ORDER
B.J. Shethna, J.
1. As per the notification for auction of “Tendu Patta” for the year 1992, the petitioner gave offer of Rs. 9,18.999/- to the respondents. The tenders were opened on 5-2-92 and the petitioner also deposited earnest money of Rs. 93,000/- on 5-2-92 itself. The petitioner’s offer was highest. On a day earlier to it i.e. on 4-2-92, the petitioner gave undertaking (Annex. R/3). Relevant para of which is as under :–
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2. As per Clause 586 of the Forest Manual the Tendu tree should be pollarded an coppiced during the period from 15th February to 15th March. Though the bid of the petitioner was highest and the petitioner deposited earnest money of Rs. 93,000/- his tender was not accepted or rejected for a considerable time and the crucial time from 15th February to 15th March was passing away, therefore, the petitioner sent telegram and requested the respondents to issue an order of acceptance immediately i.e. within 5 days and also made it clear that If the order is not passed then he shall not be liable to accept the offer. However, in spite of telegram no action was taken by the authority, therefore, on 9-3-92 (Annex. 1) the petitioner addressed a letter to the authority stating that if the order of acceptance and confirmation of bid is not given to him then he shall be allowed to have cultural operation at his own cost. It is further stated that if this is also not possible then his bid may be cancelled and treated as deemed to have been withdrawn and the earnest money deposited by him be returned to him. Respondent No. 3 by his letter dated 9-3-92 (Annex. 2) informed the petitioner that since he has not been appointed as purchaser, no permission for cultural operation can be given.
3. Under the circumstances, by a letter dated 14-3-1992 (Annex. 3) the petitioner Informed the respondent No. 2 that he is withdrawing his offer made on 5-2-92 and the amount of earnest money of Rs. 93,000/- be refunded to him with 24% interest because crucial period from 15th February to 15th March was almost over. Instead of replying this letter the respondent No. 3 vide his letter dated 3-4-92 (Annex. 4) Informed the petitioner that his bid was accepted and he was asked to deposit 25% security amount of Rs. 2,29,750/-, out of which he had already deposited the amount of Rs. 93,000/- by way of earnest money, therefore, remaining amount of Rs.
1,36,750/- asked to be deposited within 15 days. This letter was received by the petitioner on 7-4-1992. The same was not at all replied by the petitioner, therefore, the respondent No. 3 issued notice dated 23-4-1992 (Annex. 5) stating that if the petitioner is not prepared to work then it will be reauctioned. The same was also not replied by the petitioner.
4. It appears that after withdrawing his offer the petitioner earlier filed Writ Petition No. 1601/92 before this Court for refund of earnest money of Rs. 93000/- with Interest from the respondents. The said writ petition was rejected by my learned brother Hon’ble V.G. Palshikar, J. on 5-2-1995 on the ground that the petitioner had an alternative remedy before the competent Civil Court for refund of his amount which he had deposited by way of earnest money. The same was challenged by the petitioner before the Division Bench being D. B. Civil Special Appeal No. 789/95 and the same was also dismissed on 8-8-96 (reported in (1996 (3) Raj LW 646) by the Division Bench of this Court on the ground of alternative remedy was available to the petitioner. It appears that after the learned single Judge dismissed the Writ Petition on 5-2-95, the respondent No. 3 issued notice dated 29-9-95 (Annex.6) calling upon the petitioner to pay a sum of Rs. 12,94,815/- towards damages which they suffered because of breach of contract by the petitioner. It is also stated in the said notice that in failure to pay the amount it will be recovered from the petitioner as land revenue under the Land Revenue Act. This has been challenged by the petitioner in this petition under Article 226 of the Constitution.
