2> .,/" iva THB HIGH COURT OF JUDICATURE AT BILASPUR C. G. _$'fe3- c' (yo / [NTHEMATTEROF: ihola Prasad Agrawal Sonoflate Shri HarfulmalAgrawal R\0 Nehru Park Road Siirajpur, Dist. Surgi-ijaC.G. Versus 2. State Of Chhatisgarh Through secretary Forest Secretriate Raipur, Chhatisgarh The Executive Director Chhatisgarh Rajaya Laugh Van Upaj (Vyapar Avaiii Vikas) Sahkari Sangh Maryadit J-10 Anupaxn Nagar Raipur. Chhatisgarh. ^ ..»:ss$> ^^" ...-^ •^y ^- 3. Conservator of forest, / Ex-Officio General Manager ofFederat^>n Sarguja Circle Ambikapur, Chhatisearh. Managing Director JilaVano upaj Sahkari Union Maiyadit Koria Baikunfhpur, Chhatisgarh. ^' WRIT PET1TION U^DER ARTICLE 226/227 OF THB C^NSTITUTION OF ,:ll i ^S^STit,. k£^ ^4; ^Wo. i.i» ";!!;.,-, ^.ti;'^i;t: L- HLGHCQURTOFCHHATTISGARH : BILASPUR Singie Bench: Hon'ble Shri IVIanindra WIohan Shrivastava, J. Writ Petition No.565 of 2003 Petitioner Respondents Bhola Prasad Agrawal Versus State of Chhattisgarh and others (Wrjt Petition under Article 226/227 of the Constitution of India) Present: - Shri B. D. Guru, counsel for the petitioner. Shri S. K. Mishra, Panel Lawyerforthe State/respondent No.1. Shri Shailendra Shukla, counsel for respondents No.2 to 4 ORAL ORDER (Passedon 13-04-2011) By this petition under Article 226/227 of the Constitution of India, the petitioner seeks to assail correctness, legality and propriety of order dated 15-09- 2002 (Annexure P-1), by which, agreement executedin favour of the petitioner, has been cancelled and the security amount of the petitioner has been forfeited by the respondent No.3. 2. The facts necessary for adjudication of controversy involved in this petition are in narrow encompass. As per prevailjng systerH of sale of Tendu leaves through the agency of Chhattisgarh Rajya Laghu Vapfopaj (Vyapar Evam Vikas) Sahakari Sangh Maryadit, Ambikapur, Chhattisgarh, tenders were invited for purchase of tendu leaves, in response to which, the petitioner submitted his tender. His tender in respect of Lot No.0871A was accepted. The petitioner was informed by the first respondent to be a successful bidder vide letter dated 24-08- 2001. Later on, an agreement was executed between the parties in terms, of which, the petitioner was required to make payment of purchase price of 'WTiH^ 2- Rs.5,58,710.63 in four installments starting from 16-10-2001, last installment payable on 01-03-2002. 3. The petitioner took delivery of tendu leaves and deposited first and second installment as per the terms and conditions of the agreement. However, before occasion could arise for lifting tendu leaves and making payment of 3rd and 4 installment, a writ petition was came to be filed before this Court, registered as Writ Petition No. 1718/2001, by the unsuccessful bidder, Smt. Vidya Devi Agrawal. In that writ petition, an interim order was passed on 27-08- 2001(Annexure P-3) wherein it was ordered that status quo shall be maintained bythepartiestill 08-10-2001: 4. In view of the interim order passed by the Court in the aforesaid writ petition, the petitioner could not be supplied the remaining lot oftendu leaves, for which, he had executed the agreement. Thereafter, several representations were made by the petitioner to the respondent authorities. These representations have been placed on record as Annexure P-4 to Annexure P-6. A letter was issued on 26-11-2001 by the office of the respondent No.3 stating that in view of the interim order passed by the Court, delivery of tendu leaves to the petitioner is not possible. Third installment was payable by the petitioner on 15-01-2002 and the fourth installment was payable on 01-03-2002. While the matter stood thus, the petitioner kept on making representation one after the another, but no delivery could be made to the petitioner, because of the interim order. The writ petition was however dismissed on 06-05-2002 with liberty to revive, if cause of action survives. After dismissal of the writ petition, the respondent authorities unilaterally decided to extend the date of the agreement up to 15-09-2002 and also altefed the date for payment of 3 and 4 installment. The petitioner was then required vide notice dated 09-06-2002 (Annexure P-13) to make payment of 3 and 4 installment on the extended dates and take delivery oftendu leaves as MifmnnMii'Mi •3— ^tKSSE) per rescheduling of the dates of payment. The petitioner, however, expressed his inability and requested that the amount of security be refunded as contract has been frustrated. Thereafter, several correspondences were made between the parties, followed by a legal notice. Finally, a notice was given to the petitioner on 08-08-2002 to take the delivery of tendu leaves under the agreement and make payment of 3rd and 4th installment on 15-06-2002 and 01-08-2002 respectively. The petitioner having not accepted that, it followed another notice dated 09-08- 2002. Finally, the impugned order was passed on 15-09-2002, by which, the agreement between the parties was cancelled and the security amount of Rs.1,60,074.81 wasforfeited. 