITY N.PARAVUR. R1 & R2 BY GOVERNMENT PLEADER MR. I.V. PRAMOD, R3 BY MR. T.A. SHAJI, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.30476 of 2009-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of November, 2009. JUDGMENT 1.Before proceeding further, for the purpose of clarity, it is recorded that what is available at page 13 in this paper book should have been between pages 10 and 11. Such exhibits are profusely available for the Judges to do a bit of searching before deciding matters. Clauses 1 to 5 of Ext.P1 document are available on page 13 and clauses 6 onwards commence in page 11. I will read Ext.P1 accordingly for the purpose of this case. May be unfortunate, but we are duty bound to decide without delay, even when the registry sends up such matters. Such is the constitutional impregnation of duties, which the Judges discharge, conscientiously. 2.The petitioner participated in an auction of a WPC30476/09 -: 2 :- premises in the Taluk Hospital which is under the management of the Municipality. The petitioner bid in the auction, the right to run a milma booth/canteen. He executed Ext.P1 agreement on 4th July, 2009. With the passage of time, he committed default in paying the total amounts due. The Superintendent of the Hospital and the Municipality have taken action in that regard. Petitioner now says that he had paid an advance and necessary credit has to be given. He further states that though what was allotted was a milma booth/canteen, he is not given any milma booth, in the sense that the second respondent Superintendent of the Hospital does not hold a licence for a milma booth. A reading of Ext.P1 does not show that the second respondent was obliged under the contract either by himself in person or as an agent of the Government to obtain a milma booth licence and permit the petitioner to act under that licence. Similarly, the fee to be paid in terms of Ext.P1, either by way of rent or otherwise, is amount due for occupation of the WPC30476/09 -: 3 :- premises in question. It does not refer specifically to the classification of activities to be that of a canteen and the activities of a milma booth. The petitioner's attempt now is to wriggle out of his responsibilities to make the payments. In terms of the interim order, the petitioner has made certain remittances. That is how he is still continuing in occupation. Having considered the matter on merits, I do not find any ground for the petitioner to ask for any proportionate reduction in the total amount due under Ext.P1 on account of the alleged non- availability of the milma booth. Equally, the plea that he has remitted advance is also no ground because, what has been paid as advance is to be retained as advance till the end of the period of the contract since such advance should be available to provide appropriate security for the contract. I am also not impressed to accede to the request of the petitioner to direct the consideration of an appeal since the petitioner WPC30476/09 -: 4 :- has invoked the writ jurisdiction and has invited the decision of this Court. Under such circumstances, this writ petition fails and the same is accordingly dismissed on all other counts, however directing that all payments made by the petitioner, including that under the interim order, will be given due credit by the respondents while settling the accounts with the petitioner. On pronouncement of this judgment, the learned counsel for the petitioner sought a reasonable time for his client to pay the remaining outstandings. If the petitioner continues to pay all dues and the remaining outstandings within four weeks from now, the impugned distress action will stand dropped. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/2411