IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 29348 of 2002(R)
1. M.S.JOSE, AGED 41, S/O.LATE
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DISTRICT COLLECTOR, PATHANAMTHITTA.
3. THE DIVISIONAL FOREST OFFICER,
4. THE THASILDAR, (R.R), KOZHENCHERRY TALUK
5. THE VILLAGE OFFICER, MYLAPRA.
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent :GOVERNMENT PLEADER (FOREST)
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :30/09/2009
O R D E R
S.SIRI JAGAN, J.
==================
O.P.No. 29348 of 2002
==================
Dated this the 30th day of September, 2009
J U D G M E N T
This original petition is filed challenging revenue recovery
proceedings for recovery of damages due to the Forest Department
from the petitioner for breach of contract, since the petitioner did not,
after taking part in an auction, lift the articles sold to him after paying
the balance sale consideration. The contention raised in the original
petition is that the petitioner has not participated in the auction
conducted by the Forest Department and he has absolutely no
connection with the alleged auction and participation thereof.
2. In view of the specific contention of the petitioner that he
did not participate in the auction conducted on 20.7.1990 and revenue
recovery proceedings were initiated on the basis of fraudulent and
false documents, this Court, on 20.3.2006, passed the following order:
“It is seen that interim orders of stay was obtained by the
petitioner by denying the transaction in the following words in paragraph
2 of the O.P. “The Petitioner was not a bidder in the auction allegedly
conducted on 20.07.90. He did not deposit any amount and never
participated in any auction conducted by the forest department. If at all
there are any documents to the effect that petitioner participated in the
auction they are fabricated and false documents.” The serious allegation
and total denial of the transaction is controverted by the respondents
through counter affidavit. If petitioner is not the person who participated
in the auction, then the first duty of respondents is to identify the person
who participated in the auction. However, if petitioner is the person
who participated in the auction, then petitioner should take the
consequences for filing false affidavit in support of the suppression and
misrepresentation of facts abovestated which led to grant of stay by this
court. The petitioner is directed to file affidavit incorporating facts statedO.P.29348/02 2
in the O.P. or come out with true facts. Post on 29.3.2006.”
Pursuant thereto, the petitioner filed an affidavit dated 22.8.2006
again affirming that he had not participated in the auction conducted
by the Forest Department on 20.7.1990. Therefore, this Court passed
another order on 29.11.2007 ordering a vigilance enquiry as follows:
“Director, Vigilance is impleaded as additional sixth respondent in
this original petition.
2. Petitioner is challenging recovery proceedings for recovery
of compensation demanded by the Forest Department for breach of
contract in 1984. According to the Forest Department, petitioner
participated in the auction for sale of teak poles held on 20/07/1990 and
offered to purchase the teak poles for Rs.5,54,800/-. Even though
petitioner remitted Rs.20,000/- for participating in the auction, petitioner
failed to remit the balance amount, which led to cancellation of sale and
re-auction at the risk and cost of the purchaser in terms of the tender
conditions. However, when recovery proceedings were initiated for
recovery of Rs.1,09,722/- being the differential cost, petitioner first
approached civil court denying the transaction and later filed this original
petition after withdrawing the civil suit. Petitioner has completely denied
the transaction and alleged that Forest Department has put up a bogus
case against him. This Court passed an order on 20/03/2006 directing
the petitioner to file one more affidavit reaffirming his case of non-
involvement in the purchase transaction. Accordingly, petitioner has filed
one more affidavit on 22/08/2006 denying his involvement in the auction
sale conducted by the Forest Department.
3. Even though detailed counter affidavit is filed by the Forest
Department, they have not produced any evidence to relate the petitioner
with the first sale. It is not known as to what is the identity demanded
from bidders at the time of auction to ensure that the bidders are not
bogus persons or benami for others. No paper, signed by the petitioner
and the officials for the Forest Department, is produced in this Court,
atleast to compare his signature with that of in the papers filed in this
Court. It may be a case where petitioner may not be involved and Forest
Department allowed somebody else to participate in the auction in his
name and in that case, compensation should be recovered from the
forest officials concerned and not from the petitioner. However, if
petitioner, on enquiry, is found to be really involved and since he has
denied the same in this Court through affidavits filed, petitioner will
necessarily face prosecution for filing false affidavit in this Court, besides
compensation and other consequences. In order to sort out the issue, I
direct the Director, Vigilance to depute an Officer under him to conductO.P.29348/02 3
an enquiry and to identify the person who participated in the auction and,
if it is a case of somebody bidding in petitioner’s name and forest officials
allowed the sale, to identify the concerned official and recommend
appropriate action against him including recovery of the cost.
4. The additional sixth respondent is directed to depute an
officer under him, for conducting the enquiry, within a period of two
weeks from the date of receipt of a copy of this order, and file a report in
this Court within a period of one week thereafter. The Officer, so
appointed, will complete enquiry and file final report within a period of six
weeks from the date of his engagement.
