Supreme Court of India
A. MOHAMMED BASHEER versus STATE OF KERALA AND ORS.
- Decided
- 17 July 2003
- Judges listed
- V.N. KHARE, BRIJESH KUMAR, S.B. SINHA
- Disposal
- Appeal(s) allowed
Citations
- Official
- [2003] SUPP. 1 S.C.R. 580 · 2003 INSC 317
- Also cited as
- (2003) 6 SCC 159
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The Forest Department in the State of Kerala decided to auction the C right to collect and remove the residual of the tree growth and fire wood in sub-coupe No. 9 in Coupe No. 3, Pathanamthitta Range by means of public auction and the auction was fixed on 8th February, 1979. On that day, the appellant offered a bid for a sum of Rs. 3 ,00, I 00. Before the bid was con finned, it is alleged that a fire had broken out in the forest, with the result the residual tree growth and fire wood was destroyed. The appellant herein wrote a letter D to the respondents demanding reduction in the money offered by him. Despite that letter, the Managing Director confinned the bid of the appellant and called upon him to produce the stamp paper for executing the necessary agreement and further to deposit Rs. 3,00, I 00 over and above the deposit already made by the appellant. Since the appellant did not deposit the money E as directed by the Managing Director, the respondent re-auctioned the remaining residual tree growth and fire wood for a sum of Rs. 2,00,400. Since there was a shortfall of Rs. 1,21,439 the Managing Director wrote to the appellant to deposit the said amount by way of damages. It is under such circumstances, the appellant filed a petition under Article 226 of the Constitution before the Kerala High Court. F
p. 581
The Kerala High Court in view of its Full Bench decision in the case of Abdul Rahiman v. Divisional Forest Officer, reported in (1988) 2 K.L.T. 290, dismissed the writ petition. It is against the said judgment of the High Court, the appellant is in appeal before us.
p. 581
Ms. Malini Poduval, learned counsel urged that the view taken by the High Court that the matter is covered by a Full Bench decision of the Kera la High Court is erroneous. She urged that the said decision is distinguishable and has no bearing in the present case.
p. 581
We find substance in the argument. In the present case there was only a bid for removal of residual tree growth and substantial part of which was destroyed in fire. It is under such the appellant wrote to the Divisional Forest Officer for cancellation or reduction of the bid amount. In the case of Abdul Rahiman the breach of contract stood admitted. In Abdul Rahiman Bench referred to an earlier decision reported in 1980 K.L.T. distinguished the same on the ground that what was sought therein was not an amount due on account of or in respect any contract thereof and, thus, Section 79 could not be invoked. of the appellant, however, appears to be squarely covered by the Kerala High Court reported in 1980 K.L.T. 850.*
p. 582, margin A
It is trite that the question as to whether there is a breach the notice inviting tender or not should be adjudicated declared to be competent therefor. In a case where there is whether a damage has occurred, a finding of fact in that behalf arrived at by the competent authority, whereafter the amount should be quantified. Such quantification of damages must consonance with the terms of the relevant rules.
p. 582, margin C
As indicated hereinbefore, the appellant herein sought money offered by him as a result of a subsequent event which major'. No concluded contract, thus, could come into effect circumstances, the question of realisation of shortfall in the form does not arise.
p. 582, margin D
In that view of the matter, the appeal deserve to be therefore, allow the writ petition and set aside the judgment challenge.
p. 582, margin E
The appeal is allowed. There shall be no order as to RP.
p. 582, margin F