IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 21951 of 2005(L) -------------------------------------- PETITIONER/PETITIONER ------------------------------------ P.V.IMMANUEL, AGED 51 YEARS, S/O.VARKEY, POTHANAMMUZHIYIL HOUSE, RANDAR, MUVATTUPUZHA. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, LOCAL ADMINISTRATION, THIRUVANANTHAPURAM. 3. MUVATTUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY. BYGOVERNMENT PLEADER SRI.K.V.MANOJKUMAR - R1 & R2 ADV. SRI.V.M.KURIAN, SC, - R3 SRI.A.V.THOMAS - R3 SRI.MATHEW B. KURIAN - R3 SRI.K.T.THOMAS - R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).21951/2005-L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AUCTION NOTICE PUBLISHED BY THE 3RD RESPONDENT BEARING NO.R-847/98. EXT.P2: COPY OF THE AGREEMENT ENTERED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT MUNICIPALITY DATED 01/04/1998. EXT.P3: COPY OF THE LETTER DATED 01/02/1999 BEARING NO.R4-847/98(3) ISSUED BY THE 3RD RESPONDENT. EXT.P4: COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 04/07/1999. EXT.P5: OPY OF THE JUDGMENT DATED 11/02/2003 IN O.P.NO.30885/2002(B) OF THIS HON'BLE COURT. EXT.P6: COPY OF THE LETTER DATED 28/07/2003 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED NIL. EXT.P8: COPY OF THE LETTER DATED 04/07/2005 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R3(a): COPY OF THE AGREEMENT DATED 01/04/1998. EXT.R3(b): COPY OF THE RESOLUTION DATED 10/12/1998. EXT.R3(c): COPY OF JUDGMENT DATED 11/02/2003. EXT.R3(d): COPY OF RESOLUTION NO.19 DATED 28/08/2003. EXT.R3(e): COPY OF THE NOTICE DATED 08/12/2003. // TRUE COPY // Rs/ ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NO. 21951/2005 ----------------------------------------------------------------- Dated this the 13th day of June, 2008 JUDGMENT In response to the tender invited by the respondent Muncipality to award the right to collect sand from the Muvattupuzha River during the financial year 1998-99, the petitioner had quoted an amount of Rs.11,05,001/-. The tender was accepted by the Muncipality and an agreement was also executed between the parties. Ext.R3(a) is the agreement and Ext.P1 is the tender conditions. 2. Following closure of the Kadavu, petitioner thereafter claimed remission of the amounts payable to the Muncipality for three spells of time, (1) 16.4.98 to 23.4.98 for repair works, (2) 24.6.1998 to 23.7.1998 due to workers' strike and (3) from 9.10.98 to 17.10.1998 on account of natural calamities. According to the petitioner in 2 view of clause 20 of Ext.P1 and clause 15 of Ext.R3(b) agreement he is entitled to the remission for the above periods. Muncipality considered his claim and recommended remission of Rs.1,15,041/- at the rate of Rs.3027.40 per day and sought sanction of the first respondent for giving remission for 38 days. 3. The request of the Muncipality was considered by the first respondent and its decision to reject the same was conveyed to the Muncipality. The said decision was challenged before this court in O.P.No.30885/02 and this court in Ext.R3(c) judgment disposed the matter directing reconsideration of the decision. Thereafter the parties have heard and the first resspondent decided to grant remission for 7 days, namely for the period from 16.4.1998 to 22.4.1998. This decision has been conveyed to the petitioner by Ext.P6. It is challenging Ext.P6 order this writ petition has been filed. 4. The correctness of the claim raised by the petitioner for remission is to be decided in the light of the terms of Ext.P1 and Ext.R1(a) agreement. Clause 20 of Ext.P1 3 provides that, in the event of strike, if the Kadavu is to be closed down, the contractor will be eligible for proportionate remission. One of the claims made by the petitioner is for the period from 24.6.1998 to 23.7.1998. According to the petitioner, on account of the strike by the workers the Kadavu had to be closed down during the aforesaid period and therefore he is entitled to remission. However, it is seen from Ext.R3(b) proceedings of the Muncipal Council dated 10.12.1998 that on inspection they had found that during the aforesaid period, the petitioner had collected sand on 7 days. Therefore, even going by the records of the Muncipality, excluding the 7 days, the Kadavu reamained closed for the remaining period and if so, the petitioner is eligible for remission during the said period. Therefore, I hold that the petitioner is eligible for remission for the period from 24.6.1998 to 23.7.1998, excluding 7 days. 5. The other claims are for the period from 1.4.1998 to 22.4.1998 and from 9.10.1998 to 17.10.1998. This claim of the petitioner has to be decided in the light of clause 15 of 4 Ext.R3(b) agreement, which is also produced as Ext.P2. Clause 15 of the agreement provides that, if for maintenance purpose the Kadavu is closed for 15 days, the contractor will not be eligible for any remission and that for the days exeeding 15 days, the contractor will be eligible for proportionate reduction. If that clause is applied against the claim for the period from 1.4.1998 to 22.4.1998, it has to be accepted that for the period from 16.4.1998 to 22.4.1998, the petitioner is entitled for remission as claimed for. Since the period of closure for the period 9.10.1998 to 17.10.1998 was far less than 15 days, the petitioner cannot claim any remission for that period. 6. In view of the above, Ext.P6 cannot be accepted and is therefore is quashed. Accordingly, it is declared that the petitioner will be entitled for remission for the period from 16.4.1998 to 22.4.1998 and from 24.6.1998 to 23.7.1998, excluding 7 days. It is directed that for the aforesaid number of days the petitioner will be eligible for remission at the rate of Rs.3027.40. The balance amount that is due from the petitioner to the Muncipality shall be remitted by 5 the petitioner within 4 weeks from today, along with interest at the rate of 10% per annum. Writ Petition is disposed of as above. ANTONY DOMINIC JUDGE vi. 6