5. Mr. Joshi, learned counsel for the petitioner submitted that the impugned notice at Annex. 6 dated 29-9-95 issued by the Deputy Conservator of Forest — respondent No. 3 calling upon the petitioner to deposit Rs. 12,94,815/- towards damages falling which the said amount shall be recovered from him under the provision of Land Revenue Act is illegal and liable to be quashed and set aside because the petitioner had never taken possession. Mr. Joshi submitted that the petitioner did give an undertaking on 4-2-1992, but though his bid was highest and that he also deposited earnest money of Rs. 93000/- immediately on the next day i.e. on 5-2-92, his tender was
neither accepted nor rejected for a considerable time and the crucial time from 15th February to 15th March was passing away, therefore, first the petitioner sent telegram and requested the authority to issue an order of acceptance immediately within 5 days and also made it clear to the authorities that if the order is not passed then he shall not be liable to accept the offer. However, in spite of such telegram no action was taken by the authorities, therefore, on 9-3-92 the petitioner addressed a letter to the authority to the effect that if the order of acceptance and confirmation of bid is not given to him then at least he may be allowed to have cultural operation at his own cost and if it is not possible then his bid may be cancelled and treated as withdrawn and the earnest money of Rs. 93000/- deposited by him be returned to him. Mr. Joshi learned counsel for the petitioner further submitted that the respondent No. 3 by his letter dated 9-3-92 informed the petitioner that since he was not appointed as purchaser, no such permission for cultural operation can be granted. 6. Mr. Joshi, therefore, submitted that under the circumstances, on 14-3-1992 the petitioner had to withdraw his offer dated 5-2-92 when the crucial period from 15th February to 15th March was about to over on the next day i.e. 16-3-1992 and he also requested the authority to refund the amount of earnest money of Rs. 93000/-. In short, it was submitted by Mr. Joshi that when the contract between him and the respondent authorities frustrated then he approached this Court by way of Writ Petition No. 1601 / 92, which was dismissed by my learned brother Hon’ble V. G. Palshikar, J. on 5-9-95 on the ground that the petitioner had an alternative remedy for recovery of earnest money of Rs. 93000/- before the Civil Court. Against which the petitioner preferred D. B. Civil Special Appeal No. 989/95 which was also dismissed by the Division Bench of this Court on 8-8-96. He, therefore, submitted that in a similar way the respondent authority should have approached the Civil Court for recovery of amount of Rs. 12,94,815/- for liquidated damages. In support of his submission, Mr. Joshi has relied upon the judgment of my learned brother Hon’ble V. G. Palshikar, J. delivered in S.B. Civil Writ Petition No. 86/86 on 28-11-95 in which the petitioner of that case had challenged the similar notice to pay the balance of bid
money and in failure to pay the said amount he was informed by the authority that coercive recovery would be made under Section 229 of the Land Revenue Act, 1956 as a land revenue. The said notice was declared Illegal and quashed on the ground that such a notice under the Land Revenue Act was wholly unsustainable in law when the factual possession was not taken by the petitioner, therefore, the contract was frustrated and the remedy for such frustration of contract or breach of contract was an action for liquidated damages would be only in a Civil Court, but such recovery cannot be made under the provisions of Land Revenue Act.
7. However, learned counsel Shri Hemant Chaudhary for the respondents submitted that after having given the undertaking in his own hand writing on 4-2-92 (Annex. R/ 3 to the reply affidavit) it was not open to the petitioner to frustrate the contract on any ground. He. therefore, submitted that the impugned notice at Annex. 6 is legal and valid and the authority is empowered to proceed against the petitioner for recovery of amount of Rs. 12.94.815/- towards damages. He submitted that Hon’ble V. G. Palshikar,J. while allowing the WritPetltlon No. 86/86 on 28-11-95 and quashing such notice issued under the Land Revenue Act has not considered this aspect namely the undertaking and that point was never raised on behalf of the Govt. In that petition. He, therefore, submits that the judgment of the learned Single Judge of this Court has no application on facts of this case. He also submitted that havingfailed in his challenge to get back the earnest money of Rupees 93000/- from the Govt. it was not open to him to file this second petition and this second petition is barred by principle of constructive res judicata because earlier writ petition was already dismissed by the learned Single Judge as well as Division Bench of this Court in special appeal filed by the petitioner.
8. It is true that when my learned Brother Hon’ble V. G. Palshikar allowed Writ Petition No. 86/86 on 28-11-1995 such undertaking was not there, therefore. It was not considered at all. Be that as it may, in my opinion, whether there was an undertaking or not the law laid down by the learned Single Judge is that the notice for recovery of balance amount under the provision of Land Revenue Act is wholly unsustainable in law when the factual possession was not taken by the petitioner. If for that the contract is frustrated then the remedy for such frustration of contract or breach of contract by the Govt. or the authority was before the Civil Court for claiming liquidated damages and not under the provisions of Land Revenue Act.
