IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 WP(C).No. 3054 of 2011(F) ------------------------------------- PETITIONER(S): ----------------------- K.T.MATHEW, S/O. THOMAS, KADAMBANADU HOUSE, P.O.KOTTATHARA, AGALI, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FORESTS, THIRUVANANTHAPURAM-695 001. 2. THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM-695 001. 3. THE DIVISIONAL FOREST OFFICER, NENMARA - 678 508, PALAKKAD DISTRICT. 4. THE DEPUTY TAHSILDAR, REVENUE REOVERY, TALUK OFFICE, P.O.MANNARKKAD, PIN - 678 582, PALAKKAD DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SRI.P. NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.3054 OF 2011(F) -------------------------------------------------- Dated this the 7th day of February, 2011 J U D G M E N T Heard the counsel for the petitioner and the learned Government Pleader who has obtained instructions in the matter. 2. In an auction that was held on 28.3.2001, petitioner was the successful bidder of 5330 Kg of pepper, 107 Kg. of Pepper(Polla) and 280KG. of pepper powder. His bid was for ` 5,01,584/-. Petitioner did not remit the bid amount. On the other hand he made requests for extension of time for remitting the amount. On two occasions extension was granted and on the last occasion, according to the learned Government Pleader, petitioner himself submitted letter dated 28.8.2001 requesting for extension of time stating that in the event of his not remitting the amount, auction can be held at his risk and cost and that accordingly time was extended till 30.9.2001. Payment was not made on that occasion also and in those circumstances, re- auction was held on 25.1.2002. 3. At that time OP.NO.18325/95 was pending consideration of this court and this court did not confirm the WPC.No. 3054/2011 :2 : auction. Finally a re- auction was held on 17.11.2004. In that auction, the highest bid was for ` 2,77,270/-. Under the terms of sale to the petitioner, petitioner was responsible for the loss suffered by the Government and therefore on 31.3.2009 notice was issued to the petitioner requiring him to remit the amount of loss suffered by the Government. The amount was not remitted. He was again issued notice on 23.5.2009 calling upon him to remit the amount and that also was not responded. It is therefore that revenue recovery proceedings are now initiated which is challenged in this writ Petition. 4. The contention raised by the counsel for the petitioner is that since the revenue recovery proceedings initiated are for realizing damages from the petitioner, the liability of which is disputed, unless the liability is adjudicated and the amount is quantified in an appropriate proceedings, recovery proceedings cannot be initiated. It is also contended that there was inordinate delay in conducting re-auction and that the commodity kept for re-auction was different, and therefore for the reduction of the bid amount received, the petitioner cannot be made liable. 5. As far as the case of the petitioner that damages cannot be realized from the petitioner, there cannot be any WPC.No. 3054/2011 :3 : quarrel with the proposition that ordinarily when liability for damages is disputed the same should be adjudicated and quantified. However, as rightly pointed out by the Government Pleader what is sought to be realized from the petitioner is only the difference in the price that was realized. As already seen, in the auction held on 28.3.2001 petitioner bid the commodity in question for an amount of ` 5,01,584/-. But in the re-auction that was held on 17.11.2004 the price received was only ` 2,77,271/-. It is the difference in the price which has been shown as the loss and it is this loss which is sought to be realized from the petitioner with interest thereon. In my view, this cannot be termed as a recovery of unquantified damages, calling for adjudication by a competent forum. 6. As far as the delay now pointed out by the learned Counsel for the petitioner, it can be seen that initially auction was held on 28.3.2001. Time for payment was extended till 30.9.2001 at the repeated requests of the petitioner. It was on his failure to pay the amount even on 30.9.2001, re-auction was held on 25.1.2002. That auction was not confirmed and therefore second re-auction was held on 17.11.2004. On the materials available I am not satisfied that there is any culpable delay WPC.No. 3054/2011 :4 : caused by the respondents. 7. In any case, this factual question cannot be adjudicated by this court in a proceedings under Article 226 of the Constitution of India. If the petitioner has a case that there was culpable delay on the part of the respondents, it is for the petitioner to establish the same in appropriate proceedings. It is clarified that if any such proceedings are resorted to, the conclusions in this judgment shall not be to the prejudice of the petitioner and the forum concerned shall adjudicate the issue untrammelled by the findings in this judgment. 8. Yet another contention raised by the petitioner is that the commodity brought for re-auction was not the same that was sold to him in the auction held in 2001. This factual contention also cannot be decided in a writ petition and therefore is left open to be agitated in appropriate proceedings. 9. Therefore the petitioner has not made out a case for interference. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/