IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 OP.No. 34393 of 2000(T) ----------------------- PETITIONER: ------------ 1. P.S.AMINA, W/O.P.S.ISMAIL, PUTHUPPARAMBIL, KOOTICKAL.P.O., KOTTAYAM DISTRICT. 2. P.I.MUHAMMED SHUKKUR, S/O.P.S.ISMAIL, PUTHUPPARAMBIL, KOOTTICKAL.P.O., KOTTAYAM DISTRICT. 3. P.S.ISMAIL, PUTHUPPARAMBIL, KOOTICKAL.P.O., KOTTAYAM DISTRICT. BY ADV. SRI.K.GEORGE VARGHESE KANNANTHANAM SRI.TONY GEORGE RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FOREST (PROTECTION), THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOREST OFFICER, MALAYATTOOR, KODANAD.P.O., ERNAKULAM DISTRICT. 4. THE DISTRICT COLLECTOR, KOTTAYAM. 5. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), KANJIRAPPALLY. BY SHRI.RANJITH THAMPAN, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO. 34393/2000 ORDER ON CMP 58766/2000 IN O.P.NO. 34393/2000 DISMISSED. 18/01/2008 SD/- (C.N.RAMACHANDRAN NAIR, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF MEDICAL CERTIFICTE DATED 08/12/93 ISSUED BY DR.ABRAHAM VARGHESE. P2 : COPY OF MEDICAL CERTIFICATE DATED 07/12/93 ISSUED BY DR.P.JOHN MATHAI. P3 : COPY OF REPRESENTATION DATED 15/12/1993 SUBMITTED BY 1ST PETITIONER AND HER CHILDREN TO THE HONOURABLE MINISTER. P4 : COPY OF LETTER NO.1396/D1/94/F&WLD DATED 06/10/94 OF THE FOREST & WILD LIFE (D) DEPARTMENT ADDRESSED TO 1ST PETITIONER. P5 : COPY OF LETTER DATED 14/12/1994 SUBMITTED BY 1ST PETITIONER TO HONOURABLE MINISTER FOR FOREST. P5(a) : COPY OF CERTIFICATE DATED 01/11/1994 ISUSED BY DR.M.K.BASHEER. P6 : COPY OF LETTER NO.1396/D1/94/FOREST DATED 20/01/1995. P7 : COPY OF CERTIFICATE DATED 28/01/1995 ISSUED FROM MEDICAL BOARD ATTACHED TO THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM. P8 : COPY OF REPRESENTATION DATED 30/01/1995 SUBMITTED BY 1ST PETITIONER TO HON MINISTER FOR LABOUR & FOREST. P9 : COPY OF LETTER NO.1396/D1/94/F&WLD DATED 09/02/1995 OF FOREST & WILD LIFE (D) DEPARTMENT. P10 : COPY OF LETTER DATED 20/02/1995 SENT BY 1ST PETITIONER TO THE MINISTER. P11 : COPY OF LETTER NO.1396/D1/94/FOREST DATED 25/10/1994. P12 : COPY OF LETTER NO.LC1-1555/90 DATED 05/08/1998 ADDRESSED TO 4TH RESPONDENT BY 3RD RESPONDENT. P13 : COPY OF NOTICE NO. MISC.158/2000/B3 DATED 17/11/2000 ISSUED BY 5TH RESPONDENT. P14 : COPY OF NOTICE NO. MISC.158/2000/B3 DATED NIL ISSUED BY 5TH RESPONDENT. O.P.NO. 34393/2000 P15 : COPY OF NOTICE NO.LC1-1555/90 DATED 14/11/1995 ISSUED BY 3RD RESPONDENT. P19 : COPY OF MEDICAL CERTIFICATE DATED 24/10/05. P20 : COPY OF MEDICAL CERTIFICATE DATED 14/03/2003. P21 : COPY OF MEDICAL CERTIFICATE DATED 20/05/03. P22 : COPY OF CERTIFICATE DATED 19/09/2006. RESPONDENT'S EXHIBITS R1(a) : COPY OF LETTER NO.16636/B2/98 FOREST DATED 21/11/99 OF THE PRINCIPAL SECRETARY TO GOVERNMENT TO THE DISTRICT POLICE SUPERINTENDENT, KOTTAYAM. R1(b) : COPY OF LETTER NO.G1-50497/99-K DATED 31/12/99 OF THE DISTRICT POLICE SUPERINTENDENT, KOTTAYAM TO THE PRINCIPAL SECRETARY TO GOVERNMENT. // TRUE COPY // PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ----------------------------------- O.P. No. 34393 of 2000 ------------------------- Dated, this the 18th day of January, 2008 J U D G M E N T Heard learned counsel for petitioners and learned Government Pleader for respondents. 2. Petitioners are challenging demand of differential price towards loss sustained to the Forest Department, on account of 3rd petitioner’s failure to make full payment and to lift the teak poles purchased by him in auction held on 07/10/1993, and consequent re-auction of the same held on 28/09/1994. In the re-auction, the price recovered was only around Rs.2 lakhs as against the purchase for around Rs.10 lakhs made by 3rd petitioner in the first auction. Petitioners 1 and 2 are wife and son, respectively, of 3rd petitioner. All of them contend that 3rd petitioner was not in a stable state of mind, when