Quashed

P.K.Mohammed Basheer v. State of Kerala

Kerala HC27 Mar 2008OP/8719/1997

Case brief

AI extract

What is this about?

Single judge quashed penalty orders levied against a forest contractor for unfelled trees. Court held penalty clauses applied only to standard contract expiry, not extended periods, absent explicit terms, directing fresh calculation based on valid extended timeline.

What did the court decide?

Impugned orders Ext.P3 and P7 quashed; petitioner directed to appear to have liability worked out by Government based on extended contract period.

P.K.Mohammed Basheer Vs State of Kerala — Public Procurement and Tenders | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN

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THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930

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OP.No. 8719 of 1997(K)

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----------------------------------

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PETITIONER:

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--------------------

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P.K.MOHAMMED BASHEER, FOREST CONTRACTOR, “FIRDOUSE”, PATHAPIRIYAM, MANJERI – 3.

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BY ADV. SRI.K.P.DANDAPANI (SR.) SMT.SUMATHY DANDAPANI

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RESPONDENTS:

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-------------------------

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE (B) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

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2. THE CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM.

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3. THE DIVISIONAL FOREST OFFICER, SOUTH WAYANAD, KALPETTA.

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R1 TO R3 BY SPL. GOVT. PLEADER(FORESTS)SRI. RENJITH THAMPAN

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THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/10/2007, THE COURT ON 27/03/2008 DELIVERED THE FOLLOWING:

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Kss

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ORDER ON C.M.P.NO.15119/1997 IN O.P.NO.8719/1997

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DISMISSED

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27/03/2008

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SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1: COPY OF AGREEMENT NO.5/92-93 DTD. 26/02/1993 ENTERED INTO BETWEEN SHRI. P.K.MOHAMMED BASHEER, THE PETITIONER AND THE 1ST RESPONDENT.

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EXT.P2: COPY OF THE ORDER G.O.(RT) NO.62/86/F&WLD DTD. 12/2/96 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER.

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EXT.P3: COPY OF PROCEEDINGS OF THE 3RD RESPONDENT VIDE NO.B1.8997/92.VOL.XII DTD. 4/03/96 ISSUED TO THE PETITIONER.

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EXT.P4: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA ON 19/03/96.

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EXT.P5: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 24/09/96.

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EXT.P7: COPY OF ORDER NO.G.O.(RT) NO.151/97/F&WLD DTD. 11/04/97 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER.

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EXT.P8: COPY OF LETTER NO.C3-11335/92 DTD. 19/04/96 OF THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.

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EXT.P9: COPY OF LETTER NO.C3-11355/92 DTD. 11/06/96 OF THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.

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EXT.P10: COPY OF LIST SHOWING DETAILS OF TRESS HANDED OVER TO THE PETITIONER, VILLAGE-WISE AND DATE-WISE, REFEFRRED TO IN THE ORIGINAL PETITION.

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EXT.P11: COPY OF RELEVANT EXTRACT OF TENDER NOTIFICATION DTD. 21/11/1992 VIDE NO.B1.3997/92 PUBLISHED BY THE FOREST DEPARTMENT, KERALA.

Kss

..2/-

..2....

O.P.NO.8719/1997 K

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EXT.P11(A): COPY OF ORDER NO.G.O.(RT) 5/94/FOREST DTD. 6/1/94 OF THE STATE GOVERNMENT.

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EXT.P11(B): COPY OF ORDER NO.G.O.(RT) 383/94/FOREST DTD. 27/09/94 OF THE STATE GOVERNMENT.

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EXT.P11(C): COPY OF ORDER NO.G.O.(RT) 132/95/F&WLD DTD. 28/03/95 OF THE STATE GOVERNMENT.

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EXT.P11(D): COPY OF ORDER NO.G.O.(RT) NO.211/95/F&WLD DTD. 3/06/95 OF THE STATE GOVERNMENT.

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EXT..P11(E): COPY OF ORDER NO.G.O.(RT) 62/96/F&WLD DTD. 12/2/96 OF THE STATE GOVERNMENT.

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EXT.P12: COPY OF LETTER NO.C3-11335/92 DTD. 19/21/3/1995 OF THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.

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EXT.P13: COPY OF JUDGMENT DTD. 6/02/1995 IN O.P.NO.360/1995P OF THIS HONOURABLE COURT.

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1ST RESPONDENT'S EXHIBITS:

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EXT.R1(A): COPY OF THE LETTER DTD. 23/09/93 OF THE D.F.O. ADDRESSED TO THE PETITIONER.

