SRI.LAIJU RAMAKRISHNAN(PRESIDENT)<br /> <br /> The complaint is filed against the opposite party for deficiency in service in conducting a public auction of the maintenance and collection of fees of comfort station owned by the opposite party.<br /> <br /> The complainant is a resident of Arakkulam Grama Panchayath. The opposite party published a public notice bearing No.A2 410/2006 with regard to a public auction of nine items owned by them during the period from 1.04.2006 to 31.03.2007. The second item specified in the public notice is that “maintenance and collection of fees of the comfort station situated in the Moolamattom Private Bus stand”. Public notice was served to the general public who are residing in the area and notice was affixed in many conspicuous places in the Arakkulam Grama Panchayath like the Village Office, Panchayath Office, KSRTC Bus Station etc. Copies of the public notice were given to Merchants Association, Moolamattom area and the merchants. As per the notice the public auction was held on 13.03.2006 at 11 AM at Panchayath Community Hall in the presence of Panchayath President, two Panchayath members, Junior Superintendent and the respective officers of the Arakkulam Grama Panchayath. The auction was conducted in accordance with the conditions specified in the notice as well as the rules. The complainant successfully bid the maintenance and collection of comfort station for the period from 1.04.2006 to 31.03.2007 for an amount of Rs.13,600/-. As per the auction rules, it is mandatory to deposit 1/3rd of the total auction amount as advance. The complainant deposited an amount of Rs.5,000/- on the same day itself. The amount deposited by the complainant is more than 1/3rd of the total amount. The auction amount in respect of the comfort station is the highest ever in the history of Arakkulam Grama Panchayath. Thereafter the opposite party was planning to set aside the auction upon the undue influence of two Panchayath members and one Mr.Sasi and Leelamma. The allegation is that publicity is not given for auction and the auction should again be conducted. The said persons Sasi and Leelamma are the persons conducting a canteen at that time in the KSEB Quarters, Moolamattom. These persons were present before the Arakkulam Grama Panchayath Conference Hall for bidding the auction on 13.03.2006 and they failed to bid the auction. . So the complainant has given a notice to the opposite party on 24.03.2006 under section 249 of the Kerala Panchayath Raj Act. Subsequently the complainant had filed a suit as OS.118/2006 before the Hon'ble Munsiff's Court, Thodupuzha for restraining the opposite party from prohibiting the re-auctioning the item No.2. The Hon'ble Munsiff's Court restrained the opposite party from re-auctioning the item No.2 specified in the public notice from 1.04.2006 to 31.03.2007. The complainant filed a mandatory injunction for directing the Ist opposite party to execute the auction by a document in favour of the complainant. The complainant is now no more interested in the auction. The complaint is filed for deficiency in service against the opposite party and also for getting the deposited amount of Rs.5,000/-. Also Rs.15,000/- claimed for compensation for mental agony and inconveniences. <br /> <br /> 2. The opposite party filed a written version and admitted that they have conducted an auction on 13.03.2006 and the complainant bid item No.2 for a sum of Rs.13,600/- and since he was the highest bidder the auction was tentatively fixed in his name and he was asked to remit 1/3rd of the total amount then and there. The complainant voluntarily remitted Rs.5,000/- which is something in excess of the 1/3rd and receipt was given for the same. The auction conducted by the Panchayath will become final only when it is confirmed by the Panchayath Committee. This fact was announced in public before the auction was started and the complainant was aware of this before he participated in the auction. As per rules the Panchayath committee can either confirm an auction or refuse confirmation even without assigning any reason. The Panchayath committee may not give confirmation to an auction if the committee feels that it will be better in the interest of the Panchayath to conduct a re-auction. In this case the committee was convinced that the bid amount obtained for item No.2 is comparatively low and the Panchayath will get more amount if a re-auction is conducted. Hence the Panchayath committee decided to conduct a re-auction and the committee has every authority to take such a decision. Nobody has influenced the committee for the purpose. The complainant did not give any notice to