5. Submission of learned counsel for the petitioner is that the action of the respondent in forfeiting the security amount deposited by the petitioner against performance of contract is not only illegal but patently arbitrary. It is contended that the petitioner could not be penalized by forfeiture of security amount, because non payment of the installments was occasioned due to refusal on the part of the respondent authorities to make delivery of lot of tendu leaves. The petitioner was always ready and willing to take delivery of tendu leaves but it was because of the interim order passed by this Court on 27-08-2001, the petitioner was not allowed to take delivery of tendu leaves as per the agreement and the obligation, under the agreement, of making payment of 3rd and 4 installment, could not be fastened upon the petitioner due to failure on the part of the respondent and also could not be made a basis to forfeit the security amount. It is next contented by learned counsel for the petitioner that action of the resppndent in unilaterally extending the period of agreement and the dates of payment of 3 and 4 installment is not at all binding on the petitioner. He submits that the agreement having been frustrated for whatever reasons, certainly not because of the fault ofthe petitioner, security amount as has been -., ^ 8iSI| 1 'sy -Z1 deposited by the petitioner, could not be forfeited. In support of his submission, learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the case of Mohammed Gazi vs. State of M.P. and others, (2000) 4 Supreme Court Cases 342. 6. On the other hand, learned counsel for respondents No.3 to 5 raised a preliminary objection with regard to maintainability of the writ .petition by submitting that the petitioner has alternative and efficacious remedy of filing a suit for recovery of the amount of security deposit, which has been forfeited under the impugned order. He submits that the claim of the petitioner arises out of a contractual dispute between the parties, and therefore, the petitioner is not entitled to invoke extraordinary jurisdiction of the Court under Article 226 of the Constitution of India. It is next contended by learned counsel for respondents No.2 to 4 that the respondents were not at fault, it was because of interim order passed by this Court, delivery of tendu leaves eould not take place. However, after the writ petition was finally dismissed and the interim order lost its efficacy, the respondentauthority extended the period of agreement and also rescheduled the dates for payment of 3rd and 4' installment vide letter dated 03-06-2002 (Annexure P-11). This was duly communicated to the petitioner, and therefore, the petitioner was bound to take delivery ofthe remaining lot oftendu leaves and to make payment of 3 and 4 installment on the rescheduled dates. 7. There is no dispute that the petitioner had paid 1 and 2 installment. According to the agreement, 3 installment was payable by the petitioner on 15-. Ot-2002 and the 4th installment was payable on 01-03-2002. On 27-08-2001, on a writ petition filed by one Smt. Vidya Devi Agrawal, status quo order was passed by this Court, where after, the respondent did not allow delivery of tendu leaves to the petitioner, to which, hewas entitled to lift under the agreement executed -G tS!» between the parties. In fact, a letter was issued by the respondent No.3 to the Managing Director of the Vanopaj Sangh informing that in view of the interim order passed by the Court, it is not possible to give delivery of tendu leaves to the petitioner. Under these circumstances, non payment of 3 and 4 installment by the petitioner, on the dates stipulated in the agreement, could not be made a basis to fasten any liability on the petitioner nor to forfeit the security amount lying with the respondent. The Supreme Court in the case of Mohammed Gazi (supra) dealt with an identical issue, wherein an interim order was passed and tendu leaves were not be allowed to be lifted, yet contractor was penalized and action was taken against him, and the security amount was forfeited. It was held:- 2. "Whether a person can be penalised for no fault of his merely by resorting to equity clause in favour of the respondent State particularly when such person is found to have not been benefited or the State deprived of the benefits on account of the stay order issued by the court is the question of law to be decided in this appeal. Another related question requiring determination is as to whether on account of the pendency of the writ petition filed by another party without impleading the affected person as a party in which the stay order granted by the court, such person can be directed to forfeit a part of the security amount deposited by him particularly when the court itself found that even the equities were equally balanced between the State and such person." 8. The aforesaid observation made by the Supreme Court are complete answer to the arguments of learned counsel for the respondent that the petitioner Was liable for payment of 3 and 4 installment after the interim order was vacated and the dates of payment of 3 and 4 installment were rescheduled. In fact, the agreement itself had been frustrated as tendu leaves could not be supplied to the petitioner as per the agreement, because of the interim order. Tuman' A^" 9. Ordinarily, disputes arising out of a contract are not entertained by this Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India, however, in the present case, action of the respondents No.2 to 4, is patently arbitrary and in violation ofArticte 14 of the Constitution of India and that the issue raised in this petition is squarely covered by the judgment of the Supreme Court in the aforesaid case, 1 am not inclined to throw the petition after seven years only on the ground of availability of alternative and efficacious remedy. 10. In the result, the petition is allowed. The impugned order dated 15-09- 2002 (Annexure P-1) to the extent it forfeits security amount of the petitioner is set aside. The petitioner will be entitled to refund of the security amount forthwith. No orders as to cost. Sd/- Manindra Mohan Shrivastava Judge y lliR^