IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 WP(C).No. 7669 of 2008(K) ----------------------------------- PETITIONER(S): ------------------------- K.C.MOHAMMED IQBAL, 'KAPPACHALIL HOUSE,' MAMPAD COLLEGE P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. MR.R.RAJESH KORMATH RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, FOREST DIVISION, CHALAKKUDY, ERNAKULAM DISTRICT. 3. THE DEPOT OFFICER, CHETTIKULAM DEPOT, THRISSUR DISTRICT. 4. THE DEPOT OFFICER, MUDIKKAL DEPOT, ERNAKULAM DISTRICT. 5. THE DEPOT OFFICER, VARAPPUZHA DEPOT, ERNAKULAM DISTRICT. 6. THE DEPOT OFFICER, VEETTUR DEPOT, ERNAKULAM DISTRICT. 7. THE DEPOT OFFICER, CHALAKKUDY DEPOT, THRISSUR DISTRICT. 8. THE DEPOT OFFICER, CHALIYAM DEPOT, KOZHIKODE DISTRICT. BY GOVT. PLEADER MR.P.M.PAULOSE (FOREST) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2009, ALONG WITH WPC NO. 7682 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.7669/2008 APPENDIX P1:- COPY OF THE AGREEMENT NO.2/07 DT. 22.1.07 ENTERED INTO BETWEEN THE PETITIONER AND THE IST RESPONDENT. P2:- COPY OF THE STATEMENT FO ACCOUNTS DT. 8.2.08 FOR THE PERIOD 1.1.08 TO 31.1.08 ISSUED BY THE MANAGER, UNION BANK OF INDIA, NILAMBUR. TRUE COPY P.S.TO JUDGE TSS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 7669 & 7682 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= 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 four W.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/