NIZAR A Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) The petitioner executed Ext.P1 agreement with the second respondent Municipality in the matter of collection of fees from the buses, for television advertisements and mike announcements in the Municipality bus stand premises. Alleging that the petitioner failed to remit the amount in tune with the terms of Ext.P1 contract Ext.P9 notice dated 13.8.2014 has been issued by the second respondent. As per the same, the petitioner was directed to pay an amount of Rs. 7,74,543 (Rupees Seven lakhs seventy four thousand five hundred and forty three only) within 48 hours. In case of his failure to remit the said amount within the above stipulated time he was cautioned that Ext.P1 contract would be cancelled. There is dispute regarding the amount remaining in arrears to be paid to the second respondent Municipality in terms of the contract. Prior to the issuance of Ext.P9, Ext.P6 notice was served on the petitioner. As per Ext.P6, an amount of Rs. 5,72,700 (Rupees Five lakhs seventy two thousand seven hundred only) was demanded. Even prior to that the petitioner was served with Ext.P3 notice. Under Ext.P3 the petitioner was required to pay an amount of Rs. 3,24,210 (Rupees Three lakhs twenty four thousand two hundred and ten only). After the receipt of Exts.P3 and P6 notices the petitioner preferred Ext.P7 appeal. Along with Ext.P7 appeal the petitioner filed Ext.P8 petition seeking stay of all further proceedings pursuant to Exts.P3 and P6. It is during the pendency of Ext.P7 appeal that Ext.P9 notice was issued. As per Ext.P9 it was revealed to the petitioner that his appeal would be entertained only on remittance of the amount demanded under Ext.P9. It is in the said circumstances that this writ petition has been filed seeking quashment of Ext.P9 and issuance of a writ of mandamus commanding the first respondent to consider and pass orders on Exts.P7 and P8.

(2.) The learned standing counsel appearing for the respondents submitted that in terms of Section 538 read with Section 509(11) of the Kerala Municipality Act, 1994, Ext.P7 appeal preferred by the petitioner could be entertained only if the petitioner pays the entire amount demanded as per Ext.P9. The learned counsel for the petitioner stoutly resisted the said contention and submitted that such a strained interpretation of the aforesaid provisions would virtually deprive the right of the aggrieved party to impeach the correctness of the order and ultimately would make it nugatory. In view of the rival submissions it is only appropriate to refer to the said relevant provisions and they read thus:-