A P KOCHUDEVASSY Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is brought by the plaintiff against the judgment and decree of the learned Subordinate Judge at Irinjalakuda, dismissing his suit for recovery of amounts from the defendant which is the State of Kerala. The plaintiff is a wholesale ration dealer at Kottappuram in Kodungallur Taluk in Trichur District. He was appointed as a wholesale dealer under the Kerala Rationing Order, 1966. Exts. B3 and B4 are the agreements executed by him pursuant to his appointment by the District Collector. Under G. O No.3/65/Food dated 2-1-1965, the wholesale distributor was entitled to a certain rate of transport charges. The rate was revised and enhanced as per G. O. Rt. 56/70-Food dated 7-2-1970. By virtue of these orders a wholesale distributor is entitled to transport and incidental charges with reference to the zone applicable to him on the basis of distance. The zones have been constituted on the following basis:

(2.) A written statement was filed on behalf of the defendant contending that the plaintiff had knowingly and willingly acted upon the rate applicable to the II Zone as a result of which only such rate of charges had been collected from the consumers. By his conduct and acquiescence be led the authorities to believe that the distance between his depot and the Central Depots was such that he came in the II Zone. H was on that basis that transport and incidental charges were collected from the consumers and paid over to the plaintiff. The Government, however, fairly corrected the mistake, when it was brought to their notice, by placing him in the III Zone as from 1-8 1971. As from that date the correct charges are collected from the consumers and paid over to the plaintiff. To demand the higher rate of charges for the past period is to say that the Government should suffer the consequences of the plaintiff's negligence It is specifically stated in the written statement that the plaintiff was included in the II Zone with his full concurrence, knowledge and acquiescence.

(3.) The suit was dismissed by the learned Judge principally on the ground that the plaintiff, who was a resident of the locality and who had considerable experience in Government contracts, involving transport of goods by lorry, could not have made a mistake as to the distance, and he had therefore knowingly and willingly waived his right for higher payment, and was accordingly estopped from demanding the higher rate. The Judge also stated that there was no evidence that the plaintiff had suffered any loss as a result of the Government's failure to pay him the higher rate retrospectively.