Dismissed

Sonaimuthu R v. the Principal Conservator of Forest

Madras HC13 Sept 2021WP(MD)/16412/2021

Case brief

AI extract

What is this about?

This writ petition challenged an order forfeiting the security money and blacklisting a committee for failure to complete tree felling work due to water stagnation. The court dismissed the challenge to the forfeiture and blacklisting, directed the authority to consider the petitioners representation on water logging before taking the drastic step of blacklisting, and allowed reconsideration regard

What did the court decide?

Petition dismissed; directions issued to consider petitioner's representation on water logging before blacklisting and regarding refund of bid amount.

Sonaimuthu R Vs the Principal Conservator of… — Contract and Commercial Disputes | Madras HC (2021)

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W.P.(MD)No.16412 of 2021

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 13.09.2021

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CORAM

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THE HON'BLE MR.JUSTICE R.SURESH KUMAR

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W.P.(MD)No.16412 of 2021 and W.M.P.(MD)No.13277 of 2021

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R.Sonaimuthu ... Petitioner

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-Vs-

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1.The Principal Conservator of Forest,

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Office of the Principal Conservator of Forest, Panagal Maaligai – 1, Saidapet,

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Chennai – 600 015.

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2.The Divisional Conservator of Forest, Office of the Divisional Conservator of Forest, Virudhunagar Division,

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Virudhunagar District.

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3.The District Forest Officer, Office of the District Forest Officer, Sivagangai. ... Respondents

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Prayer: Writ Petition filed under Article 226 of Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order of the third respondent made in his proceedings in Na.Ka.No.L/4869/2020, dated 05.08.2021, and quash the same as illegal and consequently, direct the respondents to consider the representation of the petitioner dated 26.08.2021.

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For Petitioner : Mr.M.Jegadeesh Pandian For Respondents : Mr.R.Sureshkumar Government Advocate

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O R D E R

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Prayer sought for herein is for a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order of the third respondent made in his proceedings in Na.Ka.No.L/4869/2020, dated 05.08.2021, and quash the same as illegal, and consequently, direct the respondents to consider the representation of the petitioner, dated 26.08.2021. https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.16412 of 2021

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2. The petitioner is a registered contractor and has been doing more works in Sivagangai District. On 16.10.2020, the third respondent called for a tender cum auction for cutting down Seemaikaruvelam Trees (Juliflora trees) in various tanks under Social Forest at Thirupathur Range. In the said tender, the petitioner participated for cutting down Seemaikaruvelam Trees at 1981 Keeranipatti Tank to the extent of 8.55 hectares and the petitioner has also been declared as a successful bidder and bid amount was Rs.5,48,141/-.

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3. As per the tender condition, the petitioner has deposited 1/3^rd of the tender amount before the third respondent. Accordingly, a sum of Rs.1,83,000/- was deposited by the petitioner on 16.10.2020. The remaining amount, that is, the balance amount has to be paid on or before 31.03.2021, failing which, the auction would be cancelled and a fresh auction would be called for.

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4. However, subsequently, when the petitioner visited the tank concerned, he found that the entire catchment area of the tank is filled with rain water, unless the water is de-silted from the tank, it was not possible to cut down the Seemaikaruvelam Trees, as several such trees were grown up upto 30 to 40 feet height, therefore, due to that, the petitioner could not cut the trees. In view of the aforesaid reasons, the whole period upto 31.03.2021, since there has been full of water storage in the tank concerned, the petitioner could not execute the contract work by cutting Seemaikaruvelam Trees.

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5 .While so, the third respondent had issued the order, dated 05.08.2021, whereby, the petitioner was directed to pay the remaining auction amount on or before 31.08.2021, and cut the entire Seemaikaruvelam trees, on or before such date. Since the same has not been completed by the petitioner, the order, dated 05.08.2021 of the third respondent has further stated that, within three days, the 2/3^rd amount should be paid, otherwise, the 1/3^rd amount already paid by the petitioner would be forfeited and the petitioner would be blacklisted from the record of Contractor in that region.