Issue copy of this order to learned Government Pleader for
forwarding the same to the Director, Vigilance.”
Pursuant thereto, the Deputy Superintendent of Police, Vigilance and
Anti-Corruption Bureau, Pathanamthitta, has filed a report on
30.10.2008, wherein the ultimate conclusion is as follows:
“Even though the FSL report is not corroborating to the
involvement of Sri.M.S.Jose, Mannappuzha house, Cheenkalthadom P.O.,
Mylapra, Pathanamthitta in the participation of the auction for the sale of
teak poles held on 20.07.90 at Thora of Mannarappara Forest Range
Office, the available oral evidences collected during the Vigilance Enquiry
suggests that the petitioner Sri.M.S.Jose has participated in the auction
held on 20.07.90 at Mannarappara Forest Range.
RECOMMENDATION
(1) The available evidences collected during the Vigilance Enquiry
suggests that the petitioner Sri.M.S.Jose, Mannappuzha house,
Cheenkalthadom P.O., Mylapra, Pathanamthitta had participated in
the auction for the sale of teak poles held on 20.7.90 at Thora of
Mannarappara Forest Range Office under Konny Forest Division.
(2) Departmental auction against the Divisional Forest Officer, Konni and
Forest Officials who had failed to file reply to the Advocate Notice
dated 22.12.1992 filed on behalf of Sri.M.S.Jose, Mannappuzha
house, Cheenkalthadam P.O., Mylapra with the available records in
the Forest Division Office.
(3) Departmental action against the Divisional Officer, Konny and the
Forest Officials, who had failed to notify/publish the name of
Sri.M.S.Jose, Mannappuzha House, Cheenkalthadom P.O., Mylapra as
a “defaulter” for not allowing to participate in any auction by the
Forest Department from 1984, since revenue recovery was initiated
against him for the default in the auction dated 16.2.1984 inO.P.29348/02 4
Naduvathummoozhy Forest Range.”
3. A counter affidavit has been filed by the 3rd respondent,
wherein the 3rd respondent asserts that the petitioner had in fact
participated in the auction conducted on 20.7.1990. It is also pointed
out that as evidenced by Exts.R3(f) to R3(k), the petitioner had
participated in earlier auction conducted on 16.2.1984, in respect of
which, damages were recovered from him for breach of contract. It is
further clear from the counter affidavit that the petitioner himself has
filed a suit for injunction against the respondents in respect of the
same amount, which is now sought to be realised through Revenue
Recovery proceedings and that suit was dismissed as not pressed, by
Ext.R3(j) judgment. Therefore, according to the 3rd respondent, the
contention of the petitioner is not correct and he is liable for the
damages assessed.
4. The petitioner has filed a reply affidavit reiterating the
contention that he has not participated in the auction dated 20.7.1990.
5. The petitioner would contend that the report of the
Vigilance and Anti-Corruption Bureau is not on the basis of any
documents evidencing participation of the petitioner in the auction on
20.7.1990. The petitioner specifically refers to page 27 of the report,
wherein it has been stated that all the records relating to the
prosecution case were lost due to heavy flood occurred on 13.11.92
O.P.29348/02 5
and 14.12.92 at Thora, wherein the range office is situated. He also
refers to page 38 of the report, wherein it is stated that the expert
who compared the signature of the petitioner has opined that it is not
possible to arrive at any conclusion regarding the authorship of
questioned writings and signatures in comparison with the standard
writings, since the questioned items and the specimen had a time gap
of about 17 years. Therefore, according to the petitioner, this report
cannot be relied upon for the purpose of deciding that the petitioner
had in fact participated in the auction conducted on 20.7.1990.
6. I have considered the rival contentions in detail.
7. At the outset I note that the petitioner has not chosen the
file any objections to the report of the Vigilance and Anti-Corruption
Bureau, although the same was filed as early as 30.10.2008. Of
course, in the same it is stated that no documentary evidence was
available regarding the participation of the petitioner in the auction,
since the entire records were destroyed by a flood in the range office.
But it is specifically stated in the conclusion of the report that the oral
evidence collected during the vigilance enquiry suggests that the
petitioner has participated in the auction held on 20.7.1990 at
Mannarappara Forest Range office. Further, the petitioner had in fact
challenged his liability by filing O.S.No.45/2001 before the Subordinate
Judge, Pathanamthitta. Of course the petitioner filed this original
O.P.29348/02 6
petition challenging the revenue recovery proceedings. But from
Ext.R3(j) judgment I find that while getting the suit dismissed as not
pressed, the petitioner has not sought any reserved liberty to take up
his contentions in this original petition. In view of the same, I have no
hesitation to hold that the petitioner’s contention that he did not
participate in the auction conducted on 20.7.1990 cannot be accepted.
Since the entire contentions of the petitioner are based only on that
premise, I do not find any merit in this original petition and
accordingly, the same is dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
S.SIRI JAGAN, J.
==================
O.P.No. 29348 of 2002-R
==================
J U D G M E N T
30th September, 2009