IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1262 of 2010()
1. SHERIFF NAZIMUDEEN ,S/O.SHERIEF
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. THE DIVISIONAL FOREST OFFICER
3. THE DEPOT OFFICER
For Petitioner :SRI.VAKKOM N.VIJAYAN
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :04/11/2010
O R D E R
J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
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W.A. No. 1262 of 2010
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Dated this the 4th day of November, 2010
JUDGMENT
Ramachandra Menon, J.
The writ petitioner is the appellant. The writ petition was
filed challenging Exts.P4 and P5, whereby the entire amount
originally quoted by the appellant in respect of the ‘tender’ as well as
the ‘spot auction’ was sought to be realised. The contention of the
appellant/petitioner is that the ‘tender’ submitted by him was rejected
because of some technical defects, though the ‘spot auction’ was
confirmed in favour of the appellant subsequently. When the
appellant was directed to satisfy the liability under the auction as
well as the tender, the appellant effected some payment so as to
avoid black-listing by the department as contended in paragraph 6
of the writ petition. Thereafter the appellant submitted Ext.P3
representation pointing out that the tender was originally rejected
and it was later, that his tender was stated as accepted and the
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intimation of confirmation was issued much later, as borne by
Ext.P4 dated 08.10.2009;followed by Ext.P5 dated 20.01.2010
asking to clear the balance amount; lest adverse consequences
should follow. The writ petitioner sought for setting aside Exts.P4
and P5 and also for disposal of Ext.P3 representation preferred
before the second respondent.
2. A detailed statement was filed from the part of the
second respondent before the learned Single Judge specifically
contending in paragraph 5 as follows:
“The contention of the petitioner that tenders submitted by
the petitioner were rejected by the 2nd respondent due to defects,
etc., are false and hence denied by the respondents. It is
submitted that the 2nd respondent had confirmed on spot sale of 56
lots out of 101 lots bid by the petitioner on 27.8.2009. The
grievance of the petitioner is only in respect of 56 lots confirmed
on the spot. 3rd respondent had issued chalan to the petitioner on
2.11.2009 for the first month, and on 2.12.2009 for the second
month and on 1.1.2010 for the third month respectively after
expiry of grace period. It is submitted that on receipt of the
chalans issued by the 3rd respondent the petitioner submitted a
representation dt.3.11.2009 requesting to make payment of the
sale price for the lots auctioned by the petitioner. True copy of
the Representation dt.3.11.2009 submitted by the petitioner before
the 3rd respondent is produced herewith and marked as Annexure
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R2(b). Even after extension of time of three months by the Depot
Officer after grace period for remittance as per rules, the
petitioner had not remitted the balance amount. In the case of
spot confirmation, by the 2nd respondent, time for remittance was
over by 31.1.2010. In respect of lots confirmed by the
Conservator of Forests, Southern Circle, Kollam, a time
extendable beyond grace period was over by 14.2.2010. As per
conditions of sale, the petitioner has thus become a defaulter. It is
submitted that the petitioner has submitted another representation
on 13.2.2010 to this respondent requesting three months’ time to
remit the balance sale consideration and to remove the timber
auctioned by the petitioner. True copy of Representation dated
Nil submitted by the petitioner before this respondent is produced
herewith and marked as Annexure-R2(c). It is submitted that in
the representations submitted by the petitioner he has no case that
the tenders submitted by the petitioner were rejected by the 2nd
respondent and he has admitted the confirmation of sale in his
favour. The petitioner has stated in Annex-R2(b) representation
that the petitioner could not make payment due to the economic
crisis in the middle east. Therefore, it is evident from the above
representations that petitioner has set up a different case before
this Hon’ble Court for obtaining favourable orders by suppressing
material facts.”
3. Subsequently two more documents were produced
stating that the appellant had already sought for time to satisfy the
entire liability as borne by Exts.R2(b) and (c). It was in the said
circumstances that the appellant chose to produce Ext.P6 obtained
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under the relevant provisions of the Right to Information Act, to
substantiate the contention raised before the learned Single Judge
that the tender was originally rejected and that by virtue of some
endorsement in the proceedings, it was later shown as accepted at
4.30 P.M. (for the belated revelation that the tender submitted by
the appellant was the highest). It was always the case of the
appellant that the communication as to the confirmation of the
tender in favour of the appellant, after rejecting the same in the
evening on the date of auction, was never communicated to him.
During the course of hearing it was stated from the part of the
respondents that there was suppression of material facts by the
petitioner, in so far as the factum of rejection of the tender (as the
case put forward by the petitioner) was never pointed out in Exts.R2
(b) and (c), wherein the writ petitioner only sought for some more
time to satisfy the balance demand. It was in the said circumstances
that a finding in this regard was made by the learned Single Judge
and the writ petition was dismissed with cost oft `25,000/-.
4. On going through the materials on record, it is seen
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that the case as put forth by the appellant was very much stated in
Ext.P3 which is dated 22.9.2009. It is also revealed from Ext.P4
and other records that the tender was confirmed only on a
subsequent date as communicated to the appellant. It is further
revealed that the appellant was given time to satisfy the various
demands as to the amount that was to be realized pursuant to the
tender as well as public auction. This Court finds that the factual
particulars may have to be considered afresh so as to arrive at a
correct conclusion as to the true state of affairs. However, learned
counsel for the appellant submits that, in view of the subsequent
turn of events, re-auction has been conducted by the respondents
and the remaining timber has also been sold to somebody else. In
the said circumstances learned counsel for the appellant prays only
for a direction to delete the costs ordered by the learned Single,
Judge pointing out that there is absolutely no question of any
suppression of material facts on the part of the appellant. The
factum of rejection of the tender initially, though was strongly
resisted from the part of the respondents it has been brought to light
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from Ext.P6 (obtained under the “Right to Information Act’) that the
Tender was originally rejected due to some defects; but was later
shown as accepted at 4.30 p.m. The sequence of events was not
correctly narrated from the part of the respondents as well, till they
were confronted on the basis of Ext.P6.
In the circumstances, we do not propose to go into the
merits of the case any further, but for finding it fit and proper to
delete the costs ordered by the learned Single Judge. It is ordered
accordingly. The writ appeal is disposed of with the above
modification in the judgment.
J.Chelameswar,
Chief Justice
P.R.Ramachandra Menon,
Judge
vns