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6. Felt aggrieved over the said order, dated 05.08.2021, passed by the third respondent, the petitioner has moved this writ petition, before which, the petitioner has given a representation on 26.08.2021, seeking the respondents to reconsider the issue and return back the 1/3^rd amount, that is, Rs.1,83,000/-, paid by the petitioner.

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7. Heard, Mr.M.Jegadeesh Pandian, learned counsel appearing for the petitioner, who, having reiterated the above said facts, would https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.16412 of 2021

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submit that, the auction condition does not say that 1/3^rd bid amount already paid by the petitioner would be forfeited, and in this regard, he would further submit that, because of the water storage in the tank for several months, the petitioner could not complete the contract work, and he has not even enter into the tank to cut the seemaikarvelam trees and therefore, the petitioner need not pay any further amount as demanded through the impugned order and for such a genuine reason since the petitioner could not cut the trees and completing the contract, the petitioner cannot be treated as a defaulter for which, the drastic action of blacklisting the petitioner, is very exorbitant and disproportionate penalty, therefore, all such measures, that has been proposed through the impugned order shall be interfered with by this Court, he contended.

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8. Per contra, Mr.D.Ghandhiraj, learned Government Advocate, appearing for the respondents, by relying upon some of the orders in similar circumstances passed by the writ Court recently, has submitted that, Condition No.15 of the tender condition has made it clear that, in case of any default, the EMD amount as well as the 1/3^rd bid amount paid already by the contractor would be forfeited, and also the contractor, would be blacklisted. Therefore, only based on Condition No.15 of the auction condition, this action has been initiated through the impugned order, therefore, the petitioner cannot have any vested right to claim that he is entitled to get back the 1/3^rd bid amount already paid, and he cannot also escape from the proceedings against the petitioner to blacklist him for the alleged violation of the contract conditions. Therefore, the learned Government Advocate would seek indulgence of this Court to reject this writ petition as it is devoid of merits.

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9. I have considered the said rival submissions made by the learned counsel appearing for the parties and have perused the materials placed before this court.

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10. The part of Condition No.15 of the Auction, reads thus: “xg;ge;jj;jpd;gb fhyf;nfLTf;Fs; Ntiy Kbf;Fk; xg;ge;jhuupd; fhg;Gj;njhif Ntiy Kbe;j 60 ehl;fSf;Fs; jpUg;gp nfhLf;fg;gLk;. kPjk; Vyj;njhifapid nrYj;j jtwpdhNyh mtUila gpizitg;Gj; njhif (,.vk;.b) kw;Wk; Kd;du; nrYj;jpa gFjp Vyj;njhifiaAk; muRf;F gwpKjy; nra;ag;gLtJld; ,f;Nfhl;lj;jpy; gjpT ngw;w xg;ge;jjhuu;fs; gl;baypy; ,Ue;J mtuJ ngau; ePf;fk; nra;ag;gLk;. rk;ke;jg;gl;l Fj;jiff;F xg;ge;jk; Kbj;Jf;nfhLf;fhjgl;rj;jpy; me;j Fj;jifapd; kPJ Njwpa VyjhuUf;F ve;jtpj cupikAk; fpilahJ. NkYk;> Nkw;gb Fj;jif kW Vyj;jpw;F nfhz;L tug;gLk;. ,t;thW kW Vyk; elj;Jtjhy; Vw;gLk; tpLjy; my;yJ e;lj;ijAk; Vyk; tpLtjpy; Vw;gLk; nryT njhifiaAk; mtNu <Lnra;a Ntz;Lk;. kWVyj;jpy; mjpfkhd njhiff;F Vyk; Nghdhy; mjpy; ve;jtpj ghj;jpaijAk; md;dhUf;F fpilahJ. kW Vyj;jpy; ,tu;fs; fye;J nfhs;s mDkjpf;fg;glkhl;lhu;fs;.”

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.16412 of 2021

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11. Therefore, it cannot be stated that, it is not part of the auction condition that the respondents has got a right to confiscate the EMD amount as well as 1/3^rd bid amount already been paid by the contractor, in case of any default.

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12. Therefore, in this regard, what has been proposed through the impugned order, cannot be successfully questioned by the petitioner.

