Kerala High Court
K.J.Lawrence vs Chellanam Grama Panchayath on 9 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945
AS NO. 204 OF 2003
AGAINST THE JUDGMENT AND DECREE DTD.12.7.2002 IN OS 104/2000 ON
THE FILE OF THE PRINCIPAL SUB JUDGES' COURT,KOCHI
APPELLANTS/DEFENDANT:
* 1 K.J.LAWRENCE,
S/O. KOCHERI JACOB, WARD NO.III, KUMBALANGHI
PANCHAYATH, COCHIN-5. (DIED)
2 SUPPL. A2. ALICE LAWRENCE,
W/O. K.J. LAWRENCE, WARD NO. 3, KUMBALANGHI.
3 SUPPL. A3. ARUN LAWRENCE,
RESIDING AT WARD NO.3, KUMBALANGHI.
4 SUPPL A4. DEEPAK,
S/O. LATE K.J. LAWRENCE, RESIDING AT WARD NO.3,
KUMBALANGHI.
(LEGAL HEIRS OF THE DECEASED APPELLANT ARE IMPLEADED AS
ADDITIONAL APPELLANTS 2 TO 4 - VIDE ORDER DATED
07/02/2008 IN IA 233/2008 )
BY ADV SRI.S.SUJIN
RESPONDENT/PLAINTIFF:
CHELLANAM GRAMA PANCHAYATH,
KANDAKADAVU P.O., COCHIN, REPRESENTED BY ITS SECRETARY.
BY ADV SRI.DINESH R.SHENOY
THIS APPEAL SUIT HAVING COME UP FOR FINAL HEARING ON
02.02.2024 AND THE COURT ON 09.02.2024, ALONG WITH AS.279/2003,
DELIVERED THE FOLLOWING:
2
A.S.Nos.204 and 279 of 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945
AS NO. 279 OF 2003
AGAINST THE JUDGMENT AND DECREE DTD.12.7.2002 IN OS
127/1999 ON THE FILE OF THE SUBORDINATE JUDGES' COURT,KOCHI
APPELLANT/PLAINTIFF:
1 * K.J.LAWRENCE, S/O.KOCHERI JACOB, WARD NO.III,
KUMBALANGHI (DIED).
2 SUPPL. A2. ALICE LAWRENCE,
W/O. LATE LAWRENCE, WARD NO.III, KUMBALANGHI.
3 SUPPL. A3. DEEPAK LAWRENCE,
S/O.LAWRENCCE, WARD NO.III, KUMBALANGHI.
4 SUPPL. A4. ARUN LAWRENCE,
S/O.LAWRENCE, WARD NO.III, KUMBALANGHI.
(LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE
IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 4 -
VIDE ORDER DATED 22/3/2016 IN IA 3995/2007 )
BY ADV SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
RESPONDENT/DEFENDANT:
CHELLANAM GRAMA PANCHAYATH,
ANDIKADAVU P O, COCHIN, REP. BY ITS SECRETARY.
BY ADVS.DINESH R.SHENOY
P.ROHIT PREMANANDAN SHENOY(K/000195/2017)
SILESH S. PRABHU(K/510/2020)
THIS APPEAL SUIT HAVING COME UP FOR FINAL HEARING ON
02.02.2024 AND THE COURT ON 09.02.2024, ALONG WITH
AS.204/2003, DELIVERED THE FOLLOWING:
3
A.S.Nos.204 and 279 of 2003
C.S.SUDHA, J.
------------------------------------
A.S.Nos.204 and 279 of 2003
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Dated this the 9th day of February, 2024
JUDGMENT
These appeals are against the common judgment and decree in O.S.No.127/1999 and O.S.No.104/2000 on the file of the Subordinate Judges' Court, Cochin. A.S.No.204/2003 is against the judgment and decree in O.S.No.104/2000 and A.S.No.279/2003, against the judgment and decree in O.S.No.127/1999. The parties will be referred to as described in O.S.No.127/1999.
