IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 OP.No. 34749 of 2000(J) ----------------------- PETITIONERS: ------------ 1. JOJI M. GEORGE, MYLADIYIL, PLACHIKARA P.O., BHEEMANODY, PARAPPA (VIA) 2. SOBICHAN THOMAS, ANIKKATTUVAYALIL, EDATHODU, PARAPPA P.O., VIA. KASARAGOD. BY ADV. SRI.SUBHASH CYRIAC RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIVISIONAL FOREST OFFICER, NILAMBUR, NORTH DIVISION. 3. THE RANGE OFFICER, EDAVANNA RANGE. 4. THE TAHSILDAR, HOSDURG, KASARAGODE. BY GOVERNMENT PLEADER SMT. SMITHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 COPY OF NOTICE DATED 4.12.1998 ISSUED FROSM THE 2ND RESPSONDENT. EXT.P2 COPY OF AGREEMENT DATED 8.4.99 EXECUTED BY THE FIRST PETITIONER AND 2ND RESPONDENT WITH LETTER DATED -4-99 EXT.P3 COPY OF AGREEMENT EXECUTED BY THE 2ND PETITIONER AND 2ND RESPONDENT WITH LETTER DATED 8.4.99 EXT.P4 COPY OF LICENCE ISSUED TO THE FIRST PETITIONER BY THE 2ND RESPONDENT. EXT.P5 COPY OF LICENCE ISSUED TO THE 2ND PETITIONER BY THE 2ND RESPONDENT. EXT.P6 COPY OF RELEVANT PORTION OF THE CHART ISSUED TO THE FIRST PETITIONER. EXT.P7 COPY OF RECEIPT DSATED 13.1.99 FOR RS. 92,000/- EXT.P8 COPY OF RECEIPT DATED 31.3.1999 FOR RS. 64057/- EXT.P9 COPY OF RECEIPT DATED 11.2.1999 FOR RS. 68,000/- EXT.P10 COPY OF RECEIPT DATED 31.3.99 FOR RS. 47065/- EXT.P11 COPY OF PHOTOGRAPHS TAKEN AT THE TIME OF INSPECTION. EXT.P12 COPY OF REPRESENTATION DATED 29.3.1999 FROM THE PETITIONERS AND OTHERS. EXT.P13 COPY OF REPORT DATEDE 30.6.1999 FROM M.L. THOMAS, ASST. CONSERVATOR OF FORESTS TO THE 2ND RESPONDENT. EXT.P;14 COPY OF THE STATEMENT OF ACCOUNT FOR THE PERIOD FROM 1.3.99 TO 30.5.99 EXT.P15 COPY OF NOTICE DATED 8.11.2000 ISSUED FROM THE 4TH RESPONDENT TO THE FIRST PETITIONER. EXT.P16 COPY OF NOTICE DATED 9.11.2000 ISSUED FROM DO.DO. EXT.P17 COPY OF SNOTICE DATED 8.11.2000 ISSUED FROM THE FOURTH RESPONDENT TO THE 2ND PETITIONER. EXT.P18 COPY OF DO.DO. 2ND RESPONDENT'S EXHIBITS: EXT.R2(a) TRUE COPY OF GOVT. LETTER NO. 5197/B2/99/FOREST DSATED 30.3.1999 EXT.R2(b) TRUE COPY OF AGREEMENT EXECUTED ON 8.4.1999 TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 34749 OF 2000 -------------------------------------------- Dated this the 15th day of February, 2008 JUDGMENT Petitioners are challenging recovery proceedings for recovery of balance amount payable by the petitioners under the agreement executed by them for purchase of right to take usufructus from cashew plantation managed by the forest department. I heard counsel appearing for the petitioners and Government Pleader. It is clearly stated in the counter affidavit that the petitioners participated in public auction and purchased the right to take usufructus from cashew plantation of specified areas in Nilambur area. Even though one-third was remitted after auction was confirmed in favour of the petitioners, they filed a petition before the Government stating that there was symptom of disease in the crop. Government, in violation of the tender conditions, allowed the petitioners to executed an agreement on payment of 50% of the balance sale consideration. However, later, it was found that the petitioners' claim of disease of the crop did not stand substantiated. It appears that the petitioners themselves appointed 2 some expert to give opinion about the crop. Further it is stated that even though crop was retained by the forest department, petitioners removed the same without their permission. In a similar case this Court ordered enquiry against the forest officials for unauthorised appointment of expert contrary to tender conditions. 2. Petitioners have no case that the purchase of right to take usufructus was not at their risk and cost. It is for them to protect the crop is self-evident from the tender conditions. After auction is confirmed and agreement executed on payment, petitioners are given freedom to enter into plantation, protect the crop and collect the same on maturity. Petitioners have no case that tender conditions provide for any rebate or reduction in the consideration offered and agreed upon by the department on account of disease of crop or crop realisation below the expectation of the bidders. Therefore the case put forward by the petitioners about the disease of the crop even if it existed is not tenable as the same is against the tender conditions. O.P. is devoid of any bona fides and merit and is therefore dismissed. However, petitioners are granted three equal monthly instalments to clear the balance arrears 3 with six per cent interest, first of which will be paid on or before 30th of March and the balance on or before 30th of two succeeding months. However, if default is committed by the petitioners, reduction in interest and instalment facility granted herein will stand automatically cancelled and respondents will be free to proceed for recovery of the entire amount due. Recovery proceedings will be kept in abeyance for payment as above. (C.N. RAMACHANDRAN NAIR) Judge kk