IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WA.No. 1262 of 2010 ----------------------- AGAINST THE JUDGEMENT IN WPC.3583/2010 Dated 28/05/2010 .................... APPELLANT/PETITIONER: ---------------------------- SHERIFF NAZIMUDEEN ,S/O.SHERIEF TC.41/2608, "SHA MANZIL" MANAKKAD PO THIRUVANANTHAPURAM 695 019 BY ADV. SRI.VAKKOM N.VIJAYAN SRI.MATTAYIL R.S.NAIR SMT.V.RENJU SRI.P.ANIYAN RESPONDENTS/RESPONDENTS: ----------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF FOREST, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER SALES DIVISION, THIRUVANANTHAPURAM. 3. THE DEPOT OFFICER GOVERNMENT TIMBER DEPOT, ACHANKOVIL. BY SPECIAL GOVERNMENT PLEADER SRI.P.M.PAULOSE THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 1262 of 2010 ------------------------------------------ Dated this the 4th day of November, 2010 JUDGMENT Ramachandra Menon, J. The writ petitioner is the appellant. The writ petition was filed challenging Exts.P4 and P5, whereby the entire amount originally quoted by the appellant in respect of the 'tender' as well as the 'spot auction' was sought to be realised. The contention of the appellant/petitioner is that the 'tender' submitted by him was rejected because of some technical defects, though the 'spot auction' was confirmed in favour of the appellant subsequently. When the appellant was directed to satisfy the liability under the auction as well as the tender, the appellant effected some payment so as to avoid black-listing by the department as contended in paragraph 6 of the writ petition. Thereafter the appellant submitted Ext.P3 representation pointing out that the tender was originally rejected and it was later, that his tender was stated as accepted and the W.A.No.1262 of 2010 - 2 - intimation of confirmation was issued much later, as borne by Ext.P4 dated 08.10.2009;followed by Ext.P5 dated 20.01.2010 asking to clear the balance amount; lest adverse consequences should follow. The writ petitioner sought for setting aside Exts.P4 and P5 and also for disposal of Ext.P3 representation preferred before the second respondent. 2. A detailed statement was filed from the part of the second respondent before the learned Single Judge specifically contending in paragraph 5 as follows: “The contention of the petitioner that tenders submitted by the petitioner were rejected by the 2nd respondent due to defects, etc., are false and hence denied by the respondents. It is submitted that the 2nd respondent had confirmed on spot sale of 56 lots out of 101 lots bid by the petitioner on 27.8.2009. The grievance of the petitioner is only in respect of 56 lots confirmed on the spot. 3rd respondent had issued chalan to the petitioner on 2.11.2009 for the first month, and on 2.12.2009 for the second month and on 1.1.2010 for the third month respectively after expiry of grace period. It is submitted that on receipt of the chalans issued by the 3rd respondent the petitioner submitted a representation dt.3.11.2009 requesting to make payment of the sale price for the lots auctioned by the petitioner. True copy of the Representation dt.3.11.2009 submitted by the petitioner before the 3rd respondent is produced herewith and marked as Annexure W.A.No.1262 of 2010 - 3 - R2(b). Even after extension of time of three months by the Depot Officer after grace period for remittance as per rules, the petitioner had not remitted the balance amount. In the case of spot confirmation, by the 2nd respondent, time for remittance was over by 31.1.2010. In respect of lots confirmed by the Conservator of Forests, Southern Circle, Kollam, a time extendable beyond grace period was over by 14.2.2010. As per conditions of sale, the petitioner has thus become a defaulter. It is submitted that the petitioner has submitted another representation on 13.2.2010 to this respondent requesting three months' time to remit the balance sale consideration and to remove the timber auctioned by the petitioner. True copy of Representation dated Nil submitted by the petitioner before this respondent is produced herewith and marked as Annexure-R2(c). It is submitted that in the representations submitted by the petitioner he has no case that the tenders submitted by the petitioner were rejected by the 2nd respondent and he has admitted the confirmation of sale in his favour. The petitioner has stated in Annex-R2(b) representation that the petitioner could not make payment due to the economic crisis in the middle east. Therefore, it is evident from the above representations that petitioner has set up a different case before this Hon'ble Court for obtaining favourable orders by suppressing material facts.” 3. Subsequently two more documents were produced stating that the appellant had already sought for time to satisfy the entire liability as borne by Exts.R2(b) and (c). It was in the said circumstances that the appellant chose to produce Ext.P6 obtained W.A.No.1262 of 2010 - 4 - under the relevant provisions of the Right to Information Act, to substantiate the contention raised before the learned Single Judge that the tender was originally rejected and that by virtue of some endorsement in the proceedings, it was later shown as accepted at 4.30 P.M. (for the belated revelation that the tender submitted by the appellant was the highest). It was always the case of the appellant that the communication as to the confirmation of the tender in favour of the appellant, after rejecting the same in the evening on the date of auction, was never communicated to him. During the course of hearing it was stated from the part of the respondents that there was suppression of material facts by the petitioner, in so far as the factum of rejection of the tender (as the case put forward by the petitioner) was never pointed out in Exts.R2 (b) and (c), wherein the writ petitioner only sought for some more time to satisfy the balance demand. It was in the said circumstances that a finding in this regard was made by the learned Single Judge and the writ petition was dismissed with cost oft `25,000/-. 4. On going through the materials on record, it is seen W.A.No.1262 of 2010 - 5 - that the case as put forth by the appellant was very much stated in Ext.P3 which is dated 22.9.2009. It is also revealed from Ext.P4 and other records that the tender was confirmed only on a subsequent date as communicated to the appellant. It is further revealed that the appellant was given time to satisfy the various demands as to the amount that was to be realized pursuant to the tender as well as public auction. This Court finds that the factual particulars may have to be considered afresh so as to arrive at a correct conclusion as to the true state of affairs. However, learned counsel for the appellant submits that, in view of the subsequent turn of events, re-auction has been conducted by the respondents and the remaining timber has also been sold to somebody else. In the said circumstances learned counsel for the appellant prays only for a direction to delete the costs ordered by the learned Single, Judge pointing out that there is absolutely no question of any suppression of material facts on the part of the appellant. The factum of rejection of the tender initially, though was strongly resisted from the part of the respondents it has been brought to light W.A.No.1262 of 2010 - 6 - from Ext.P6 (obtained under the “Right to Information Act') that the Tender was originally rejected due to some defects; but was later shown as accepted at 4.30 p.m. The sequence of events was not correctly narrated from the part of the respondents as well, till they were confronted on the basis of Ext.P6. In the circumstances, we do not propose to go into the merits of the case any further, but for finding it fit and proper to delete the costs ordered by the learned Single Judge. It is ordered accordingly. The writ appeal is disposed of with the above modification in the judgment. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns