Abdus Salam Choudhury Vs. the State of Assam and ors. - Court Judgment

Excerpt:
- - 21-3-77 well before acceptance thereof, the respondent no. 9-8-78 asked the petitioner to deposit the kist money and the security money within 7 days and further intimated that the mahal would be put to resale at the risk of the petitioner, in case of his failure to make the deposit. in the said letter, it was further intimated that if the petitioner failed to deposit the said amount, as directed, action would be taken to recover through bakijai proceeding. 6. it is submitted by the petitioner that he having withdrawn his offer to get the settlement of the mahal well before the acceptance thereof by the respondents nos. --cancellation and resale for failure to pay security instalments and to execute agreement. --i agree that i will not withdraw the tender offered by me during the..... homchaudhury, j. 1. this writ petition is directed against the notice/order no. b/18, 717-18/7(a) dt. 19-7-80 issued by the divisional forest officer, cachar division, silchar asking the petitioner to pay a sum of rs. 30075/ - being the difference of an amount offered by the petitioner for settlement of the nunoi c.s. (2nd year lease) bamboo mahal and the amount received by the department on the sale of the said mahal after cancellation of the alleged settlement with the petitioner.2. in response to a sale notice dt. silchar, the 17th dec., 1976 issued by the respondent no. 4, the divisional forest officer, silchar inviting tender for settlement of different bamboo mahals including nunoi c.s. (2nd year lease) bamboo mahal for the period from 1-4-77 to 31-3-78, the petitioner submitted.....

Judgment:

Homchaudhury, J.

1. This writ petition is directed against the notice/order No. B/18, 717-18/7(a) dt. 19-7-80 issued by the Divisional Forest Officer, Cachar Division, Silchar asking the petitioner to pay a sum of Rs. 30075/ - being the difference of an amount offered by the petitioner for settlement of the Nunoi C.S. (2nd year lease) Bamboo Mahal and the amount received by the Department on the sale of the said mahal after cancellation of the alleged settlement with the petitioner.

2. In response to a sale notice dt. Silchar, the 17th Dec., 1976 issued by the Respondent No. 4, the Divisional Forest Officer, Silchar inviting tender for settlement of different Bamboo Mahals including Nunoi C.S. (2nd year lease) Bamboo Mahal for the period from 1-4-77 to 31-3-78, the petitioner submitted tender for settlement of the Nunoi Mahal offering an amount of Rs. 36,575/-.

3. The petitioner states after submission of the tender, on careful inspection of the inner part of the said Mahal, having found that clumps of mature bamboo were taken away by the newly appointed Forest Contractor and that it was not possible to extract left over mature bamboos from the deep forest, the petitioner before consideration and acceptance of his order made in the tender by an application dt. 21-3-77 addressed to the Respondent No. 3 to withdraw his offer requesting that his tender might be cancelled. In spite of the fact that the petitioner withdrew his offer by the application dt. 21-3-77 well before acceptance thereof, the respondent No. 4 vide Memo No. B/8959/60/7(a) dt. 28-4-77 intimated the petitioner that the provisional settlement of the Mahal in question made vide letter No. FGM.24/C/6/77-78/1393 dt. 7-4-77 by the Conservator of Forests stood con-finned and asked the petitioner to sign an agreement on or before 6-5-77 and to deposit the first instalment of Rs. 9,146/- and also the security money amounting to Rs. 1,929/-. That was followed by another letter dt. 1 -7-77 directing the petitioner to pay the first kist money within 7 days. The petitioner neither signed the agreement nor made any deposit. The respondent No. 4 by a letter dt. 26-7-77 intimated the petitioner that the Conservator of Forests had rejected the prayer of withdrawal of tender made vide the application dt. 21-3-77. The respondent No. 4 again by letter dt. 9-8-77 asked the petitioner to deposit the first kist money and the security money within 7 days failing which it was threatened that necessary action would be taken against the petitioner. The petitioner preferred an appeal before the Government of Assam for setting aside the order of settlement. By an order dt. 12-7-88, the Government rejected the petitioners' appeal and intimated that if the petitioner wanted to operate the Mahal, he should be given a chance by re-fixing the period of settlement from 1-7-78 to 30-6-79 provided he paid the security money and kist money before 30-7-78 failing which Mahal should be put to resale at the risk of the petitioner. The petitioner filed application for review of the order of the Government dt. 12-7-78. However, the Government by order dt. 9-8-78 asked the petitioner to deposit the kist money and the security money within 7 days and further intimated that the Mahal would be put to resale at the risk of the petitioner, in case of his failure to make the deposit.