he participated in the auction. Petitioners have cited several instances of the 3rd petitioner participating in auction for purchase of timber from the Forest Department and thereafter abandoning the matter. Several medical certificates are produced in this Court, all of which show that 3rd petitioner is under treatment for mental problem for several years and even during the period he participated in the auction, which led to the impugned demand. O.P.NO. 34393/2000 -2- Even though 3rd petitioner was the Vice President of the Panchayat, the former panchayat President, under whom the 3rd petitioner was the Vice Presient, has issued Ext.P22 to the effect that 3rd petitioner was not in a position to manage his affairs as Vice President of the Panchayat on account of mental disease. During hearing held in the previous occasion, this Court called for additional affidavit from the Divisional Forest Officer to find out whether the business transaction entered into by 3rd petitioner has any reflection on his mental problem. It is seen from the details furnished in the additional affidavit filed by the Divisional Forest Officer that the bid was on competitive basis and the price offered by 3rd petitioner was nothing abnormal to warrant inference that he had any mental problem at the time of entering into the contract. However, learned counsel appearing for petitioners contended that 3rd petitioner had lucid intervals when his disease was under control on account of application of drug. 3. Under the Contract Act, in order to make a contract valid the contracting party should be of sound mind. If the 3rd petitioner was not in a sound mental condition at the time of participating in the auction, then the contract entered into by him is invalid and he O.P.NO. 34393/2000 -3- is entitled to come out of the liability in the form of damages for breach of contract. In view of the mental instability claimed by 3rd petitioner and the medical certificates produced in support thereon and in view of the similar cases 3rd petitioner involved almost in the same period with Forest Department, I dispose of this original petition with direction to the concerned official of the Forest Department to get an enquiry conducted and decide 3rd petitioner’s ability to enter into contract at the time of auction, his capacity to execute the contract and then to refix compensation payable afresh. The impugned orders are, therefore, set aside with direction to the Divisional Forest Officer or the concerned Forest Official, as the case may be, to refix liability within a period of three months from the date of receipt of a copy of this judgment. RR proceedings initiated against the petitioners, therefore, will remain cancelled and thereafter recovery, if any, will be based on fresh adjudication to be issued. 4. Before parting with this, I feel, loss caused to the Government is partly on account of re-auctioning the teak poles with an inordinate delay of nearly one year. If delay is happened on account of the fault of any of the officers of the Forest O.P.NO. 34393/2000 -4- Department, proportionate compensation for the loss sustained to the Government, to such extent, should be recovered from such officer. Secretary to Government, Forest Department is directed to conduct enquiry as to why the first sale in favour of the 3rd petitioner was cancelled and why after cancellation of the first sale in favour of 3rd petitioner, the teak poles were not resold within a reasonable time to avoid loss to the Government. If any officer is found responsible, Secretary to Government should issue show cause notice to him, adjudicate the matter and recover the amount of loss caused in the deal or the proportionate amount of loss caused from such officials. This original petition is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE.) jg