IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 16211 OF 2021
PETITIONER/S:
MYBUS UNITED SERVICE LLP,
REGISTRATION NO. LLP IN AAD 1184, ROOM NO. 234,
KTM COMPLEX, CHANGANACHERRY REPRESENTED BY ITS
DESIGNATED PARTNER, MR. TOM T. ABRAHAM, AGED 62
YEARS, S/O. ABRAHAM, THALAKULATHU HOUSE,
MADAPALLY P.O, CHANGANACHERRY, KOTTAYAM-686 546
BY ADVS.
JINU JOSEPH
ANU PHILIPOSE
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 DIRECTOR OF PANCHAYATS,
PANCHAYAT DIRECTORATE, PUBLIC OFFICE BUILDING,
LMS, VELLAYAMBALAM ROAD, PALAYAM,
THIRUVANANTHAPURAM-695 033
3 DEPUTY DIRECTOR OF PANCHAYAT,
CIVIL STATION, COLLECTORATE P.O, KOTTAYAM,
686002.
4 MUNDAKAYAM GRAMA PANCHAYAT.
MUNDAKAYAM P.O, MUNDAKAYAM-686 513, KOTTAYAM
DISTRICT, REPRESENTED BY ITS SECRETARY.
5 THE SECRETARY,
MUNDAKAYAM GRAMA PANCHAYAT, MUNDAKAYAM P.O-686
513, KOTTAYAM DISTRICT.
BY ADVS.
LIJI.J.VADAKEDOM
CHITHRA CHANDRASEKHARAN
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W.P.(C). No. 16211 of 2021
OTHER PRESENT:
SRI.JIBU.T.S, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P.(C). No. 16211 of 2021
P.V.KUNHIKRISHNAN, J.
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W.P.(C) No. 16211 of 2021
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Dated this the 27th day of July, 2022
JUDGMENT
The above writ petition is filed with following prayers:
"(i) Issue appropriate writ or order and set aside Ext Exhibit P-4 notice of the 5th respondent and all recovery proceedings pursuant to the same.
(ii) Issue a writ of mandamus or such other writ, order or direction commanding the 1st respondent to take a decision on the pending approval of remission granted to the petitioner by the 4th respondent detailed in Ext P-2 proceedings within such time frame as may be fixed by this Hon'ble Court.
(iii) Issue a writ of mandamus or such other writ, order of direction commanding the 4th respondent to take a decision on Ext P-7 representation as per Rule 5 of Kerala Panchayat Raj (Granting of Remission to Contractors & Lessees) Rules 1998 within the time provided therein.
(iv) Such other writ or order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case and in the interest of justice. " (sic) -4- W.P.(C). No. 16211 of 2021
2. The petitioner is the successful bidder for the tender of collecting fees from private bus operators using the services of Mundakkayam Grama Panchayat Bus stand for the financial year 2020-21 and made advance payment of 1 st Installment of Rs.1,52,000/-. Due to national lockdown and subsequent restrictions, it is the case of the petitioner that, the collections were badly affected even before 1 st April 2020. Hence the petitioner submitted Ext P1 request to the 4th respondent for remission of the fees as per The Kerala Panchayat Raj (Granting of remission to contractors and lessees) Rules 1998 for the period 2020-21. The Panchayat council vide Ext P2 decided to allow a remission of Rs.72,210/- for the period 01.04.2020 to 31.07.2020 and sent the same for approval from the 1st respondent as per the rules. It is the case of the petitioner that the approval is awaited. Thereafter the petitioner was served with Ext P4 demanding the entire contract amount -5- W.P.(C). No. 16211 of 2021 within 15 days without considering the pendency of approval from the 1st respondent. The petitioner's request to await the approval was not considered. The petitioner submitted Ext.P7 request for considering remission for the omitted period is also pending. Hence, this writ petition is filed.
3. Heard the counsel for the petitioner and the Standing Counsel appearing for the Panchayat. I also heard the Government Pleader.
4. The Standing Counsel takes me through the counter affidavit filed by respondents 4 and 5. The relevant paragraphs in the counter affidavit is extracted hereunder:
"3. That it is respectfully submitted that the petitioner was the successful bidder for the collection of fees from private stage carriages using the services of Mundakayam Panchayat bus stand for the year 2020-
21. The petitioner had made the bid for an amount of Rs.4,55,500/- excluding GST. The petitioner had remitted an amount of Rs.1,52,000/- as one third of the -6- W.P.(C). No. 16211 of 2021 auction amount and Rs 50,000/- as security deposit respectively. Also an amount of Rs.50,000/- was paid as per the direction of this Honourable Court in the interim order out of Rs 50,000/- paid by the petitioner an amount of Rs.7.627/- was deducted towards GST. The remaining amount is credited in the account of the petitioner. An amount of Rs.72,210/- is permitted as remission subject to the approval of the Government. After keeping aside the amount (which is subject to the Government Order) the remaining amount to be paid by the petitioner is Rs.1.38.917/-
4. That it is humbly submitted that on 17.08.2020 the petitioner made an application to the 5 respondent that due to Covid-19 pandemic petitioner could not collect service charges from the buses entering the stand due to the restrictions imposed by the Government in this regard. The application dated 17.08.2020 was considered and the Panchayat Committee after evaluating the situation on 3.9.2020 decided to give a remission for an amount of Rs.72,210/- for 58 days during which period the lock down was in existence subject to the approval of the Government."
5. In paragraphs 3 and 4, it is stated that the remission is already granted in the light of Ext.P9 Government Order.
The counsel submitted that the balance amount of Rs.1,38,917/-
is to be paid by the petitioner. The counsel for the petitioner -7- W.P.(C). No. 16211 of 2021 submitted that Ext.P7 request is submitted for getting the remission for the omitted period also. If that be so, there can be a direction to the Panchayat to consider Ext.P7 and pass appropriate orders, in accordance to law.
Therefore, this writ petition is disposed of with the following observations:
1. Paragraphs 3 and 4 of the counter affidavit dated 16.01.2022 of the respondents 4 and 5 are recorded.
2. The 4th respondent is directed to consider Ext.P7 and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within six weeks from the date of receipt of a copy of this judgment.
sd/-
P.V.KUNHIKRISHNAN JUDGE das -8- W.P.(C). No. 16211 of 2021 APPENDIX OF WP(C) 16211/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE 2ND RESPONDENT DATED 17.08.2020.
Exhibit P2 TRUE COPY OF THE DECISION TAKEN IN THE MEETING OF THE PANCHAYAT DATED 03.09.2020.
Exhibit P3 TRUE COPY OF THE REPRESENTATION MADE TO THE 3RD RESPONDENT DATED 27.01.2021.
Exhibit P4 TRUE COPY OF THE DEMAND NOTICE DATED 29.06.2021 ISSUED BY THE 5TH RESPONDENT.
Exhibit P5 TRUE COPY OF THE REPLY OF THE PETITIONER DATED 15.07.2021.
Exhibit P6 TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT DATED 15.07.2021.
Exhibit P7 TRUE COPY OF THE REQUEST DATED 30.07.2021 SEEKING REMISSION FOR OMITTED PERIOD.
Exhibit P8 TRUE COPY OF THE KERALA PANCHAYAT RAJ (GRANTING OF REMISSION TO CONTRACTORS AND LESSEES) RULES 1998.
Exhibit P9 TRUE COPY O F THE GO (ORDINARY) NO 1410/2021/LSGD DATED 27.7.2021