9. At the cost of repetition, I may state that the bid of the petitioner was highest and he also deposited earnest money of Rs. 93000/- on 5-2-1992. There is a clear provision under Clause 586 of the Forest Manual that Tendu trees should be pollarded and coppiced during the period 15th February to 15th March. Though the bid of the petitioner was highest, his tender was not accepted or rejected for a considerable time and when the crucial period from 15th February to, 15th March was passing away fast, therefore, firstly the petitioner sent telegram to the authority and requested it to Issue an order of acceptance immediately and made it clear that if such order is not passed then he shall not be liable to accept the offer. However, the authority did not act on such telegram, therefore, on 9-3-92 the petitioner wrote a letter to the authority to the effect that if the order of acceptance and confirmation of bid cannot be given to him then atleast he should be allowed to have cultural operation at his own cost, and if that is also not possible then his bid may be cancelled and treated as deemed to have been withdrawn and the earnest money be refunded to him. However, the respondent No. 3 only informed the petitioner that since he has not been appointed as purchaser so far, therefore, no such permission for cultural operation can be granted, therefore, at last by his letter dated 14-3-1992 the petitioner informed the respondent No. 2 that now he is withdrawing his offer made on 5-2-92 and also prayed to refund the earnest money of Rs. 93000/- with 24% interest because the crucial period from 15th February to 15th March was almost over. Instead of replying that letter the respondent No. 2 informed the petitioner by a letter dated 3-4-1992 that his bid was accepted and he was asked to deposit 25% security amount of Rupees 2,29,750/- out of which he has already deposited Rs. 93000/- by way of earnest money, therefore, remaining amount of Rs. 1,36,750/- was asked to be deposited by the petitioner within 15 days. When the petitioner had already withdrawn his offer made on 5-2-1992 before acceptance or another person as purchaser then in my opinion if at all there is liquidated damages to the respondent authorities then only course left
open to the authorities was to approach the Civil Court and not under the Land Revenue
Act.
10. I have already set out the condition No. 6 of the undertaking of the petitioner, wherein, the petitioner has stated that he will abide by the terms and conditions of the tender till It is accepted or rejected by the competent authority or till the appointment of another person as purchaser. As stated earlier, before withdrawing his offer by letter dated 14-3-1992 the petitioner requested the respondent authorities to issue an order of acceptance immediately and, thereafter, requested the authorities to atleast allow him to have cultural operation at his own cost till the acceptance and confirmation of his offer, but the same was specifically refused by the respondent No. 3 by letter dated 9-3-1992 (Annex.2) on the ground that he was not yet appointed as a purchaser, therefore, such permission for cultural operation cannot be granted. Thus, the undertaking of the petitioner at Annex.R/3 is also not binding to the petitioner. In any case, if the authority feels that because of the petitioner they have suffered damages to the tune of Rs. 12,94,815/- then as held by my learned brother Hon’ble V. G. Palshikar, J. In writ petition No. 86/86 the authority should approach the competent civil Court and not under the provisions of Land Revenue Act.
11. In view of the above discussion, this petition is allowed. The Impugned notice at Annex.6 dated 29-9-1995 is hereby quashed and set aside. The respondent authority can act in accordance with law against the petitioner by approaching the competent civil Court by way of suit provided it is within the period of limitation.
12. Before parting, I must state that Mr. Hemant Chaudhary submitted that authority could not accept and confirm the bid of the petitioner because of the stay granted by this Court in a writ petition No. 359/92 filed by one Dilip Singh, which was dismissed and stay was vacated only on 17-3-1992 and, thereafter, immediately on 31-3-1992 the acceptance was granted by the Chief Conservator of Forest. Rajasthan, Jaipur and accordingly, the Deputy Conservator of Forest accepted the offer of the petitioner on 3-4-1992 which was received by the petitioner on 7-4-1992. He, therefore, submitted that authority was not at fault in not accepting the offer of the petitioner Immediately after the bid of the petitioner on 5-2-1992, therefore, the authority may not be made to suffer for no fault of it. It may be that there was a stay against the authority in a
petition filed by one Dilip Singh. At the same time it cannot also be said that the petitioner was at fault in withdrawing his offer.
13. It is also true that earlier writ petition of the petitioner was dismissed by this Court on the ground that the petitioner had better alternative remedy before civil Court for recovery of his earnest money, but there is no question of constructive resjudicata applying in this matter because in this petition the prayer is altogether different. The subsequent notice dated 29-9-1995 (Annex.6) demanding a sum of Rs.12,94,815/- is challenged in this petition and in failure to pay the same, the same shall be recovered by way of land revenue under the Land Revenue Act.
14. Accordingly, this petition is allowed, the impugned notice at Annex-6 is quashed and set aside.
