N.Mohandas v. State Of Kerala
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 7TH DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 WP(C) NO. 7255 OF 2022 PETITIONER: N.MOHANDAS AGED 68 YEARS S/O. SANKARA PANICKER, PROPRIETOR, VIVEES TIMBERS , NILAMBUR, RESIDING AT VASUDHA, LIC ROAD, NILAMBUR, MALAPPURAM DISTRICT 679 329 BY ADVS. K.C.ELDHO S.BIJILAL MALLENATHAN.M. RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT DEPARTMENT OF FOREST AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE CHIEF CONSERVATOR OF FOREST OFFICE OF THE CHIEF CONSERVATOR OF FOREST, THIRUVANANTHAPURAM 695 001 3 THE DIVISIONAL FOREST OFFICER TIMBER SALES DIVISION, PALAKKAD 678 582 SRI.T.P SAJAN SPL.GP (FOREST) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 7255 OF 2022 2 JUDGMENT Dated this the 7th day of March, 2022 The petitioner, who has participated in a Timber Auction conducted by the 3rd respondent, seeks to set aside Exts.P4 and P5 and to direct the respondents to provide the petitioner three months period to pay the balance amount due on the basis of Ext.P1 and to complete the work awarded by removing timber items awarded to the petitioner pursuant to Ext.P1. 2. The petitioner states that in response to a Timber Auction conducted by the 3rd respondent, the petitioner was awarded five lots of teak timber items. The amount payable to the Government including taxes and GST was `15,73,284/-. Out of the said amount, the petitioner remitted `10,18,295/-. An amount of `5,54,989/- is still due to the Government.
The petitioner after remitting `10,18,295/-, removed three lots of teak timber items. The petitioner had to remove remaining lots on or before 10.06.2021. However, due to the
WP(C) NO. 7255 OF 2022 3 2nd wave of Covid-19 pandemic, the petitioner could not remit the balance amount. The petitioner would state that workers were not available for removal of teak timber items.
The petitioner therefore submitted Ext.P2 representation dated 28.06.2021 to the 2nd respondent-Chief Conservator of Forests and Ext.P3 representation dated 08.12.2021 to the 1st respondent seeking enlargement of time to make balance payment. The petitioner was awaiting positive response to Exts.P2 and P3. 5. Surprisingly, the 3rd respondent-Divisional Forest Officer passed Ext.P4 order dated 07.02.2022 imposing a penalty on the petitioner for violating the contract conditions. By Ext.P5, re-auction was ordered in respect of the balance two lots of teak wood timbers. The petitioner is before this Court aggrieved by Exts.P4 and P5. 6. The petitioner submits that the petitioner had bona fide participated in the auction and remitted an amount of `10,18,295/- out of the total `15,73,284/-. The petitioner has
WP(C) NO. 7255 OF 2022 4 removed three lots of teak timber also. He could not remit the balance amount and remove the timber solely due to Covid-19 pandemic and the situation prevailing pursuant thereto. The petitioner had submitted Exts.P2 and P3 representations seeking enlargement of time.
The 3rd respondent, however, passed Ext.P4 order imposing a penalty on the petitioner without any notice and without giving an opportunity of hearing to the petitioner. Though the matter falls within the realm of the Contract Laws, the petitioner ought to have been given an opportunity of hearing, before passing Ext.P4 order imposing penalty on the petitioner, contended the learned counsel for the petitioner.
The learned Special Government Pleader (Forests) entered appearance and contested the writ petition. The Government Pleader submitted that the petitioner ought to have paid the balance amount within the stipulated date. The Divisional Forest Officer can enlarge the time for lifting the timber to a maximum period of 90 days only and that too on
WP(C) NO. 7255 OF 2022 5 payment of fine. The petitioner did not approach the respondents making an application for grant of further time. As the petitioner did not approach the 3rd respondent, the respondents have no other go than to pass Ext.P4 order, imposing penalty. In view of the larger public interest, as the teak wood timber lots are lying there in open, the respondents have decided to re-auction the same. Accordingly, Ext.P5 was issued.
The Government Pleader submitted that since the petitioner failed to make the payment and lift the timber within the stipulated time, the petitioner has no right to challenge Exts.P4 and P5. The petitioner did not approach in time the 3rd respondent for enlargement of time on payment of fine. After sending Exts.P2 and P3 representations, the petitioner was sitting idle. In the circumstances, the petitioner is bound by the terms of the contract and should accept Ext.P4 penalty.
I have heard the learned counsel for the petitioner and the Special Government Pleader (Forests) representing
WP(C) NO. 7255 OF 2022 6 the respondents.
The petitioner had participated in the bid and being successful, had remitted an amount of `10,18,295/- with the respondents. The petitioner had lifted three out of the five lots of teak wood timber within time. According to the petitioner, due to Covid-19 pandemic 2nd wave, he could not lift the remaining two lots as workmen were not available. The petitioner submitted Exts.P2 and P3 representations before the 2nd and 1st respondents respectively. The petitioner was bona fide awaiting a reply and a favourable response. It is all of a sudden that Ext.P4 penalty was imposed on the petitioner.
Taking into consideration the fact that after awarding the work, the petitioner had remitted `10,18,295/- and the petitioner was also permitted to lift three lots of teak wood timber, this Court is of the view that the 1st respondent shall consider Ext.P3 representation submitted by the petitioner on conditions. This is especially so as to avoid further re-auction at the risk and cost of the petitioner.
WP(C) NO. 7255 OF 2022 7
In the circumstances, the writ petition is disposed of with the following directions:- 1) The petitioner shall remit the balance amount due as per tender notification within a period of ten days. 2) If the petitioner makes such payment, the 1st respondent shall consider Ext.P3 representation, taking into consideration the covid-19 pandemic situation prevailed in the State and pass appropriate orders thereon, on such terms and conditions, within a further period of one month. 3) Till the 1st respondent passes an order on Ext.P3 representation as directed above, the re-auction of Serial Nos.1 and 2 (32/21 and 35/21) of Ext.P5 shall stand deferred. N.NAGARESH JUDGE hmh
WP(C) NO. 7255 OF 2022 8 APPENDIX OF WP(C) 7255/2022 PETITIONER EXHIBITS Exhibit P1 AOF THE ACKNOWLEDGEMENT RECEIPT ACCEPTING THE TENDER AND RECEIVING THE SECURITY DEPOSIT BY THE 3RD RESPONDENT Exhibit P2 AOF THE REPRESENTATION DATED 28-06-2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P3 AOF THE REPRESENTATION DATED 8-12-2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P4 AOF THE ORDER DATED 7-2-2022 Exhibit P5 AOF THE E-AUCTION NOTICE PUBLISHED AT THE INSTANCE OF THE 3RD RESPONDENT RESPONDENT’S EXHIBITS NIL
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.