Anil John vs. Cherthala Municipality - Kerala High Court, 05 March 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THUR AY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941 WP(C).No.6715 OF 2020(L) PETITIONER: ANIL JOHN AGED 41 YEARS S/O. M.O. JOHN, MANGALATH KARIYIL, CHERTHALA PO , CHERTHALA, ALAPPUZHA. BY ADVS. SRI.B.PRAMOD SMT.NAMITHA JYOTHISH RESPONDENTS: 1 CHERTHALA MUNICIPALITY MUNICIPAL OFFICE, CHERTHALA, PIN-688539, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY CHERTHALA MUNICIPALITY, MUNICIPAL OFFICE, CHERTHALA, PIN-688539. 3 THE STANDING COMMITTEE FOR FINANCE CHERTHALA MUNICIPALITY, MUNICIPAL OFFICE, CHERTHALA, PIN-688539, REPRESENTED BY ITS CHAIRMAN. 4 THE PRIVATE BUS OPERATORS ASSOCIATION PRIVATE BUS STAND, CHERTHALA PO , PIN-688539, REPRESENTED BY ITS SECRETARY. OTHER PRESENT: SRI.JOBY CYRIAC,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No.6715/2020 2 ALEXANDER THOMAS, J. ------------------------------------------- W.P.(C)No.6715 of 2020 ---------------------------------------------- Dated this the 5th day of March, 2020 JUDGMENT The case set up in this Writ Petition (Civil) is as follows:- The petitioner had been awarded the contract for collecting toll/fee for the financial year 2019- 2020 from the private buses being operated from the private bus stand, Cherthala maintained by the 1st respondent municipality. The grant of the contract was pursuant to the petitioner becoming successful bidder by quoting Rs.13,99,999/- with G.S.T at the rate 18% to be paid to the 1st respondent municipality in 3 instalments. The petitioner was entitled to collect Rs.40/- from each bus co-operate from the Cherthala bus stand in terms of Ext.P2 agreement executed with the 2nd respondent. The said rate had been fixed and published by the 1st respondent in Ext.P1 booklet called “Tender Conditions 2019-2020” as well. As a matter of fact the petitioner quoted the above amount on the expectation that he could collect Rs.40/- per bus per day. But it so happened that the private bus operators refused to pay the user fee at the rate of Rs.40/- citing inadequacy of infrastructure provided by the 1st respondent municipality and they gave only Rs.30/- per bus. When this matter was taken up with the 2nd respondent, it was assured that he would either talk with the private bus owners for paying the amount at the rate fixed (Rs 40/-) or in the

W.P.(C)No.6715/2020 3 alternative reduce the amount payable to the municipality. Since the private bus operators refused to pay the fee at the rate fixed by the municipality and the municipality, in spite of being alerted about the situation, keeping silent, the petitioner submitted a written request dated 14.06.2019 to the Secretary seeking intervention of the matter. Acting upon the said request, the 1st respondent convened meeting of all the stake holders including the 3rd standing committee on 22.07.2019. The petitioner duly attended the meeting and appraised the respondents 2 and 3 about the situation. But the representatives of the 4th respondent private bus operators' association, who attended the meeting stuck to their stand of giving only Rs.30/- per bus. In the said circumstances the meeting was wound up without taking any decision. However, the respondents 2 and 3 assured the petitioner that the matter will be followed up and grievance of the petitioner would be redressed. But no action was followed and in the said circumstances the petitioner submitted Ext.P5 representation. In the mean time the petitioner

had remitted

Rs.5,50,667/-

on 20.02.2019 Rs. 3,79,222/- on 06.09.2019, being the two instalments which included the GST component as well. Then again a meeting of the stake holders was convened by the 2nd respondent, but of no avail. So the petitioner again submitted Ext.P9 representation dated 05.12.2019 to the 2nd respondent urging immediate action in the matter, which was followed by Ext.P11 representation. But the said representation met with the same fate and thus the grievance of the petitioner was left without being redressed. While so the petitioner was served with