the opposite party and straight away filed a suit before the Munsiff's Court, Thodupuzha as OS No.118/2006 against the opposite party. A temporary injunction was granted against the opposite party for conducting a re-auction by the Munsiff's Court, Thodupuzha. The complainant also sought for a decree of mandatory injunction to direct the opposite party to confirm the auction in favour of the complainant and to execute a document to that effect. But after elaborate trial the Munsiff's Court, dismissed the suit. The complainant could have got back the sum of Rs.5,000/- paid by him at the time of auction from the Panchayath. Instead of getting back the amount the complainant had approached the Munsiff's Court with an unnecessary suit. Hence the complainant is not entitled to get any amount from the opposite party. The opposite party had to spend unnecessary money for defending the suit filed by the complainant. Hence the complainant is liable to compensate the opposite party.<br /> <br /> 3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to ?<br /> <br /> 4. The evidence consists of the oral testimony of PW1 and Exts.P1 and P2 marked on the side of the complainant and the oral testimony of DW1 and Ext.R1 marked on the side of the opposite party.<br /> <br /> 5. The POINT :- The complainant successfully bid the auction for the maintenance and collection of fees of comfort station for the period from 1.04.2006 to 31.03.2007, for an amount of Rs.13,600/- conducted by the opposite party. As per auction rules, it is mandatory to deposit 1/3rd of the total auction amount. Complainant deposited an amount of Rs.5,000/- on 13.03.2006 itself. Ext.P2 is the receipt of the same.<br /> Ext.P1 is the notice issued for the publicity of the auction. The auction was temporarily confirmed by the opposite party. The confirmation must be done by the Panchayath committee. A suit was filed before the Munsiff's Court, Thodupuzha as OS.118/2006 for seeking an injunction against the opposite party conducting further auction by set asiding the auction conducted on 13.03.2006. Even though temporary injunction was granted in favour of the complainant, the suit was dismissed finally after a long trial. The opposite party was examined as DW1. Ext.R1 is the true copy of the decision taken by the Panchayath committee meeting dated 22.03.2006. R1 says that three others were given application for taking the business with a higher amount than the amount of the complainant. So there is a chance of getting higher amount and the committee decided to reauction the same. As per DW1 auction was again conducted for a higher price. The suit filed by the complainant made a heavy loss to opposite party. So they are not ready to give back the amount deposited by the complainant on 13.03.2006. The only dispute regarding the matter is whether the amount deposited by the complainant is entitled to be returned. As per DW1, the Secretary of the Panchayath, delivered that the opposite party, re-auctioned the maintenance and collection of the comfort station by set asiding the auction conducted on 13.03.2006. The complainant successfully bid the auction on 13.03.2006 and deposited an amount of Rs.5,000/- which is more than the 1/3rd of the auction amount. The suit before the Munsiff's Court was only for a mandatory injunction to direct the opposite party to confirm the auction in favour of the complainant, not for the return of the deposited amount. The suit was dismissed by the Munsiff's Court after a long trial. No evidence adduced by both parties to show that the Munsiff's Court ordered for the cost of the suit when the suit was dismissed. It means that the litigation was not for deliberately vexing the opposite party. So the argument raised by the opposite party that, the suit filed by the complainant made financial loss to the opposite party, and so they are not ready for giving back the deposited amount to the complainant is not proper. We think it is fit to give back the deposited amount to the complainant because the business premises is re-auctioned by the opposite party. We are not ordering compensation to the complainant because the matter was trailled before the Munsiff's Court.<br /> <br /> As a result, the petition allowed. The opposite party is directed to return the deposit amount Rs.5,000/- to the complainant with 12% interest from 13.03.2006 and Rs.2,000/- as the cost of the petition within one month of receipt of a copy of this order, failing which the outstanding amount shall carry further interest at 12% per annum from the date of default.<br /> Pronounced in the Open Forum on this the 31st day of July, 2008 <br /> <br /> <br /> <br />