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EXT.R1(B): COPY OF THE LETTER DTD. 23/09/93 OF THE D.F.O. ADDRESSED TO THE PETITIONER.

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EXT.R1(C): COPY OF THE MINUTES OF THE MEETING OF THE CONSERVATOR OF FORESTS, NORTHERN CIRCLE, KOZHIKODE DTD. 9/6/94.

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EXT.R1(D): COPY OF THE MINUTES OF THE MEETING OF THE CONSERVATOR OF FORESTS, NORTHERN CIRCLE, KOZHIKODE DTD. 19/07/94.

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EXT.R1(E): COPY OF THE LETTER DTD. 12/08/93 OF THE RANGE OFFICER TO THE D.F.O.

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EXT.R1(F): COPY OF G.O.(RT) NO.5/94 DTD. 6/01/94.

/TRUE COPY/

P.S.TO JUDGE

Kss

THOTTATHIL B. RADHAKRISHNAN, J.

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= = = = = = = = = = = = = = = = = = = = = =

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O.P.No.8719 of 1997-K

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= = = = = = = = = = = = = = = = = = = = = =

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Dated this the 27^th day of March, 2008.

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JUDGMENT

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1.The petitioner is a forest contractor. He challenges Exts.P3 and P7 by which penalty is imposed on him on account of failure to fell all the trees handed over to him in terms of Ext.P1 agreement.

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2.Ext.P1 contains forty (40) conditions which are specified in it. Condition No.2 thereof, which is relevant for the purpose of this case, reads as follows:

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“2. The contractor shall fell all the marked trees entrusted to him except those trees which have been certified by the Divisional Forest Officer, after his inspection, as wholly defective or

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OP8719/1997 -: 2 :-

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impossible to be felled without causing serious damages to their stems, to other trees standing nearby and collect all available timber thereof. For every marked tree left unfelled at the expiry of the contract period without proper authorisation from the said Divisional Forest Officer, the contract is liable to pay a penalty of Rs.200/- (Two hundred only) or such higher penalty fixed by the Divisional Forest Officer. For every marked tree felled, but left uncollected without proper written authorisation from the Divisional Forest Officer, the contract is liable to pay a penalty of Rs.200/- (Two hundred only) per tree or such higher penalty fixed by the Divisional Forest Officer besides the value of the timber and firewood at scheduled rates if rendered useless, deteriorated or left uncollected.”

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(emphasis supplied)

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3.Ext.P2 Government Order dated 12-2-1996 says, among other things, that on 27-9-1994, 28-3-1995 and 3-6-1995, as per separate orders, Government granted extension of time, also ordering that the question of penalty for those extensions will be

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OP8719/1997 -: 3 :-

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examined and orders issued separately. By Ext.P2, further extension of time was granted subject to realisation of penalty as per the terms and conditions in the Agreement. The penalties for the extended periods were to be realised as per the conditions of the agreement.

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4.The contentions of the petitioner are two fold. According to him, the dealers and certain organizations, as also lorry owners and unions of loading workers paralyzed the activity by different methods. The work was very risky because the colony was inhabitated. The felled trees were marked in excess of those anticipated at the time of entering into the agreement. The peculiar hazards and arduous situation were brought to the notice of the authorities on different occasions. Apart from that, it is also contended that penalty cannot be imposed for any extended period of the contract because Clause 2, quoted above, makes reference to expiry of the contract period and not “original contract

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OP8719/1997 -: 4 :-

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period”. Challenging Ext.P7, it is further contended that none of the grounds raised by the petitioner was considered by the Government. As against the impugned orders, it is also contended that they are passed in a mechanical manner without concluding on the contentions of the petitioner.

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5.A penalty of Rs.200/- per tree or such higher penalty as may be fixed by the DFO is the liability on the contractor for every marked tree left unfelled at the expiry of the contract period, without proper authorization from the DFO. Clause 13 of Ext.P1 provides that the period of contract will be eight months from the date of intimation of work order. It provides that no extension of the contract period shall ordinarily be granted. However, DFO may grant extension for 15 days and the Conservator of Forests for another 15 days, if the delay is due to circumstances beyond the control of the contractor, subject to realization of penalties

