SOHAN SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The above writ petition has been filed by the petitioner, who was successful bidder in an auction held by the authorities of the Forest Department of the State of Himachal Pradesh on 4.5.1991. The auction notice proposed for the sale, by public auction, of stacked old farras in question subject to the terms and conditions stipulated in the conditions of sale filed by the respondents themselves as Annexure R -l. As per the conditions of sale, the petitioner -bidder was said to have deposited 20% of the security deposit amounting to Rs. 20,400/ - at the time of close of auction. Thereupon, the 3rd respondent by his letter dated 16.5.1991 was said to have conveyed the sanction of the auction by also calling upon the petitioner to pay the balance 80% of the sale value along with the sale tax, surcharge on the sale tax, Income -tax and surcharge on Income -tax within one month from the date of the issue of the letter, without fail. It was also indicated therein that in case of default of compliance with the above condition, the security already deposited by the petitioner will be forfeited as per the conditions of sale and that the timber must be lifted from the sit within four months from the date of final payment, after which it was said that the petitioner will have no right to the timber. Even before the expiry of one month period granted for compliance, the 2nd respondent has issued a communication dated 11.6.1991 bringing it to the notice of the petitioner that part of farras lying at Lohna Khad have been burnt in fire during the intervening night between 6th and 7th June, 1991 and that the petitioner also visited the spot on 10.6.1991 and the balance quantity of farras having been measured to be 243.36 m3., calling upon him further to deposit the proportionate value of the farras in the manner it has been directed earlier. Since the petitioner was not agreeable for the same and submitted his reply calling also for the refund of the security amount, the 2nd respondent passed the impugned communication dated 2.9.1991, among other things, by ordering the forfeiture of the security deposit remitted by invoking condition No. 10 of the auction. Hence, the above writ petition. The respondents also have filed a reply and while traversing the factual claims and contentions of the petitioner also contended that the action taken was justified having regard to the provisions contained in conditions No. 10 and 11 of the auction and that no exception could be taken to the order passed for forfeiting the security deposit on account of the default said to have been committed by the petitioner. It may be pointed out at this stage that though stand was also taken disputing all claims of the petitioner, no objection as such as to the maintainability of the writ petition has been taken. Consequently, the writ petition has been pending all along before this Court, which had been instituted on 20.8.1991 before this Court on 20.8.1991 and has since been taken up for final hearing.

(2.) Heard Mr. Kuldip Singh, learned Counsel for the petitioner and the learned Advocate General for the respondents and the learned Counsel appearing on either side invited our attention to the respective stand taken in the pleadings. After hearing the learned Counsel for quite some time, it has come to light that to countenance the grievance of the petitioner, it requires certain factual claims to be gone into, particularly, keeping into view the conditions relating to the auction, which formed the contract between the parties and the provisions of the Sale of Goods Act to decide before according or denying the relief sought for as to when the sale became complete and when the property in the goods as also the risk passed on to the petitioner and the impact of conditions No. 10 and 11 of the auction in this regard. This may require investigation into the relevant factual details. That apart, the dispute between the parties on either side relates to enforcement or otherwise of the contractual rights flowing from the conditions of auction, as indicated earlier, the contract between the parties. Such question relating to transfer of property in the goods as also the transfer and passing of the risk, in our view, ought not and cannot be also justifiably undertaken for consideration in this proceeding under Article 226 of the Constitution of India. Consequently, we reject this writ petition without going into the details of the merits of the respective contentions of the parties or expressing any opinion thereon and leave the petitioner with liberty to approach the competent Court to vindicate his rights.

(3.) The petitioner is obliged by virtue of Section 80 of the Code of Civil Procedure to issue a statutory notice before instituting any suit before a Civil Court. This has to be also kept into consideration in granting sufficient time to the petitioner to approach the Civil Court. It is by now well settled also by the authoritative pronouncement of their Lordship of the Apex Court in a decision reported in Rameshwarlal v. Municipal Council, Tonk and others, (1996) 6 SCC 100, that in cases where the High Court declines to grant relief in a proceeding under Article 226 of the Constitution relegating at the same time the writ petitioner to a suit in the Civil Court, the petitioner cannot be left remediless and accordingly the time taken in prosecuting the proceedings before the High Court diligently and bona fide, needs to be excluded and that the bare required time to comply with the essential formalities before approaching the Civil Court must be granted to the petitioner. So far as the case on hand is concerned, as pointed out earlier, the materials on record would show that the petitioner has approached this Court bona fide and in the absence of any objection taken regarding the maintainability of the writ petition can be considered to have been bona fide prosecuting also further the said writ petition in this Court. Taking into account all these aspects and the fact that substantial monetary rights of the parties and involved for consideration, we, while relegating the petitioner to the remedy available under the ordinary Civil Law before a competent Civil Court, accord permission to approach the Civil Court and file a suit, if he so desires, within the time limit of four months from this date issuing in the meantime the required and necessary statutory notice envisaged under the Code of Civil Procedure or any other special law for the purpose. On the petitioner so instituting the proceeding within the permitted period of four months, the trial Court will consider and dispose of the matter in accordance with law on merits.