C.B.GOVINDANKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ petition is filed challenging Ext.P1 revenue recovery demand notice issued to the petitioner under Sec.210 of the Kerala Panchayat Raj Act, 1994 (for short 'the Act') by the 2nd respondent for recovering the alleged loss caused to the Panchayat due to re-auction of the Chittoor - Mulampally Ferry Service. The petitioner had entered into an agreement with the 4th respondent Panchayat on 4/5/2010, for a period of one year, for conducting the ferry service between Chittoor and Mulampally and the aforesaid agreement was expired on 31/3/2011. As per the said agreement, an amount of Rs.3,80,500/- is to be deposited to the Panchayat for conducting the ferry service. Subsequently, the petitioner could not proceed with the ferry service and thereupon, the 4th respondent Panchayat re-auctioned the ferry service to another person and the Panchayat has suffered heavy loss, by the re-auction.

(2.) According to the Panchayat, as per the contract, the petitioner is duty bound to conduct the ferry service without any break. But, contrary to the terms of the contract, the petitioner could not conduct the ferry service properly and later the service itself ceased to exist. The Panchayat is duty bound to consider the grievance of the public. In such circumstance, the Panchayat had to conduct a re- auction at the risk and cost of the petitioner, since he stopped the ferry service abruptly during the contract period. In short, according to the Panchayat, the petitioner had committed breach of contract. Therefore, according to the terms of contract, the 4th respondent Panchayat has the right to realise the loss suffered due to breach of contract allegedly committed by the petitioner. The Panchayat has the right to initiate action for realisation of the loss suffered by the Panchayat and thereupon, initiated proceedings under the Revenue Recovery Act to realise an amount of Rs.58,850/- with interest from the petitioner. Consequently, Exts.P1 and P2 notices are issued under the provisions of the Revenue Recovery Act.

(3.) The petitioner submits that the 4th respondent Panchayat failed to carry out their promises, rather they initiated hasty measures, to terminate the contract, for aiding some interested persons, who are having high political influence. He has not committed breach of contract. So, he is not liable to pay any amount. The amounts quantified under Exts.P1 and P2 are liquidated damage, which require adjudication by the civil court or an Arbitrator. The amount allegedly due from him is not recoverable under the provisions of the Revenue Recovery Act, as arrear of public revenue, as the same is not permissible under Sec.210 of the Act. As per the Act, any arrear of cess, rate, surcharge or tax imposed or fees levied under the Act alone will be recoverable, as arrear of public revenue by resorting to the proceeding under the Revenue Recovery Act and the amount claimed as unliquidated loss suffered by the Panchayat would not fall under any of the aforesaid heads. It is with these averments, this writ petition is filed with a prayer to issue a writ of certiorari calling for Exts.P1 and P2 and quash the same.