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OP8719/1997 -: 5 :-

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stated under that clause. It also provides for re-arranging the work on risk and costs. But a reading of the provisions under Clause 13 regarding the rate of penalties would show that such penalty is applicable to timber, teak and rosewood billets, firewood etc. and it does not refer to any penalty for extension of time for felling of the trees. The provision for penalty in Clause 15 of Ext.P1 is regarding the default in submission of monthly accounts. A survey of different provisions of Ext.P1 would show that one has to fall back into Clause 2 thereof to consider the question of imposition of any penalty for leaving any marked tree, as unfelled. The situs of such determination of liability by way of penalty is “at the expiry of the contract period”. Clause 13 contemplates “extension of the contract period”. Though the grant of it by the DFO or Conservator could be only in terms of that clause, when a period of contract is fixed as eight months from the date of intimation of the work order and when that period is extended,

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OP8719/1997 -: 6 :-

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what stands extended is the contract period. This means that the extensions of time postpone the point of time could be called as “at the expiry of the contract period”. Ext.P1 does not, in terms, provide for extension of the period for felling the marked trees, that too, with any penalty clause. The extension of time for such purpose could not have been granted by the DFO or the Conservator. It was, obviously, therefore that the Government issued the time extension orders.

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6.In so far as the State and the petitioner are concerned, they are bound by the terms of Ext.P1 entered into between them. That does not contain any provision for imposition of penalty for not felling any tree or trees within the extended contract period. Any term for imposition of a penalty has to be strictly construed. In that view of the matter, in the absence of any categoric provision in Ext.P1, it is impermissible to impose a penalty for not felling

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OP8719/1997 -: 7 :-

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marked trees within the extended contract period. Therefore, any demand in terms of Clause 2 of Ext.P1 could be had only after the expiry of the contract period, including any extended contract period, unless, of course, the parties have an agreement between them to the contrary, during the progress or performance of Ext.P1.

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7.In the light of what is stated above as regards the effect of Ext.P1, it can be seen that the impugned orders are passed solely on the basis of the reasons stated in Ext.P2 and that would not stand because, the time for felling the trees was extended even thereafter.

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8.However, the petitioner could be made liable for penalty in terms of Clause 2 of Ext.P1 for trees left unfelled at the expiry of the contract period, even after the extended period. This means that for the trees left unfelled after the period of extension granted as per Ext.P2, penalty could be imposed in terms of Clause 2 of

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OP8719/1997 -: 8 :-

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Ext.P1. While determining the amount of penalty that the petitioner would have to pay at the expiry of the contract period, taking that the contract period would expire only on the expiry of the period extended as per Ext.P2, it is the specific term of Ext.P1 agreement, entered into between the parties, that for each tree left unfelled at the expiry of the contract period, the contractor is liable to pay penalty of Rs.200/- and that amount is only the minimum payable amount while the last limb of the last sentence of Clause 2 of Ext.P1 provides authority for the DFO to fix a higher penalty under certain circumstances. On the face of that term of contract, the plea of the petitioner that there were quite lot of extenuating circumstances by which he had demonstrated before the Government against the imposition of penalty, does not stand.

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9.The result of the aforesaid discussion is that the petitioner can be made liable only to pay

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OP8719/1997 -: 9 :-

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penalty, in terms of Clause 2 of Ext.P1, for the trees that were left unfelled by him at the expiry of the contract period by taking the contract period as that period to which it stood extended as per Ext.P2, i.e., six months from 1- 1-1996. On the expiry of that period of six months from 1-1-1996, the contract period has expired. It is clarified that this finding is only as regards the penalty leviable on the ground of having left trees unfelled. No other head of claim, if any, of the Government is interfered with, as per this judgment.

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10.In the result, the impugned Exts.P3 and P7 are quashed and it is directed that the liability of the petitioner under Clause 2 of Ext.P1 agreement shall be worked out in terms of what is stated above. Since this matter is more than a decade old, it is directed that it would suffice if the petitioner is heard by the Government in the matter, and the workings are arrived at by the Government, with the assistance of the

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OP8719/1997 -: 10 :-

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subordinate officials, and orders issued by the Government accordingly. To aid such process, the petitioner is directed to appear or cause appearance on his behalf on 22-4-2008 in the office of the Principal Secretary to Government in the Forest and Wildlife(B) Department of the Government of Kerala, for appropriate listing of the matter.

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THOTTATHIL B. RADHAKRISHNAN, JUDGE.

Sha/260308

OP8719/1997

-: 11 :-

THOTTATHIL B. RADHAKRISHNAN, J.

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= = = = = = = = = = = = = = = = = O.P.No.8719 of 1997-K

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= = = = = = = = = = = = = = = = =

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JUDGMENT

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Dated: 27^th March, 2008.

P.K.Mohammed Basheer v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.K.Mohammed Basheer v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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