4. Ultimately, on 23-2-79 sale notice of the Mahal was issued and the respondent No. 4 by letter dt. 26-2-79 intimated the petitioner that in case the sale proceeds of the Mahal was lesser than the amount offered by him, the Government dues would be recovered from the petitioner. The petitioner by the application dt. 12-3-79 replied to the said letter denying his liability.

5. By a letter dt. 30-5-79, the respondent No. 4 intimated the petitioner that he was liable to pay the full amount of Rs. 36,575/-, he offered in his tender under S. 79 of the Assam Forest Regulation and asked him to deposit the amount within 10 days. That was followed by another letter dt. 6-11-79 asking the petitioner to deposit an amount of Rs. 36,575/- within 10 days. The petitioner by an application dt. 13-11-79, intimated the respondent No. 4 that his application for review was pending disposal by the Government. Thereafter, on 20-12-79 the respondent No. 4 again asked the petitioner to deposit an amount of Rs. 36,575/- within 10 days. Ultimately, by the impugned notice/order dt. 19-7-80, the respondent No. 4 intimated the petitioner that as directed by the Government, the petitioner was to deposit a sum of Rs. 30,075/- being the difference of the amount offered by the petitioner and the amount received by the Government on resale within 10 days. In the said letter, it was further intimated that if the petitioner failed to deposit the said amount, as directed, action would be taken to recover through Bakijai proceeding. Being aggrieved, the petitioner has approached this Court by this writ petition with the prayer of the setting aside the impugned notice/order.

6. It is submitted by the petitioner that he having withdrawn his offer to get the settlement of the Mahal well before the acceptance thereof by the respondents Nos. 3 and 4, he is not liable to pay any amount to the Government as demanded by the respondent No. 4 in the impugned letter/notice. It is not disputed by the respondents that the petitioner's application dt. 21-3-77 withdrawing his tender offering Rs.36,575/- for settlement of the Mahal was received by the appropriate authorities before consideration and acceptance thereof. The learned Government advocate however, has submitted that the settlement of the Mahal was governed by the provisions of Assam Sale of Forest Coupes and Mahal by Tender System Rules, 1977, hereinafter mentioned as the 'Rules' and the sale notice was issued under the provisions of the said rules. It is further submitted that the petitioner also made a declaration as provided under Schedule 4, Rule 7 of the rules, while he submitted his tender and that having made such declaration in his tender, under Rule 17 read with Sub-rule (4) of Rule 7, the petitioner is liable to pay the difference of the amount offered by the petitioner and the amount received after the resale of the Mahal.

Rule 17 provides:--

'Cancellation and resale for failure to pay security instalments and to execute agreement. If the tenderer whose tender has been accepted fails to pay the security or to pay the instalment on due dates mentioned in Rule 15 or to execute agreement mentioned in Rule 16, the sale of the coupe or mahal shall be liable to be cancelled and the coupe or mahal shall be resold for the remaining part of the coupe or mahal period at the risk of such tenderer as regards the loss to Government and if the proceeds on resale are less than the value at which it originally sold, the difference shall be realisable from him, and further the earnest money shall be forfeited and the whole of the fixed security deposit or part thereof as may be necessary, shall be adjusted against the dues.'

Rule 7 provides;--

'Tender and its enclosure (1) there shall be a separate tender for each coupe or mahal or lot with the requisite Court-fee affixed to it.

(2) Each tender shall be in the tender form as in Appendix II.

(3) The tenderer shall also state in the tender the price which he offers to pay.

(4) He shall also make a declaration as follows:--

'I agree that I will not withdraw the tender offered by me during the time that will be required for intimation of acceptance of the tender for coupe/mahal being given to me nor will I withdraw the tender, then I am liable to pay the whole sum of the tender or such amount on account of deficiency as in the opinion of the Conservator of Forests or Government, as the case may be, considered necessary to make good the whole of the loss and damages that may be suffered by Government in consequence thereof and I shall pay the same and if I fail to pay it, then it will be recovered from me as arrear of land revenue.'

7. As per provision of Rule 17 the sale of coupe or mahal is liable to be cancelled due to failure on the part of the tenderer to deposit security money/kist money etc. and the mahal/coupe shall be resold for the remaining part of the settlement period at the risk of such tenderer.

