IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 11952 of 2008(W) -------------------------- PETITIONER(S): --------------- V. MOHAMMED HASSAN, AMAR GOVT. HOSPITAL ROAD, P.O.FEROKE, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): --------------- 1. RAMANATTUKARA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, RAMANATTUKARA P.O. KOZHIKODE DISTRICT. 2. THE SECRETARY RAMANATTUKARA GRAMA PANCHAYAT, RAMANATTUKARA P.O. KOZHIKODE DISTRICT. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 & 2 SRI.K.JAYAKUMAR FOR R1 & 2 SRI.P.B.KRISHNAN FOR R1 & 2 SMT.GEETHA P.MENON FOR R1 & 2 SMT.V.DEEPA FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.11952 of 2008 ================== Dated this the 3rd day of April, 2009 J U D G M E N T The 1st respondent invited tenders for granting right to run a comfort station in the Ramanattukara Grama Panchayat bus stand for the period from 1.4.2007 to 31.3.2008. The petitioner's bid was accepted as per Ext.P1, for a total price of Rs.51,300/-. The petitioner paid Rs.17,000/- as per the conditions of the tender. Thereafter, the petitioner alleges to have found that the existing septic tank of the latrine was in a bad state of repair and was overflowing. The petitioner also alleges that water supply to the comfort station was defective on account of broken pipelines. As such, according to the petitioner, the comfort station was not in a proper condition to be used by the public, as a result of which, the public was reluctant to use the same. Despite the petitioner sending several representations to the 2nd respondent requesting proper repairs to get the comfort station in good condition for the use of the public, the petitioner alleges that no action was taken by the respondents. The petitioner also points out that some members of public had approached the Ombudsman for local authorities, who had also directed to carry out necessary repairs to the comfort station. The petitioner contends that because of such statement of affairs the petitioner was not in a position to run the comfort station properly and he had to incur heavy loss on account of 2 the inaction on the part of the respondents in keeping the comfort station in good condition. Thereafter, the 2nd respondent took steps to construct a new septic tank and invited fresh tenders for running the comfort station for the period from 1.4.2008 to 31.3.2009. The petitioner also submitted quotation. But he alleges that it was rejected. According to the petitioner, in view of the fact that he could not run the comfort station and suffered loss, he is entitled to continue the contract for one more year. Since the respondents were not amenable to the same, the petitioner has approached this Court seeking the following reliefs: “i) To declare that the petitioner is entitled to continue to maintain the comfort station in Ramanattukara Grama Panchayat Bus Stand from 1.4.2008 to 31.3.2009. ii) To issue a writ of mandamus or any appropriate writ, order or direction directing the respondents to allow the petitioner to maintain the comfort station at bus stand in Ramanattukara Grama Panchayat from 1.4.2008 to 31.3.2009. iii) To restrain the respondents from handing over the comfort station in the Ramanattukara Bus Stand to any other person for one year.” 2. Since, despite notice being served by special messenger on the respondents, they did not enter appearance, this Court considered the matter for interim orders and passed an interim order on 11.4.2008 as follows: “Respondents have not entered appearance though they were served by Special Messenger. The averments in the writ petition are yet to be controverted. Considering the averments in the writ petition and the submissions of Sri.A.V.M.Salahudeen, counsel for the petitioner, there will be an interim order in the following terms: The respondents will permit the petitioner to maintain status quo 3 as on today as regards the comfort station in the bus stand in Ramanattukara Grama Panchayat until further orders.” 3. Now a counter affidavit has been filed by the respondents, in which, they submit that the petitioner has deliberately suppressed material facts in the writ petition. According to them, the Panchayat invited quotations for maintaining the comfort station for 2008-09. Auction was conducted on 25.3.2008. One Sri.N.Ashraf, Shafana Manzil, Makkada Post, Kakkodi, Kozhikode, quoted the highest price of Rs.71,296/-. The petitioner also participated in the auction held on 25.3.2008. His bid was for Rs.59,500/- which was the third highest. The petitioner had deposited an EMD of Rs.10,000/- and when it was found that he was not the highest tenderer, he sought refund the same and the same was refunded to him. The auction was confirmed in favour of Sri.N.Ashraf . It is thereafter, the petitioner approached this Court on 7.4.2008 without disclosing the above facts and obtained an interim order. On the strength of the interim order, the petitioner continued to operate the comfort station without paying any amount whatsoever. He is also liable to pay the balance amount of Rs.33,200/- out of the bid amount for the previous year. According to the respondents, since, because of the interim order in this case, the highest tenderer had backed out, the petitioner is liable to pay that bid amount of Rs.71,296/-. As a result, the petitioner is liable to pay an total amount of Rs.1,04,496/- for having run the comfort station for 4 two years, ie. 2007-08 and 2008-09. They have also controverted the allegation of the petitioner that the respondents have not kept the comfort station in a good condition. The respondents would, therefore, seek dismissal of the writ petition. 