IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 OP.No. 29348 of 2002(R) ---------------------------------- PETITIONER(S): --------------------- M.S. JOSE, AGED 41, S/O.LATE MATHAI SCARIA, MANNAPPUZHA HOUSE, MYLAPRA VILLAGE, PATHANAMTHITTA. BY ADV. MR.V.PHILIP MATHEW RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, PATHANAMTHITTA. 3. THE DIVISIONAL FOREST OFFICER, KONNI. 4. THE THASILDAR, (R.R), KOZHENCHERRY TALUK PATHANAMTHITTA. 5. THE VILLAGE OFFICER, MYLAPRA. *ADDL. R6 IMPLEADED ADDL. R6: DIRECTOR, VIGILANCE, TRIVANDRUM. * IMPLEADED AS ADDL. 6TH RESPONDENT, VIDE ORDER DATED 29/11/2007 IN OP. R1 TO R6 BY GOVERNMENT PLEADER (FOREST) MR.P.M. POULOSE. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 29348/2002-R ORDER ON I.A. NO.160/2004 IN O.P. NO. 29348/2002 CLOSED 30/09/2009 SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE DATED 18/11/1992 ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF THE LEGAL NOTICE DATED 22/12/92 ISSUED TO RESPONDENTS 2 AND 3. EXT.P3: COPY OF THE NOTICE DATED 08/02/01 ISSUED BY THE 4TH RESPONDENT. EXT.P4: COPY OF THE PLAINT IN O.S. NO.45/2001. EXT.P5: COPY OF THE NOTICE DATED 20/09/2002 ISSUED BY THE 4TH RESPONDENT. EXT.P6: COPY OF THE REPLY DATED 25/09/2002 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P7: COPY OF THE RELEVANT PORTION OF THE GAZETTE NOTIFICATION DATED 16/12/1986. EXT.P8: COPY OF THE TRANSFER CERTIFICATE ISSUED FROM CATHOLICATE COLLEGE, PATHANAMTHITTA DATED 16/05/1986. RESPONDENT'S EXHIBITS & ANNEXURES: ANNEXURE-I: COPY OF THE VIGILANCE ENQUIRY REPORT NO.VE.2/08/PTA DATED 15/09/2008 OF THE DY. SUPERINTENDENT OF POLICE, VACB, PATHANAMTHITTA. ANNEXURE-II: COPY OF THE FORWARDING ENDORSEMENT NO.VE2/2008/PTA DATED 22/09/2008 OF THE SUPERINTENDENT OF POLICE, SOUTHERN RANGE, THIRUVANANTHAPURAM. ANNEXURE-III: COPY OF THE FORWARDING ENDORSEMENT NO.E3(VE 02/2008/PTA) 4437/2008 DATED 20/10/2008 OF DIRECTOR, VIGILANCE & ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM. ANNEXURE R1(a): COPY OF THE LETTER NO.E3(VE 2/08/PTA) 4437/08 DATED 25/07/2008. (P.T.O.) O.P. NO. 29348/2002-R EXT.R3(a): COPY OF THE EMD REGISTER DATED 20/07/1990. EXT.R3(b): COPY OF THE BIDDER WAR ABSTRACT DATED 20/07/1990. EXT.R3(c): COPY OF THE GOVERNMENT ORDER G.O.(RT)NO.231/94/F&WLD DATED 13/05/1994. EXT.R3(d): COPY OF THE SALE NOTIFICATION NO.KNC2-5841/90 DATED 02/03/1991. EXT.R3(e): COPY OF THE STATEMENT SHOWING COMPUTATION OF LOSS CAUSED IN THE RE-AUCTION. EXT.R3(f): COPY OF THE EXTRACT OF THE LAR PART-II A PARA-III (b). EXT.R3(g): COPY OF THE EXTRACT OF ADJUSTMENT BOOK ITEM NO.4. EXT.R3(h): COPY OF THE INVOICE ACCEPTED AND COUNTERSIGNED BY THE TAHSILDAR, KOZHENCHERY DATED 07/08/1990. EXT.R3(i): COPY OF THE EMD REGISTER. EXT.R3(j): COPY OF THE JUDGMENT OF THE SUB COURT, PATHANAMTHITTA IN OS NO.45/2001 DATED 05/08/2003. //TRUE COPY// P.A. TO JUDGE rs. 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 stated O.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 conduct O.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 in O.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