Kerala High Court
Ksrtc Represented By Its Managing ... vs K.Balakrishna Panicker on 5 September, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 5TH DAY OF SEPTEMBER 2012/14TH BHADRA 1934
SA.No. 870 of 1998 (C)
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AS.NO.18/1993 of ADDL.DISTRICT COURT,ALAPPUZHA.
OS.NO.5/1989 of PRINCIPAL SUB COURT,ALAPPUZHA
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APPELLANT/APPELLANT/1ST DEFENDANT IN OS:
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KSRTC REPRESENTED BY ITS MANAGING DIRECTOR,
TRANSPORT BHAVAN, THIRUVANANTHAPURAM.
BY ADVS.SRI.V.BHASKARA MENON
SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC
RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 & 3 IN OS:
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1. K.BALAKRISHNA PANICKER, KRISHNA VILAS,
CULLEN ROAD, ALAPPUZHA.
2. STATE OF KERALA,REPRESENTED BY THE DISTRICT COLLECTOR,
ALAPPUZHA.
3. SUPERINTENDING ENGINEER,ROAD AND BUILDINGS,
SOUTH CIRCULE, THIRUVANANTHAPURAM.
R1 BY ADV. SRI.R.KRISHNA RAJ
R2 & R3 BY GOVERNMENT PLEADER SMT.LILLY LESLIE
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 05-09-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
THOMAS P. JOSEPH, J.
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S.A. No.870 of 1998
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Dated this the 5th day of September, 2012
JUDGMENT
The second appeal arises from the judgment and decree of the District Court, Alappuzha in A.S. No.18 of 1993, modifying the judgment and decree of the Sub Court Alappuzha in O.S. No. 5 of 1989.
2. The first respondent/plaintiff, it is not disputed was the successful bidder for collection of toll charges at pallathuruthy
-Nedumudi bridge for the period from 01.01.1988 to 31.03.1989. The tender placed by the first respondent was accepted and confirmed by the 3rd respondent, the Superintending Engineer, Roads and Building for and on behalf of the second respondent, the State of Kerala. As per the tender and the consequent agreement (Ext.A1) executed between respondents 1 and 3 on 15.11.1988, the first respondent was permitted to collect toll charges from 01.11.1988 to 31.03.1989. As per Schedule 3 of Ext.A1, toll charges for stage carriage with or without passengers per trip was Rs.10/-. First respondent deposited Rs.1,17,300/- as security pursuant to Ext.A1, agreement. It is a case of the first respondent that in accordance with schedule 3 of S.A. No.870 of 1998 -: 2 :- Ext.A1, the appellant (KSRTC) did not pay toll charges. Instead, the appellant paid toll charges at the rate of Rs.15/- per bus per day. That resulted in loss to the first respondent. On enquiry, the first respondent learned that there was a high level conference called by the Government on 02.11.1988 in which it was decided that the appellant need pay only at the rate of Rs.15/- per bus per day. First respondent was not informed about the conference nor was he a party to that. Hence the decision if any in the conference will not bind him. The first respondent had deposited Rs.65,159/- with the 3rd respondent for the period ending on 01.12.1988, 15.12.1988 and 31.12.1988. According to the first respondent, he is not liable to pay the entire amount as provided in Ext.A1, agreement since the appellant has not paid toll charges at the rate of Rs.10/- per bus per trip. Hence the first respondent wanted a declaration that the appellant is liable to pay toll charges at the rate of Rs.10/- per bus per trip as stipulated in Ext.A1, that the amount due from the appellant to the first respondent is to be adjusted in the amount payable by the first respondent to the 3rd respondent and for consequential S.A. No.870 of 1998 -: 3 :- injunction.
3. Appellant contended that its liability to pay toll charges is only at the rate of Rs.15/- per bus per day. Respondents 2 and 3 contended that first respondent is entitled to collect toll charges as per Ext.A1, agreement. They further contended that as per Clause 3(2) of G.O.(P) 77/83/PW dated 22.07.1988 if the same vehicle has to use the bridge continuously and frequently for long period, the owner of such vehicle shall have the option to compound the toll for a period of one month or above but not exceeding one year, on payment of the amount equal to 1 = times. In the light of that, the appellant was to make the application to the first respondent for compounding the toll. It is further contended by the respondents 2 and 3 that the first respondent is not entitled to any remission from the amount payable as per Ext.A1.
4. The trial court held that the appellant is liable to pay toll charges as per schedule 3 of Ext.A1, agreement and that the conference of the appellant and others held on 02.11.1988 or the decision taken therein will not bind the first respondent. S.A. No.870 of 1998 -: 4 :- Accordingly the first respondent was given a decree as prayed for.
5. Respondents 2 and 3 challenged that judgment and decree in A.S. No. 121 of 1992. Appellant preferred A.S. No. 18 of 1993. The learned Additional District Judge, Alappuzha by common judgment dated 30.06.1997 allowed both the appeals in part and modified the judgment and decree of the trial court. The judgment and decree in A.S. No. 18 of 1993 is under challenge at the instance of the appellant/first defendant. Respondents 2 and 3 have not preferred any appeal against the judgment and decree in A.S. No. 121 of 1992.