4. A reply affidavit has been filed by the petitioner reiterating the contentions in the writ petition. He further submits that when the tenders were invited for 2008-09, he approached the Secretary of the Panchayat to allow him to continue to maintain the comfort station for the subsequent year also and it is pursuant to the direction of the Secretary to submit quotation for the year 2008-09, he had submitted quotation. He again submits that it was rejected. He also claims to have spent an amount of Rs.15,000/- for conducting repairs of the comfort station. He would further allege that he has sustained a loss of Rs.60,000/- during the period from 2007-08 to 2008-09 on account of the bad condition of the comfort station. He, therefore, asserts that he is entitled to the reliefs prayed for in the writ petition. 5. I have considered the rival contentions in detail. 6. I find considerable merit in the contention of the respondents that the petitioner has suppressed material facts in the writ petition. He does not dispute the fact that on 25.3.2008 there was an auction for the year 2008-09. He does not also dispute the fact that he had participated in the auction by depositing the EMD of Rs.10,000/- and quoting a price of Rs.59,500/- and that the highest 5 bidder was Sri.N.Ashraf, who quoted Rs.71,296/-. The writ petition was only filed on 7.4.2008. At that time, the petitioner was fully aware of all the above facts. In fact, the petitioner had got refund of the amount of Rs.10,000/- paid by him as EMD on finding that he was not the highest bidder. What the petitioner has stated about the whole thing in the writ petition is as follows: “3. ........ Even though the petitioner submitted a quotation for same, it was rejected and the respondents are granting the new permit for maintaining the said comfort station in the name of another person......” He did not also implead the successful bidder as a party to the writ petition. I am of opinion that this amounts to deliberate suppression of facts, which has resulted in this Court passing an order in favour of the petitioner. The petitioner himself admits that it is after constructing a new septic tank for the comfort station that the respondents invited quotations for maintaining the said comfort station for the period from from 1.4.2008 till 31.3.2009. When he admits that he had submitted a quotation for the same, it must be presumed that at that time he had no complaints about the condition of the comfort station. Therefore, by virtue of the interim order of this Court, the petitioner continued to run the comfort station without paying any amount whatsoever to the Panchayat. Even assuming that the petitioner had incurred some loss on account of the comfort station not having been kept in a good condition, I am of opinion that the petitioner shall pay 6 the price quoted by the highest bidder in the auction for the year 2008-09, which is Rs.71,296/-. Naturally, when this Court passed an interim order, as a result of which, the highest bidder was prevented from getting the contract as per his bid, he would not be interested in taking up the contract and he was not entitled to take up the contract also. The counsel for the respondents points out that the stay order was passed on the last date before summer vacation 2008. By the time, this Court reopens, two months would already be over and the successful bidder would not be interested in taking up the contract for the balance period. It is under the above circumstances, the respondents could not take appropriate steps in this writ petition for getting the stay vacated or the writ petition heard, is the contention raised by the counsel for the respondents. I find considerable merit in that contention also. In any event, in so far as the petitioner does not have any contention now that for the year 2008-09 the comfort station was not in a state of disrepair, I do not think that the petitioner can be permitted to have the benefit of having continued to run the comfort station for the subsequent year also without paying a penny. What the Panchayat has lost is public money. Even if the Panchayat has not taken appropriate steps in this writ petition, I do not think that the petitioner can be allowed to unjustly enrich himself with public money. Therefore, I am satisfied that the petitioner is liable to pay the amount quoted by the highest bidder for the year 2008-09, which is 7 Rs.71,296/-. 7. Although the respondents would deny that the comfort station was in a state of disrepair, I find that there were some proceedings before the Ombudsman in respect of the same. Therefore, for the year 2007-08, I think that some remission should be given to the petitioner in respect of the auction amount. Out of Rs.51,300/-, I am of opinion that, the petitioner should pay Rs.17,100/- more for the year 2007-08 in addition to the Rs.17,100/- he has already paid. In this connection, I may note that in the reply affidavit the petitioner has stated that the petitioner has spent about Rs.15,000/- for doing repairs. Accordingly, I direct the petitioner to pay an amount of Rs.88,396/- (Rs.71,296 + Rs.17,100) towards charges for his conducting the comfort station for the year 2007-08 and 2008-09, in addition to the Rs.17,100/- the petitioner has already paid for the year 2007-08. He will not be entitled to continue to run the comfort station on the basis of the interim order. Although I was inclined to order costs also, in view of the fact that there were some lapses on the part of the respondents also in moving appropriately at the right time, I refrain from ordering costs. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge