IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7669 of 2008(K)
1. K.C.MOHAMMED IQBAL, 'KAPPACHALIL HOUSE,'
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIVISIONAL FOREST OFFICER,
3. THE DEPOT OFFICER, CHETTIKULAM DEPOT,
4. THE DEPOT OFFICER, MUDIKKAL DEPOT,
5. THE DEPOT OFFICER, VARAPPUZHA DEPOT,
6. THE DEPOT OFFICER, VEETTUR DEPOT,
7. THE DEPOT OFFICER, CHALAKKUDY DEPOT,
8. THE DEPOT OFFICER, CHALIYAM DEPOT,
For Petitioner :SRI.R.RAJESH KORMATH
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :29/05/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) Nos. 7669 & 7682 of 2008
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Dated this, the 29th May, 2009.
J U D G M E N T
The petitioner is the same in both these writ petitions. He is an
A Class contractor registered with the Forest Department. He
entered into agreements with the 1st respondent to work down timber
and firewood from certain teak plantations belonging to the Forest
Department. As per clause 11 of the conditions of the agreement, the
contractor is to deliver all timber, billets/firewood obtained from the
marked trees at the depots and in case of billets/firewood, the
contractor has to stack them at the depots in the manner as directed
by the Depot Officer. The Depot Officer is to give a receipt in the
prescribed form (depot receipt) to the contractor within 24 hours of
delivering the produce. As per clause 19 of the agreement, the
contractor is entitled to receive the payment at the rate mentioned in
the schedule to the agreement, which is inclusive of all incidental
charges. Clause 19 also stipulates that the payment shall be made on
production of depot receipt or acknowledgment of receipt of the
produce from the Depot Officer. The petitioner’s grievance in this
writ petition is that although the petitioner has stacked timber
amounting to 131.947 cubic metres delivered by the petitioner
between 15-5-2007 to 21-12-2007, respondents 2 to 8 are
withholding the issue of depot receipts illegally on extraneous
considerations. In W.P(C) No. 7669/2008,s the petitioner claims
payment for 131.947 cubic meters of timber delivered at the depots.
In W.P(C) No. 7682/2008, the petitioner claims payment for 272.807
cubic meters of timber delivered at the depots. Therefore, the
petitioner has filed this writ petition seeking the following reliefs:
W.P.C. No. 7669 & 7682/08. -: 2 :-
W.P(C) No. 7660/2008.
“i) Issue a writ of mandamus or any other appropriate writ,
direction or order commanding respondents 3 to 8 to issue to the
petitioner forthwith receipts in the prescribed form (Depot
receipts) for 131.947 cubic metres of timber delivered by the
petitioner at the Depots.
W.P(C) No. 7682/2008
ii) Direct the 2nd respondent to pay the bill number 29/2007
dated 17-9-2007 for an amount of Rs.1,09,940/- (Rupees one lakh
nine thousand, nine hundred and forty) to the petitioner forthwith,
pending disposal of the above writ petition.
iii) Direct respondents 3 to 8 to issue to the petitioner forthwith
receipts in the prescribed form (Depot Receipts) for 272.807 cubic
metres of timber delivered by the petitioner at the Depots,
pending disposal of the above writ petition.”
2. A statement has been filed by the 2nd respondent in which it
is stated as follows:
3. It is submitted that the 2nd respondent has received the
Deport Receipts, as regards the timber, delivered by the petitioner
to the respective depots except from one depot, as alleged in the
writ petition. A copy of the receipt is also usually issued to the
petitioner by the concerned Depot Officers. Any how, this
respondent has received depot receipt except from one depot.
4. The further allegation that amounts are due to the
petitioner on the basis of the depot receipts is not correct and is
disputed by the Department.
