IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 24317 of 2005(T) ---------------------------------------- PETITIONER(S): ------------------------- V.J. MATHEW, VENGACHUVATTIL, CHATHAMATTOM, KADAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.B.SAJEEV KUMAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE CHIEF CNSERVATOR OF FORESTS GOVT.OF KERALA, THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, KOTHAMANGALAM. 4. THE DEPUTY TAHASILDAR (R.R.), KOTHAMANGALAM. 5. THE VILLAGE OFFICER, KADAVOOR VILLAGE, ERNAKULAM DISTRICT. R1 TO R5 BY GOVERNMENT PLEADER SRI.V. MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24317/2005 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RE-AUCTION NOTICE DD. 29/05/06 ISSUED BY THE 3RD RESPONDENT. P2: COPY OF THE NOTICE NO.L1 6364/94 DTD. 15/05/97 ISSUED BY THE 3RD RESPONDENT. P3: COPY OF THE REPRESENTATION DTD. 14/10/97 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. P4: COPY OF THE NOTIFICATION NO.A3-660/97 DTD. 02/07/97 ISSUED BY THE 3RD RESPONDENT. P5: COPY OF THE NOTICE DTD. 19/11/97 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P6: COPY OF THE REPRESENTATION DTD. 18/12/97 SUBMITTED BEFORE THE 3RD RESPONDENT. P7: COPY OF THE REVENUE RECOVERY NOTICE DTD. 19/03/98 ISSUED BY THE 4TH RESPONDENT. P8: COPY OF THE JUDGMENT DTD. 25/11/04 PASSED BY THIS HON'BLE COURT IN O.P.8148/98. P9: COPY OF THE G.O.(RT) 425/05/F & WLD DTD. 30/07/05 PASSED BY THE GOVT. REJECTING THE REPRESENTATION OF THE PETITIONER. P10: COPY OF THE RE-AUCTION NOTIFICATION NO.A3/5527/97 DTD.17/04/98 ISSUED BY THE 3RD RESPONDENT. P11: COPY OF THE REPRESENTATION DTD. 11/05/98 SUBMITTED BY THE PETITIONER BEFORE THE GOVT. BY REGISTERED POST. Kss ..2/- ..2... WPC.NO.24317/2005 T RESPONDENT'S ANNEXURES: ANNEX.R2(A): COPIES OF GOVERNMENT ORDERS FOR CONDUCTING RE-AUCTION. ANNEX.R3(A): COPY OF SALE NOTIFICATION PUBLISHED IN GOVT.GAZETTE DTD. 14/11/1995. ANNEX.R3(B): COPY OF UNDELIVERED NOTICE VIDE REGISTERED A/D LETTER NO.263/94 DTD. 15/05/1996 OF THE RANGE OFFICER, MULLARINGAD. ANNEX.R3(C): COPY OF UNDELIVERED NOTICE VIDE REGISTERED A/D LETTER NO.L1.6364/94 DTD. 1/06/1996 ISSUED TO HIM BY THE 3RD RESPONDENT. ANNEX.R3(D): COPY OF THE ENVELOPE OF THE LETTER DTD. 1/06/1996 CONTAINING THE REMARKS OF THE POSTAL AUTHORITIES. /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 24317 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August, 2010 J U D G M E N T The petitioner participated in an auction for timber conducted by the 3rd respondent and his bid was accepted, consequent which he has signed an agreement. Petitioner committed default in paying the amounts due as per the agreement. Therefore the agreement was terminated and re-auction was conducted. By Ext.P2, the petitioner was directed to pay an amount of Rs.1,33,720/- towards damages for breach of contract committed by the petitioner. Petitioner filed Ext.P3 representation seeking exemption from payment of the said amount, on the ground that similarly placed other persons have been exempted from payment of damages. But Ext.P7 demand notice was issued under the Revenue Recovery Act, for recovery of that amount. Challenging the same, the petitioner filed O.P. W.P.(C)No. 24317 of 2005 -2- No.8148/1998, in which this court passed Ext.P8 judgment directing the Government to reconsider the matter. Accordingly the Government reconsidered the matter and by Ext.P9 order rejected the representation of the petitioner seeking exemption. Petitioner has filed this writ petition challenging Ext.P9 order seeking the following reliefs: “i) Issue a Writ of Certiorari or such other appropriate Writ or Order quashing Ext.P9 ii) Declare that the 1st respondent is not justified in granting exemption with respect to realization of the alleged loss on re-auction on a pick and choose basis, sparing the persons named in Ext.P11 representation discriminating the petitioner; iii) Declare that the loss of re-auction can be calculated only considering the difference between the amount quoted by the 2nd highest bidder (next behind the defaulted highest bidder) and the actual amount fetched on re-auction in view of the black and white difference between the actual loss and the probable loss of profit;” 2. Petitioner's contentions are in two parts. One is that, in Ext.P8 judgment the Government has been directed to consider the representation of the petitioner for exemption in the light of similar exemption granted to others, which has not been done by the Government. W.P.(C)No. 24317 of 2005 -3- Second is that, what has been demanded from the petitioner is not the actual loss which comes Rs.94,362/- which is the difference between the price quoted by the petitioner and the price fetched in the re-auction. According to the petitioner, petitioner is not liable to pay any other amount. 3. Statements have been filed by the 2nd & 3rd respondents justifying the action of the Government in demanding the entire amount. 4. I have considered the rival contentions in detail. 5. Petitioner has no case that he has not committed breach of contract. His only contention is that, in view of the exemption granted to similarly placed others, petitioner should also be given the very same benefit. Secondly he would submit that, he is only liable to pay only the difference in price, if at all any amount is payable and not any other amounts. Both the contentions do not find favour W.P.(C)No. 24317 of 2005 -4- with me. First of all, the very grant of exemption to any person from payment of damages actually suffered by the Government is unjustifiable in so far as by that action the Government is depriving the exchequer of money legally due to the State. Only in very exceptional circumstances can the Government, if at all, exempt persons from paying damages for breach of contract. If following the earlier exemption granted to other persons which itself may not be sustainable, the petitioner also is directed to be given the very same benefit, that would mean that exemption has to be perpetuated for ever and every person who commits breach of contract with the Government has to be exempted from payment of damages, which proposition cannot be accepted in law. Therefore I am of opinion that, even if others had been earlier given exemption legally or illegally, the petitioner cannot be given the very same benefit. Therefore, I do not find anything wrong with Ext.P9 order W.P.(C)No. 24317 of 2005 -5- rejecting the claim of the petitioner for exemption from payment of damages suffered by the Government on account of the breach of contract admittedly committed by the petitioner. Coming to the second contention, it is true that the difference in price between the original auction and the re-auction is Rs.94,362/-. But to the same, Forest Development Tax, Sales Tax, penal interest and expenses for advertising the re-auction have also been added. As far as Forest Development Tax and Sales Tax are concerned in so far as the Government has incurred the same in respect of the sale in favour of the petitioner, the petitioner cannot be relieved of the liability to pay the same. So also the advertisement charges for re-auction also is part of the damages payable by the petitioner. Therefore that also has to be paid. But taking a lenient view, I direct the respondents to exempt the petitioner from paying the penal interest shown in Ext.P2. Resultantly, the petitioner would W.P.(C)No. 24317 of 2005 -6- be liable to pay Rs.1,20,970/-. This amount shall be paid within one month from today, failing which the petitioner would be liable to pay the entire amount and interest on that amount at the rate of 9% from the date of Ext.P2, till payment. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/