W.P.(C)No.6715/2020 4 Ext.P13 notice dated 22.02.2020 by the 2nd respondent Secretary to the petitioner directing him to remit the balance amount of Rs.8,88,880/- as the balance amount allegedly due from the petitioner. On enquiry the petitioner could understand that the said amount of Rs.8,88,888/- represents the balance principal amount, GST amount and the interest. However the respondents 1 to 3 are learnt to have taken a decision to proceed against the bus operators for realization of the deficient amount from them. Now the 1st respondent has invited tenders for the fanning out the contract for collection of user fee from the bus operator and when the petitioner approached the 2nd respondent for getting the details, the latter has told the former that he will not be permitted to participate in the tender without paying the amount demanded in Ext.P13. It is in the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “(i) Issue a writ of certiorari any other appropriate writ or order calling for the original of Ext.P13 and quashing the same. (ii) Declare that the petitioner is liable only to pay 3/4th of the bid amount offered by the petitioner and he is not liable to pay any interest on any portion of the bid amount. (iii) Issue a writ of mandamus or any other appropriate writ order or directing the 2nd respondent to permit the petitioner to participate in the tender for the grant of award for collecting fee from bus operators for the financial year 2020- 2021.”

Heard Sri. B. Pramod, learned counsel appearing for the petitioner and Sri. Joby Cyriac, learned counsel appearing for respondents 1 to 3 (Cherthala

W.P.(C)No.6715/2020 5 Municipality). In the nature of the orders proposed to be passed in this Writ Petition, notice to R4 will stand dispensed with.

The learned counsel for the petitioner submits that the petitioner will file objections against Ext.P13 before the 2nd respondent without any further delay and that this Court may direct the competent authority among respondents 1 and 2 to hear the petitioner and to take a considered decision on the matters raised in Exts.P5, P9 and P11 representations as well as in the representations/objections to be filed by the petitioner against Ext.P13 and that until then petitioner may be permitted to provisionally participate in the tender process of the next year by 2021. 5. Taking note of said limited submissions made by the petitioner, it is ordered that it is for the petitioner to immediately file written objections against Ext.P13 before the 2nd respondent without any delay, at any rate, within one week from the date notified for receiving certified copy of this judgment. The petitioner will file such written objections/representations along with certified copy of this judgment, before the 2nd respondent. On the petitioner filing such written objections, it shall be ensured by the 2nd respondent that the matters raised in Exts.P5, P9 and P11 along with said written objections against Ext.P13 shall be taken up for consideration and after affording reasonable opportunity of being heard to the petitioner, will take considered decision thereon in accordance with law, without much delay, preferably within a period of 2-3 weeks from the date of production of a certified copy of this judgment. In the meanwhile, the

W.P.(C)No.6715/2020 6 petitioner may be provisionally permitted to participate in the tender process for the next year 2021 by respondents 1 to 3 and such participation of the petitioner in the tender process will be provisional and will be depending upon the decisions to be taken on the above said matters, by the 2nd respondent as aforestated. So also, it is ordered to preserve the subject matter of the lis, until orders are passed on the above said matters as aforedirected, further coercive steps for enforcement of the impugned Ext.P13 shall be kept in abeyance. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ALEXANDER THOMAS, JUDGE. acd

W.P.(C)No.6715/2020 7 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE RELEVANT PAGES OF THE SAID BOOKLET EXHIBIT P2OF THE AGREEMENT EXECUTED BETWEEN THE PETITION AND THE 2ND RESPONDENT. EXHIBIT P3OF THE RECEIPT DATED 14.06.2019 SHOWING THE ACKNOWLEDGEMENT OF THE REPRESENTATION OF THE PETITIONER. EXHIBIT P4OF THE NOTICE OF THE MEETING DATED 18.07.2019 ISSUED TO THE PETITIONER. EXHIBIT P5OF THE REPRESENTATION DATED 05.09.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6OF THE RECEIPT DATED 05.09.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7OF THE RECEIPT DATED 20.02.2019. EXHIBIT P8OF THE RECEIPT DATED 06.08.2019. EXHIBIT P9OF THE REPRESENTATION DATED 04.12.2019. EXHIBIT P10OF THE ACKNOWLEDGMENT SHOWING ITS RECEIPT. EXHIBIT P11OF THE REPRESENTATION DATED 10.02.2020. EXHIBIT P12OF THE ACKNOWLEDGMENT SHOWING ITS RECEIPT. EXHIBIT P13OF THE NOTICE DATED 22.02.2020 BY THE 2ND RESPONDENT SECRETARY TO THE PETITIONER.