IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 OP.No. 27387 of 1999(I) -------------------------------- PETITIONER: ----------------- T.P. ALEXANDER, THEVARIMANAKKU HOUSE, KURUVAMOOZHY P.O., ERUMELI, KOTTAYAM DIST. NOW RESIDING AT THEVARIMANAKKU HOUSE, PACHALAM, KOCHI-12. BY ADV. SRI.K.S.ROCKEY RESPONDENTS: --------------------- 1. DIVISIONAL FOREST OFFICER, KOTTAYAM. 2. FOREST RANGE OFFICER, ERUMELI. BY GOVERNMENT PLEADER SMT. N.SUDHADEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 46391/1999 IN OP NO. 27387/1999 I. DISMISSED 23/01/2008. SD/- K.M.JOSEPH, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE REPRESENTATION DT. 16/07/98. EXT.P2. COPY OF THE PROCEEDINGS OF THE R1 DT. 14/08/98. EXT.P3. COPY OF THE OBJECTION FILED BY THE PETITIONER DT. 25/09/98. EXT.P4. COPY OF THE JUDGMENT DT. 09/10/98 IN OP NO. 19393/98. EXT.P5. COPY OF THE LETTER T. 20/10/98. EXT.P6. COPY OF THE NOTICE DT. 26/10/98. EXT.P7. COPY OF THE JUDGMENT DT. 17/06/99 IN OP NO. 25773/98. EXT.P8. COPY OF THE ORDER DT. 29/09/99. EXT.P9. COPY OF THE EXTRACT PUBLISHED IN THE KERALA GAZETTEE BY THE KERALA FOREST DEPARTMENT. RESPONDENT'S EXHIBITS EXT.R1A. COPY OF THE GAZETTEE NOTIFICATION NO. 51 DATED 30/12/97 BY THE DFO, KOTTAYAM. True copy tga K. M. JOSEPH, J. ------------------------------------ O.P. NO. 27387 OF 1999 I ------------------------------------- Dated this the 23rd January, 2008 JUDGMENT Petitioner challenges Ext.P8 and seeks a declaration that he has not participated in the auction conducted on 14.7.1998. Briefly put, the case of the petitioner is as follows: Petitioner is residing at Ernakulam. He went to Erumeli on 14.7.1998 to see the Forest Range Officer and enquire and purchase timber for construction of his house. It is stated that the confiscated teak items were scheduled for auction. Petitioner was advised by the second respondent that he has to produce a certificate from the Village Officer to prove his address and signature. He was not in possession of such a certificate. Hence the second respondent did not allow the petitioner to participate in the auction and did not receive the Earnest Money Deposit as per Clause 2A of the Sale Conditions. Though the petitioner was not allowed to participate in the auction, the second respondent convinced the petitioner that he OP NO.27387/99 I 2 could manage to get the timber through his agents. Petitioner agreed to purchase the timber from the agents of the second respondent. When he verified the teak logs at Murinjapuzha Forest Sub Station, he found that the timber agreed by the second respondent and auctioned at the Range Office on 14.7.1998 were not to the expectation of the petitioner. Hence he refused to purchase the teak items from the agent of the second respondent. Proceedings were taken against him. Petitioner approached this Court and obtained Ext.P4 Judgment by which this Court directed consideration of his representation he had filed before the first respondent and it was ordered that till orders are passed, there shall not be any re-auction. Petitioner preferred Ext.P5 to which he received Ext.P6 notice dated 29.10.1998 calling upon him to pay an amount of Rs.23,185/= which is assessed as the loss and on the basis apparently of a re-sale conducted of the timber. Thereafter, petitioner approached this Court and obtained Ext.P7 Judgment by which Ext.P6 was quashed and the matter was directed to be OP NO.27387/99 I 3 considered by the first respondent. All further proceedings pursuant to Ext.P6 were kept in abeyance. Ext.P8 is the consequential order passed by the first respondent by which the contentions of the petitioner were rejected and it was found that the petitioner had participated in the auction after remitting Rs.500/=and bid teak sawn materials for an amount of Rs.69,367/=. Failure to pay 1/3rd of the amount resulted in forfeiture and the loss was ordered to be recovered. The action was found justified. Ext.P9 is the Notification. 