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13. Insofar as the further action of blacklisting the petitioner is concerned, as has been stated by the petitioner, it is a very drastic step as the same would have a civil consequence, and in that case, such a huge penalty, since will have a civil consequence, cannot be imposed straight away without giving a proper opportunity of being heard to the petitioner, therefore, after only giving such an opportunity of being heard to the petitioner, such a drastic step can be taken, without which, not as a course such kind of blacklisting of a contractor can be made possible.

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14. Insofar as the claim of 1/3^rd bid amount is concerned, a similar issue had been considered by a learned Judge of this Court in a similar situation in W.P.(MD)No.14693 of 2021, in the matter of M.Sathaiya Vs. The District Forest Officer, Sivagangai, dated 19.08.2021, where the learned Judge has passed the following order:

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“The other aspect that remains to be considered is whether the respondent is entitled to forfeit the 1/3^rd bid amount. The terms and conditions of auction enable such forfeiture. Even so, it is necessary that the amount forfeited should be reasonable and proportionate to the loss like to be incurred by the respondent as a result of breach by the successful bidder. The 1/3^rd amounts that are sought to be forfeited do not appear prima facie to be disproportionate. Nonetheless, this aspect may be re-examined by the respondent because the law requires that such forfeiture should not be penal in nature.

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7. Subject to the above observations, WP(MD) No.14693 of 2021 is dismissed without any order as to costs. Consequently, W.M.P.(MD)No.11662 of 2021 is closed”

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15 . I am in complete agreement with the said view expressed by the learned Judge, as the 1/3^rd bid amount, that is sought to be forfeited do not appear prima facie to be disproportionate.

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16. However, this issue can very well be re-examined or revisited by the respondents. In this context, the representation given by the petitioner, dated 26.08.2021, can very well be https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.16412 of 2021

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considered by the respondents, especially, the third respondent, and accordingly, a revised order or a different order than the one proposed in the impugned order can be passed by the third respondent, provided, the petitioner is able to satisfy that his reason is genuine, for not completing the contract and not paying the pending 2/3^rd amount of the bid amount, because of the fact that there has been a water stagnation and lagging of water for several months, that is, up to the period, which was given to the petitioner-contractor for completing the cutting works.

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17. In that view of the matter, this court is inclined dispose of this writ petition with the following order:

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“that the impugned order cannot be interfered with, as the same is sustained. Therefore, insofar as the challenge made against the impugned order is concerned, this writ petition fails, therefore it is liable to be dismissed and accordingly, the same is dismissed.

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While dismissing the writ petition, this Court direct the respondents, especially, the third respondent, to consider the request of the petitioner, dated 26.08.2021, and in this regard, after giving an opportunity of being heard with regard to the proposed action of blacklisting the petitioner, further action can be taken, and as to whether the petitioner would be entitled to get 1/3^rd bid amount, that is, Rs.1,83,000/- is concerned, that can also been considered and decided by the third respondent, in view of the facts and circumstances, where admittedly, there has been a water logging of the tank concerned for several months.”

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18. With these observations and directions, this writ petition is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

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// True Copy //

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PJL

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD)No.16412 of 2021

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Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.

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1.The Principal Conservator of Forest, Office of the Principal Conservator of Forest, Panagal Maaligai – 1, Saidapet, Chennai – 600 015. 2.The Divisional Conservator of Forest, Office of the Divisional Conservator of Forest, Virudhunagar Division, Virudhunagar District. 3.The District Forest Officer, Office of the District Forest Officer, Sivagangai.

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+1 CC to M/s.SPL. GP ( SR-28950[F] dated 14/09/2021 )

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Order made in W.P.(MD)No.16412 of 2021 13.09.2021

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MMS(CO) RS/NS (23.11.2021) 6P 5C

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https://hcservices.ecourts.gov.in/hcservices/

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Sonaimuthu R v. the Principal Conservator of Forest

Case brief

What is this about?

What did the court decide?

Sonaimuthu R v. the Principal Conservator of Forest

Case brief

What is this about?

What did the court decide?

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