2. The facts in O.S.No.127/1999 are briefly as follows - property having an extent of about 40 acres, comprised in Survey No.358, Chellanam Grama Panchyat known as 'Paruthi Thodu Chal', water-land, intended for prawn filtration and originally owned by the Government of Kerala, is now vested with the defendant Grama Panchayat. Every year the panchayat auctions the right for fishing in this property. The property is lying in an "L" shape with an opening to the backwater on the southern side in which area a big sluice has been fixed to regulate the flow of water. 4 A.S.Nos.204 and 279 of 2003 During high-tide, water with larvae of prawns would come to this side and by filtration during low-tide, water would flow out. Prawn larvae would be developed in due course into fully grown up prawns within a period of two to three months. Pursuant to an auction notice dated 18/02/1999 published by the defendant which was modified by a further notice dated 11/03/1999, the plaintiff bid in the auction. As per the conditions in the auction notice, every participant had to deposit ₹15,000/-. In the initial bidding, the defendant was not satisfied regarding the bid amount offered by the participants. Hence it was re-auctioned in which the plaintiff was the highest bidder and hence the auction was confirmed in his name. The amount payable for one year was ₹6,55,000/-. As per the terms and conditions of the notice, on confirmation of the auction, the plaintiff was to deposit 50% of the bid amount on or before 31/03/1999 and thereafter to execute the necessary agreement. The plaintiff was entitled to be in possession of the property from 01/04/1999 till 31/03/2000. On 31/03/1999, the plaintiff paid an amount of ₹3,12,500/- as per the tender conditions.
2.1. When the plaintiff bid the auction, he had brought to the notice of the defendant that the road that was being constructed across the Paruthi 5 A.S.Nos.204 and 279 of 2003 Thodu chal in the east-to-west direction would affect the flow of water and block the chal and hence necessary provision should be made for the free flow of water so as to conduct fishing operations. The plaintiff was informed by the defendant that the road had not been constructed with the latter's consent and that the offending portion of the road would be removed to ensure free flow of the water to the chal as was done in the past. The plaintiff was also told that if necessary, a similar sluice equivalent in size to the one that had been fixed on the southern side of the property, in the place where the road was formed, would be provided for the smooth flow of water. It was on the basis of such an assurance, the aforesaid amount had been remitted by the plaintiff. Contrary to the promise, the defendant did not hand-over the chal to the plaintiff. The defendant also did not keep up the assurances given to the plaintiff. It was thereafter noticed that pipes had been put beneath the road due to which practically no flow of water was possible, which adversely affected the flow of larvae into that chal and whatever larvae were there in the chal came to be destroyed. This matter was again brought to the notice of the defendant. However, no action was taken. The plaintiff expressed his inability to occupy the chal due to the aforesaid developments. The 6 A.S.Nos.204 and 279 of 2003 plaintiff has also come to know that the construction of the road with sluice was done within the knowledge of the defendant, despite which they did not incorporate the same in the tender conditions.
2.2. The plaintiff received letters dated 19/05/1999 and 08/06/1999 from the defendant requesting the execution of the bond pursuant to the auction being confirmed. The plaintiff was not prepared to execute the bond since the defendant virtually failed to fulfil the assurances given, which was a material condition of the contract. Hence a notice dated 16/06/1999 under Section 249 of the Panchayat Raj Act, 1994 was sent to the defendant informing the aforesaid facts. The plaintiff demanded the refund of the amount paid on 31/03/1999 along with the earnest money deposited. It was also pointed out to the defendant that, on a few occasions though the plaintiff had attempted to conduct fishing operations, it was a failure. The estimated yield was less than 30% of the normal yield. By letter dated 08/06/1999 the plaintiff was informed that the defendant was proposing to cancel the auction and conduct re-auction. The plaintiff had appointed workers from 01/04/1999 to conduct the fishing operations. He had also provided a shelter near the sluice on the southern side of the property for the purpose of maintaining and looking after the 7 A.S.Nos.204 and 279 of 2003 property for which watchmen were also appointed. Thus he had incurred a sum of ₹75,000/-. The defendant by letter dated 23/06/1999 informed that the contract was being cancelled as the terms and conditions of the contract have been violated. The defendant had also given a reply to the notice issued by the plaintiff raising false and untenable contentions. The contention in the reply notice that the work of the bund had almost been completed when the plaintiff had bid in the auction, is false. Though the defendant after cancelling the contract with the plaintiff conducted re- auction, there were no bidders, which was because the constructions made had affected the fishing operations. As the breach has been committed by defendant, the plaintiff is entitled to realise the expenses of ₹75,000/- towards damages as well as for refund of the amount remitted by him.