8. Unless sale of Mahal or Coupe is complete, the question of cancellation of sale and resale thereof cannot and does not arise. Here in the instant case, the petitioner admittedly withdrew his offer made in his tender well before acceptance thereof by the settling authorities and as such, there could not be any sale of the Mahal to the petitioner and the question of cancellation of sale and resale thereof at the risk of the petitioner for the remaining part of the settlement period of the mahal could not and did not arise. Besides, the period of settlement in the instant case was from 1-4-77 to 31-3-78 and the notice for resale of the mahal in question was issued on 23-2-79 long after the expiry of the settlement period, although Rule 17 contemplates resale of the Mahal in respect of the remaining part of the settlement period. The learned Government Advocates placing reliance of Sub-rule (4), Rule 7 has submitted that since the petitioner in his tender made a declaration as contemplates under Sub-rule (4), Rule 7 he is liable to make good the loss suffered by the Government event though he withdrew his tender before acceptance thereof, inasmuch as per declaration the petitioner bound himself to pay the whole sum of the tender or such amount on account of deficiency after resale.

9. It appears that the contents of declaration as provided under Sub-rule (4) of Rule 7 is inconsistent with the provisions of Rule 17 of the Rules. Rule 17 of 'Rule' saddles a tenderer with the liability to make good the loss after a sale of Mahal or coupe is cancelled and is resold for the remaining part of the settlement period of the Mahal or coupe, whereas the declaration as provided in Sub-rule (4) of Rule 7 makes a tenderer liable to make good the loss before a sale of the Mahal is made and even in case the tender is withdrawn before acceptance thereof.

10. Under the provisions of Section 5 of Indian Contract Act, a proposal may be revoked at any time before communication of its acceptance is complete as against the proposer, but not afterwards. Admittedly, the petitioner withdrew his offer made in his tender by the application dt. 21-3-77 well before acceptance thereof. In other words, the petitioner revoked his proposal/offer well before acceptance thereof. Under the provision of the Indian Contract Act, the petitioner has the statutory right to withdraw/revoke his offer for getting settlement of the Mahal or coupe before acceptance thereof by the settling authorities. It being a statutory right of the petitioner under the provisions of the Indian Contract Act entitling him to withdraw/revoke his offer/proposal made in his tender before acceptance thereof by the authorities and the petitioner having done so in the instant case, the contract of sale of the Mahal in question for the settlement period could not be enforced on the petitioner and he cannot be saddled with the liability to make good the deficiency. The settling authorities were in no way prejudiced or inconvenienced by the withdrawal of the offer made by the petitioner in his application dt. 21-3-77 before consideration of tenders. The settling authorities could either settle the Bamboo Mahal in question to other suitable tenderer or could call for fresh tenders, if other tenders were not found acceptable. Instead, the settling authorities, purported to accept the offer of the petitioner which stood legally revoked and insisted on enforcement thereof and ultimately saddled the petitioner with the liability to pay Rs. 30,075/- by the impugned notice/ order.

11. The learned Government Advocate, however, contended that the Rules being local rules framed specially for the purpose of settlement of the forest coupes and Mahal, provisions of Indian Contract Act, cannot be made applicable in respect of settlement of the Mahal with the Forest Contractor.

12. We are unable to accept the submission of the learned Government Advocate. We hold that the petitioner's statutory right under the provision of Contract Act, cannot be overridden or taken away by the provision of the local Rules framed by the State Government regulating the settlement/sale of Mahal/Coupe to the forest Contractors. We hold that the provision of Sub-rule (4) of Rule 7 of the Rules so far as it is contrary to and/or comes in conflict with the provisions of the Indian Contract Act, is inoperative and void and cannot be enforced and that the petitioner under Section 5 of the Contract Act has the right entitling him to withdraw/revoke his offer/proposal made in his tender before acceptance thereof by the settling authorities and having done so by his application dt. 21-3-77, the petitioner is not liable to pay the difference between the amount he offered and the amount received by the settling authority after resale of the Mahal. The impugned demand notice/order asking the petitioner to pay Rs. 30,075/- is, therefore arbitrary, illegal and void and is hereby set aside.

13. The petitioner is allowed. Rule is made absolute. However, we make no order as to costs.

A. Raghuvir, C.J.

14. I agree