Petitioner challenging demand for balance contract amount after waiver was granted due to unauthorized hoarding removal. Court held waiver not subject to 1999 Rules, set aside demand, and declared prior resolution non-operative. Petitioner allowed.
Demand notice set aside; Resolution of Municipality declared non-operative; Writ petition allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938
WP(C).No. 10992 of 2008 (H)
PETITIONER:
K.P. BASHEER KOCHUPARAMBIL, THAZHATHANGADY, KOTTAYAM.
BY ADV. SRI.SURIN GEORGE IPE
RESPONDENTS:
THE KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, KOTTAYAM-686 001.
BY ADVS. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI. SIBY MATHEW, SC FOR R
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 10992 of 2008 (H)
APPENDIX
PETITIONER'S EXHIBITS :-
| EXT.P1 | - | COPY OF THE PROCEEDINGS OF THE RESPONDENT DATED 27.07.2007. |
|---|---|---|
| EXT.P2 | - | COPY OF THE REPRESENTATION DATED 01.08.2008. |
| EXT.P3 | - | COPY OF THE RESOLUTION OF THE MUNICIPAL COUNCIL DATED 07.08.2007. |
| EXT.P4 | - | COPY OF THE LAWYERS NOTICE DATED 18.01.2008. |
| EXT.P5 | - | COPY OF THE NOTICE ISSUED BY THE RESPONDENT DATED 11.02.2008. |
RESPONDENTS' EXHIBITS:-
| ------------------ | --------- | ------------ |
|---|---|---|
| EXT.R1(A) | - | COPY OF ORDER NO.61090/F.MI/08/LSGD DATED 07.10.2008. |
| EXT.R1(B) | - | COPY OF MINUTES OF RESOLUTION NO.43 DATED 15.09.2007 PASSED BY THE MUNICIPAL COUNCIL. |
| EXT.R1(C) | - | COPY OF LETTER DATED 10.10.2007 ISSUED BY THE 1ST RESPONDENT TO THE GOVERNMENT ALONG WITH EXT.R1(B). |
//TRUE COPY//
P.A. TO JUDGE
sp
K. VINOD CHANDRAN, J.
---------------------------------W.P(C). No.10992 of 2008-H
---------------------------------Dated this the 9th day of June, 2016
JUDGMENT
The petitioner is concerned with a demand raised at Ext.P6, which, according to him, is against the decision of the Municipality. The brief facts to be noticed are that the petitioner obtained a contract for collection of advertisement tax, as exigiable from the hoardings erected within the Municipality. The
total contract amount was Rs.4,51,786/-.
W.P(C). No.10992 of 2008-H
2
the income of the petitioner. The petitioner approached the Municipality with a request for waiving deposit of the full amounts agreed as per the contract.
W.P(C). No.10992 of 2008-H
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the Government was under the Kerala Municipality (Writing Off Irrecoverable Amounts) Rules, 1999. The reliance placed is on Rule 4, which interdicts any amount surcharged under Section 295, from being written off without the prior approval of the Government. Admittedly, the amounts now sought to be waived is not a surcharge amount under Section 295. Under Section 295, the Local Fund Examiner is entitled to initiate surcharge proceedings, which are to be under Kerala Local Fund Audit Act, 1940. Only such amounts surcharged on audit deal would be covered under Section 4.
W.P(C). No.10992 of 2008-H
4
Secretary of the Panchayat, when the amount is within the limit specified in Sub-Rule 3 of Rule 3. For any amounts exceeding the maximum permitted to be waived by the Standing Committee, the Municipal Council is the authority. In the present case, the resolution has been taken by the Municipal Council as per Ext.P3. The resolution is also not writing off of irrecoverable amount. Taking into consideration the hardship and loss caused to the petitioner, the petitioner was given a reduction on the contracted amount.
In such circumstance, this Court is of the opinion that the amounts waived by the Council would not come under the Rule 4 of the Rules of 1999. The demand notice at Ext.P6 is set aside. It is declared that the resolution of the Municipality at Ext.P5 shall not be operative.
W.P(C). No.10992 of 2008-H
5
The Rules of 1999 being not applicable, Ext.R1
(a) is of no consequence.
The writ petition is allowed. No costs.
Sd/-
K. VINOD CHANDRAN, JUDGE.
//True Copy//
P.A. to Judge.
sp/09/06/16
1 issue framed by the court
Whether the reduction in contract amount granted by the Municipality falls under the Kerala Municipality (Writing Off Irrecoverable Amounts) Rules, 1999.
K.P. BASHEER KOCHUPARAMBIL
THE KOTTAYAM MUNICIPALITY
K. VINOD CHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
