IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 AS.No. 297 of 2002(F) -------------------- OS.173/1995 of SUB COURT, THIRUVALLA .................... APPELLANT(S): PLAINTIFF ------------------------------ VIJAYAKRISHNAN, AGED 33, S/O. BHASKARA PANICKER, RESIDING AT LORD KRISHNA BHAVAN EDANADU MURI, CHENGANNOOR MURI, CHENGANNOOR TALUK. BY ADV. SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS RESPONDENT(S): DEFENDANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIATE, TRIVANDRUM. 2. DISTRICT COLLECTOR, PATHANAMTHITTA. GOVERNMENT PLEADER SRI. P.K. ABU FOR R1,2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. No. 297 OF 2002 = = = = = = = = = = = = = = = Dated this the 13th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thiruvalla in O.S.173/95. The suit is one for damages. It is the case of the plaintiff that he had bid the right to collect sand in auction from Pamba river in between Mulavelikadavu and Pichanattu Kadavu for the year 1994-95 for a sum of Rs.1,34,100/- and he had been issued a licence. It is submitted that in between the period 10.8.94 to 15.10.94 there was prohibition of transport from kadavu to the main road which virtually resulted in the plaintiff not able to collect sand as per the terms and conditions of the auction. He had to A.S. No. 297 OF 2002 -2- pay huge amount as hire for boats and for the service to the labourers who had been retained for the purpose of collecting sand from the river. Therefore he had estimated his damages at Rs.1,75,000/- but had restricted it up to Rs.50,000/- and thus the suit is filed. 2. On the other hand the defendants would contend there was no blockade as contended by the plaintiff and no loss has been occasioned on account of the conduct of the defendants and therefore the plaintiff is not entitled to claim any relief. The trial court after analysing the materials had dismissed the suit and it is against that decision the plaintiff has come up in appeal. 3. Heard the learned counsel for the appellant as well as the learned Government Pleader. A perusal of the records and connected A.S. No. 297 OF 2002 -3- papers would reveal that the plaintiff had bid the right to collect sand from the kadavu for a consideration of Rs.1,31,000/-. The auction was confirmed in the month of April and the plaintiff has started collecting sand from the river and from 10.8.94 till 15.10.94 as the road leading from the kadavu to the main road was prohibited for transportation, the plaintiff could not collect the sand from the river and transport it which resulted in the loss to the plaintiff. It can be seen from the materials available that the plaintiff moved an application before the District Magistrate, Pathanamthitta narrating his pitiable condition and a request was made whereby he requested the authority to allow the petitioner therein to take sand in the vehicles through the road. This application was filed on 12.8.94 and the A.S. No. 297 OF 2002 -4- District Collector ordered the Revenue Divisional Officer, Thiruvalla for urgent and necessary action. In turn the Revenue Divisional Officer forwarded it to the, Tahsildar Thiruvalla for enquiry and urgent report. Thereafter it is seen that the Tahsildar has submitted a report to the Revenue Divisional Officer on 6.9.94. It is true that only a photocopy of the report is available here and it is submitted that the original is not seen in the file. The Court has admitted that document as secondary evidence and the factum of the said report cannot be disputed at all. It refers to the endorsement made by the R.D.O. on 12.8.94 and the Tahsildar on a consideration of the entire materials reported that the petitioner has deposited a huge amount as bid amount. “If the traffic is prevented for A.S. No. 297 OF 2002 -5- transportation of river sand the petition is liable for irreparable loss. Moreover, the petitioner will be forced to approach the Court for the loss and compensation. So the ban imposed may be lifted for the time being.” When this report is filed it is evident that there was a stoppage of transportation and that is why the Tahsildar had requested for lifting the ban. It is true that the Collector as per the terms of the agreement is entitled to impose conditions only if the plaintiff has committed any breach. Restrictions can be imposed on account of the breach of the terms of the agreement. Hence there is no case for the defendants that the plaintiff has committed any breach or has acted unauthorizedly. So the ban imposed is improper. A.S. No. 297 OF 2002 -6- 4. When the plaintiff has bid the right in auction the reason for so doing was to remove the sand from the river as per the stipulations in the agreement and transport it so as to sell it to get the amount. Now on account of the ban, especially in the back drop that it is not on account of any reason caused by the plaintiff, was prevented from transporting sand from 10.8.94 to 15.10.99 which resulted in not taking the sand from the river for 2 months and the auction is confirmed on 28.4.94 and the amount involved is Rs.1,31,000/-. The period of auction is only up to 31.3.95, i.e. almost a period of 10 months and when it is apportioned on a monthly basis the amount comes as Rs.11,833/- per month which when multiplied by 2 months would be Rs.23,666/-. The plaintiff has also deposed before the Court that he had A.S. No. 297 OF 2002 -7- already engaged boat for the purpose of collecting sand and also had employed workers for the said purpose. It has to be stated the blockade was not at the inception but it came subsequently when the whole process was on a move and therefore as contended by the plaintiff he cannot dispense with boats and workman without any notice and if it is done it should have resulted in loss to him. So that also has to be taken into consideration for the period of two months. Relevant acceptable piece of other materials to calculate at a higher rate is not available before me. I feel taking into consideration that aspect plus the deprivation of taking sand for two months which is also to be considered and an amount of Rs.30,000/- can be awarded as damages to the plaintiff which by no stretch of imagination will be on the higher A.S. No. 297 OF 2002 -8- side. Therefore I set aside the judgment and decree of the trial court and allow the appeal and pass a decree as follows. 5. The plaintiff is given a decree for realisation of Rs.30,000/- with 6% interest on the said sum from the date of petition till realisation and the first defendant is liable to pay the amount within a period of 3 months from today. Parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. No. 297 OF 2002 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 297 OF 2002 = = = = = = = = = = = J U D G M E N T 13th July, 2010.