High Court Kerala High Court

Sheriff Nazimudeen vs State Of Kerala on 4 November, 2010

Kerala High Court
Sheriff Nazimudeen vs State Of Kerala on 4 November, 2010
       

  

  

 
 
  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.
                  ------------------------------------------
                      W.A. No. 1262 of 2010
                  ------------------------------------------
               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

W.A.No.1262 of 2010

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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

W.A.No.1262 of 2010

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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

W.A.No.1262 of 2010

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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

W.A.No.1262 of 2010

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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

W.A.No.1262 of 2010

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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