6. The following substantial questions of law are framed for a decision:-
1) Whether the suit for declaration is entertain able for the specific purpose of recovery of money ?
2) Whether the provisions of an Agreement can be enforced against a stranger to that agreement ?
3) Whether the letter to the Secretary to Government, public works and Transport Department in its entirety, S.A. No.870 of 1998 -: 5 :- directs this appellants to apply for compounding the toll fee payable as per Rule 3(2) of the Kerala Rolls Levy Rules, 1983 ?
4) Whether collection of arrears of toll is permissible under the Kerala Tolls Levy Rule, 1983 ?
7. It is pointed out by the learned counsel for the appellant that no declaration concerning pecuniary liability could be granted under Sec.34 of the Specific Relief Act (for short 'the Act'). It is also contended by the learned counsel that since the appellant was not a party to Ext.A1 agreement the terms and conditions stipulated therein will not bind the appellant. A further contention is that necessary application is already preferred by the appellant to the first respondent to compound the toll. In the circumstances, it is contended that the first appellate court ought to have allowed A.S. No.18 of 1983 and dismissed the suit.
8.The learned counsel for first respondent has argued that so far as collection of toll charges is concerned, it is a matter between the first respondent and respondents 2 and 3. The S.A. No.870 of 1998 -: 6 :- junction of the appellant as a party is not required. Hence the appellant is bound by Ext.A1. It is argued that the decision taken in the high level conference on 02.11.1988 will not bind the first respondent as he was not a party to that conference.
9. I have also heard the learned Government Pleader.
10. So far as grant of declaration concerning non- pecuniary liability is concerned, though Sec.34 of the Act states that declaration may be granted with respect to any legal right or right as to property, it is not as if Sec.34 of the Act is exhaustive of the power of the court to grant declaration. Various authoritative pronouncements say that even beyond Sec.34 of the Act it is within the power of the court to grant declarative relief and that could even relate to non-pecuniary liability. Therefore, there is nothing wrong in the declaration prayed for by the first respondent.
11. The junction of the appellant was not required to fix toll charges since that is a matter between the first respondent and respondents 2 and 3. It is not disputed that the first respondent was the successful bidder for collection of toll charges. The S.A. No.870 of 1998 -: 7 :- collection of toll charges is governed by the provisions of the Kerala Tolls Act, 1976 (for short 'the Tolls Act') and the Kerala Tolls Levy Rules, 1983 (for short 'the Rules'). Under Sec. 3 of the Tolls Act the Government is entitled to levy toll. The right to collect toll is assigned to the first respondent by the State Government accepting his tender and executing Ext.A1, agreement. The appellant is bound by Ext.A1. It is not the case of the appellant that any exemption is granted to the vehicles belonging to it from the purview of Ext.A1. Therefore, it follows that the appellant is bound by the terms and conditions of Ext.A1 as to levy of toll. Appellant was liable to pay toll charges as per schedule 3 of Ext.A1.
12. Though it is contended that there was a high level conference on 02.11.1988 in which it was decided that the toll charges payable by the appellant would be Rs.15/- per bus per day, that decision if any will not bind the first respondent for the simple reason that first respondent was not a party to that decision.
13. The question arose whether assuming that the appellant S.A. No.870 of 1998 -: 8 :- was liable to pay toll charges as specified in schedule 3 of Ext.A1, first respondent could have sought any remission of the amount payable to the respondents 2 and 3. Though respondents 2 and 3 filed A.S.No.121 of 1992 against the judgment and decree of the trial court, the first appellate court has only given some respite for respondents 2 and 3 . Respondents 2 and 3 have not chosen to challenge the judgment and decree of the first appellate court in A.S. No. 121 of 1992. Therefore, it is not necessary for me to go into the question whether the first respondent is entitled to the remission against respondents 2 and 3.
14. Learned counsel for the appellant has contended that appropriate application has already been made to the first respondent as provided under Sec.5 of the Tolls Act to compound the toll charges. Assuming so, judgment and decree of the first appellate court takes care of that. It is seen from the judgment of the first appellate court that allowing the appeal in part, the first appellate court has directed that the first respondent is entitled to collect Rs.10/- each from the appellant in respect of S.A. No.870 of 1998 -: 9 :- every trip of its bus. It also directed that the first respondent is allowed to collect toll charges at the rate of 15/- per bus per day for the vehicles operated by the appellant and which applied for compounding of the toll fee during the contract period. That direction by the first appellate court would meet the contention of the appellant that it has already applied for compounding the toll fee.
15. The substantial questions of law framed are answered as above.
Resultantly,
1. The Second appeal is dismissed.
2. Parties are directed to bear their cost in this appeal.
Sd/-
smv THOMAS P.JOSEPH,
JUDGE
//True copy//
P.A. To Judge