5. It is submitted that petitioner was a successful bidder in
tenders for working down timber, billets and firewood from a total
number of five teak plantations to various depots from Chalakudy
Forest Division. Out of this five teak plantations, three plantations
namely 1925 Teak Plantation Kannattupadam, 1926 Teak
Plantation Kannattupadam and 1935 Teak Plantation Kuttenchira
were confirmed in the name of the petitioner by the Chief
Conservator of Forests (NR), Kozhikode and the petitioner also
have executed agreement with the 2nd respondent on 22.1.2007. In
accordance with the agreement, the petitioner was to work down
the timber billets and firewood within four months from the date of
agreement. This was not done by the petitioner and he committed
default. He has partly carried out the works in 1925 and 1935
Teak Plantations and not commenced the work in 1926 Teak
Plantation. Thereafter, the time was further extended by fourW.P.C. No. 7669 & 7682/08. -: 3 :-
counts up to 21.12.2007 by the appropriate authority as requested
by the petitioner and in spite of the extension so granted, the
petitioner failed to comply with the agreement. It is submitted
that as regards the 1925 Kannattupadam Teak Plantation and 1935
Teak Plantation at Kuttanchira, the petitioner has executed
approximately 47 percent and 57 percent of the work respectively.
This is the situation, even after the expiry of the extended period
of seven months and grace period of four months (total 11
months). In view of the fact that the petitioner had committed
default of the terms of the agreement, the 2nd respondent has
exercised his authority under Clause 45 of the Agreement and
have made arrangement for completing the work at the risk and
cost of the petitioner. It is submitted that the proceedings for
completion of the work by making alternate arrangements is being
done and the loss caused to the Government can be finalized only
after finalizing the alternate arrangements for completing the
works. The loss sustained to the Government in completing the
defaulted work has to be realized from the petitioner in view of
Clause 45 of the Agreement.
6. Moreover, the delay in executing the work has caused
heavy loss to the Government on several accounts, namely, the
trees cut are lying in the plantation exposed to sun and rain
resulting in lowering the quality of the same. Moreover, the re-
planting regime, of the department has been delayed for more than
one year resulting in lapse of funds, increase in cost of raising the
new plantation as well as delay in realizing the revenue.
7. This being the actual facts, until finalization of the loss
sustained to Government, the petitioner is not entitled to get any
amount for the part work as he is a defaulter of contract.
Moreover, as regards working down timber from 1926 Chettikulam
Teak Plantation and 1935 Rama Varma Teak Plantation is
concerned, petitioner had placed tenders and was the lowest
tenderer. In view of the tender conditions, after awarding the
work if default is committed by the lowest tenderer it would have
to retender at the risk and cost of the lowest tenderer. The
petitioner had, after placing the tender and after the Department
accepting the tender, defaulted in executing the agreement. For
this default also huge losses occurred to the Government. This
also has to be realized from the petitioner. In respect of 1926
Teak Plantation Kannettupadom, he has not commenced any work
though executed the agreement. This being the actual facts, the
petitioner is not entitled to any payment or any amount as claimed
in the writ petition at present. The issuance of depot receipt does
not confer any legal right on the petitioner to get the said
amount.”
3. I have heard both sides in detail.
4. From the pleadings, it is evident that the liability to pay for
W.P.C. No. 7669 & 7682/08. -: 4 :-
the work done by the petitioner is seriously disputed by the
respondents. They have specifically contended that the petitioner has
committed breach of contract and therefore unless and until the
damages due to the respondents on account of the said breach of
contract are quantified, no payment can be made to the petitioner.
Essentially what the petitioner seeks is issue of depot receipts and
payment based on the same. In other words, the petitioner seeks
enforcement of the term of contract. The liability to comply with
such term of contract is disputed by the respondents. Both parties
allege breach of contract on the other side. Therefore, for considering
the issues involved the truth of these disputed facts has to be
ascertained on evidence. When the facts necessary for disposal of
these writ petitions, the ascertainment of which would require
evidence, are disputed, such questions of fact cannot be decided in a
writ petition. The petitioner’s remedy lies in filing a suit for the
reliefs prayed for, where both parties can adduce evidence in support
of their respective cases to prove the disputed questions of fact.
Therefore, without prejudice to that right, these writ petitions are
dismissed.
I make it clear that I have not accepted the contention of the
respondents that the petitioner has committed breach of contract.
S. Siri Jagan, Judge.
Tds/