3. The defendant/panchayat is the plaintiff in O.S.No.104/2000. According to the defendant, the plaintiff while bidding in the auction was well aware of the constructions that had been made near the site. The allegation that the defendant/panchayat had given assurances as referred to in the plaint is incorrect and false. No such assurances had been given by the defendant. The plaintiff had made profit much more than the amount spent by him. Though he was bound to produce the solvency certificate 8 A.S.Nos.204 and 279 of 2003 and also execute a bond in favour of the defendant, he failed to do so. The plaintiff also did not deposit the balance amount due to the defendant. Hence in such circumstances the defendant had to conduct re-auction and as the fishing season was over by then, there were no bidders. Thereafter the right to conduct fishing operation was given to one A.N.Ramesh for an amount of ₹85,000/-. Due to the conduct of the plaintiff, the defendant had suffered a loss of ₹2,42,500/- being the balance amount due from the plaintiff towards the auction. The defendant had also incurred expenditure for conducting re-auction. Hence, O.S.No.104/2000 was filed to recover the aforesaid amounts.
4. On completion of pleadings, the parties went to trial. O.S.No.127/1999 was treated as the main case in which evidence was recorded. PW1 to PW4 were examined and Exts.A1 to A11 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B8 were marked on the side of the defendant. Ext.C1 and Ext.C1(a), the report and plan of the Advocate Commissioner have also been marked. The trial court on an appreciation of oral and documentary evidence and after hearing both sides, by the impugned judgment dismissed O.S.No.127/1999 and decreed O.S.No.104/2000. Aggrieved, the plaintiff 9 A.S.Nos.204 and 279 of 2003 has come up in appeal.
5. The points that arise for consideration in these appeals are whether there is any infirmity in the findings of the trial court calling for an interference by this Court.
6. Heard both sides.
7. The evidence on record shows that the plaintiff was aware of the construction of the bund before he had bid in the auction. That appears to be the reason why the bid amount for the year the plaintiff had auctioned seems to have been much less than the bid amount of the previous years. The plaintiff examined as PW1 deposed that he had never visited or inspected the site before he bid in the auction. He also was aware that the bidder of the previous year being unhappy with the returns from the fishing operations, had filed a suit against the defendant/panchayat. It was knowing all these facts, the plaintiff had bid in the auction. It was for the plaintiff to visit the site and understand the conditions available at the site before he bid in the auction. It is also difficult to believe that he had never inspected or visited the site before he bid in the auction, because the bid amount of ₹6,55,000/- was not a paltry amount then. The plaintiff seems to have understood and was well aware of all the factors involved before he 10 A.S.Nos.204 and 279 of 2003 bid the auction.
8. The learned counsel for the plaintiff/appellant quite persuasively argued that the defendant panchayat ought to have kept their oral promise/assurances to the plaintiff that the construction of the bund and laying of the pipe would be removed or laid in such a manner that the fishing operations would not be affected. It is difficult to believe that such an oral assurance or promise was given by the defendant. Even assuming that there had been such an oral agreement, the plaintiff ought to have led evidence regarding the same. But there is absolutely no evidence to substantiate the allegation of the plaintiff that there was such an oral assurance or promise given by the panchayat. Further, if the construction of the bund or laying of the pipe resulting in adversely affecting the fishing operations had been done after the plaintiff had bid in the auction, he could have taken steps for summoning those documents from the authorities concerned. The said course of action has also not been done by the plaintiff. Therefore from the materials on record, the trial court rightly concluded that the plaintiff was well aware of the construction of the bund as well as the laying of the pipe before he bid in the auction and that his case of oral assurance given by the panchayat has not been substantiated. I 11 A.S.Nos.204 and 279 of 2003 find no infirmity in the findings of the trial court calling for an interference by this Court.
In the result, the appeals are dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/