2. A Counter Affidavit is filed by the second respondent for and on behalf of the first respondent. Therein, it is, inter alia, stated that the Range Officer conducted thondy auction sale on 14.7.1998. Ext.R1(a) is the Notification. It is stated that production of nativity certificate/identity card is required only in the case of bidders not known to the Officials who conducted the auction. Petitioner had participated in earlier auction in Erumely Range and was known to the officials. The petitioner being a trade union leader had occasion to come to the Range OP NO.27387/99 I 4 Office and was known to the Range Officer. Therefore, production of Nativity Certificate/Identity Card was not insisted upon. It is also stated that the petitioner had participated in the auction on 14.7.1998 by remitting Rs.500/= as EMD and put his signature in the Auction Register on 14.7.1998 and the signature in the Register tallies. 3. I heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. Learned counsel for the petitioner submits that this is a case where the petitioner had obtained Ext.P4 Judgment wherein there was a direction not to conduct re-auction till the disposal of the representation. Ext. P6 followed. Again, Ext.P6 was set aside by this Court. He submits that re-auction was conducted. He would further contend that the petitioner had not deposited Rs.2,000/= and he could not have been allowed to participate in the auction. Likewise, he contends that there was no Certificate produced. 5. Learned Government Pleader justified the impugned OP NO.27387/99 I 5 order. 6. The first question to be considered is whether the petitioner could have been allowed to participate in the auction. The auction sale was in respect of thondy articles. Going either by Ext.P2 or Ext.R1(a), what was put to sale is thondy articles. No doubt, they were teak items. It is pointed out that what was bid in the auction were inferior quality timber. Therefore, the articles were bid in an auction sale by remitting Rs.500/= as EMD. This goes a long way to show that the petitioner has in fact participated in the auction. Admittedly, he deposited Rs.500/= and the argument which he addressed earlier was that he did not participate and he could have been participated only upon payment of Rs.2,000/=. For thondy articles, the deposit of Rs.500/= sufficed. As far as the purpose of identification by way of certificate is concerned, first of all, going by Ext.P7, this question was apparently not pressed by the petitioner, namely whether he could have been allowed to participate in the auction on the said ground. There is no reference to this aspect, OP NO.27387/99 I 6 apparently because the of the aforesaid reason. In the Counter Affidavit, it is stated that the purpose of the Certificate is required only in the case of bidders not known to the Officials. Petitioner is stated to have been known and it was, therefore, not insisted upon. At any rate, petitioner did not raise this as a contention in the earlier round and the Officer did not consider the question. Regarding the signature, it is to be noted that it is essentially a question of fact whether the petitioner has signed in the Register or not. Going by the unrebutted allegations in the Counter Affidavit, there was a signature of the petitioner in the earlier auction. Therefore, it cannot be said that the said contention is valid. Therefore, it can be taken that the petitioner had participated in the auction and there was breach on his part which resulted in the conduct of re-auction. Regarding the contention that Ext.P4 and Ext.P7 are violated, it is to be noted that it was ordered vide Ext.P4 that the re-auction should not be held till the disposal of the representation directed in the Judgment dated 9.10.1998, it is stated that the re-auction took OP NO.27387/99 I 7 place on 15.9.1998. Further, if there was failure, the petitioner could have brought it to the notice of this Court at the stage when Ext.P7 Judgment was delivered. In Ext.P7 Judgment, Ext.P6 was kept in abeyance till the matter is considered by the DFO. It is to be noted that a perusal of Ext.P6 would make it very clear that re-auction had already taken place and the loss was assessed and it was the recovery of the loss vide Ext.P6 which was directed to be kept in abeyance vide Ext.P7. Having regard to all facts, I am of the view that there is no merit in the contentions of the petitioner. In such circumstances, the Original Petition fails and it is dismissed. K. M. JOSEPH, JUDGE kbk. K. M. JOSEPH, J. O.P NO. 27387 OF 1999 I JUDGMENT 23rd January, 2008.