Decided on January 06,1986

STATE Respondents


BHAT, J. - (1.) Letter dt.25-11-1985 and tender notice dt/-19-9-1985 issued by respondent 2 are sought to be quashed by a writ of certiorari. A further writ of mandamus is sought against respondents 1 to 3 commanding them to supply 1200 Kgs. of P.C.-II allegedly covered by allotment order/letter of acceptance No.10861 dt.20-1-1982 which are said to have been sold to the petitioners and held by respondent as bailees and in the alternative relief of refund of deposits with damages and upto date penal interest is claimed thereon. By a further writ of prohibition respondents 1 to 3 are sought to be restrained from allotting/selling/supplying the said goods to respondent 4 or to any other person.
(2.) Facts urged in this writ petition are briefly as under : Petitioner 1 is said to have offered to purchase pierced cocoons II (for short PC-II) and in this regard a letter is addressed to respondent 3. The price of PC II is agreed to be paid at Rs.37.31 per Kg. A quantity of 1200 Kgs. of PC-II is offered to be purchased which offer is accepted by the respondents and following conditions are laid down with the acceptance of the offer by them. i) Goods are to be lifted to the tune of 1200 Kgs. at respondents' office at Tilloo Talab, Jammu against hundred percent cash payment. ii) That before order was placed with petitioners, the petitioner I was to deposit Rs.5000/- in shape of C.D.R. Later on this amount of Rs.5000/- was enhanced to Rs.7,500/-. iii) After drawing up of the agreement goods were to be lifted within one month's time. iv) Petitioners were asked to intimate whether this was acceptable to them: In this regard the expression used in Annexure-'A' to the writ petition "so please intimate" are mentioned by respondents to the petitioners. Petitioner 1 is said to have appointed petitioner 2 as his agent for executing the agreement and for making necessary arrangements for collection and disposal of the goods. Intimation in this regard was given to respondent 3 also. Petitioner 1 is said to have been in hurry as he wanted to get back to Calcutta where he resides in connection with the celebration of Idd, therefore petitioner 2 was assigned the job of taking further steps in the matter. Petitioner 2 is said to have handed over an amount of Rs.7,500/- and a letter of acceptance to one Shri Pitamber on 24-4-1982 on the promise given by the said Pitamber that he would prepare a C.D.R. for the amount and get it deposited in the departmental Chest under the relevant head and forward the receipt to the petitioners. In his letter dt.23-3-1982 which is Annexure 'B' to the writ petition. Petitioner No.1 is said to have informed respondent 3 that 1200 Kgs. of PC-II may he supplied to petitioner 2 against cash payment of hundred percent the C. D. R. of Rs. 7,500/- was enclosed with the letter. Petitioner 2 is said to have remitted an amount of Rs.35,000/- by a Demand-draft dt.2-7-1982 to respondent 3 which was deposited in the Govt. Treasury at Jammu on 3-3-1983. On this being done petitioners have claimed goods because in their opinion execution of the agreement had become redundant; but respondent 3 is said to have insisted on drawing up of the agreement. Accordingly petitioner 2 is said to have deposited Rs.2.50 non-judicial stamp paper for the purpose.
(3.) Petitioner 2 is thereafter said to have been held Up at Calcutta due to prolonged and serious illness of his father, therefore he was not able to pursue the matter. But when he arrived at Jammu after some time, he found that agreement was not drawn and he had approached the office of respondent 3 a number of times for execution of the agreement but his attempt had yielded no result. Therefore, letters are said to have been addressed to the respondents for release of the goods because hundred percent advance cost was paid. The amount of Rs.7,500/- which was said to leave been handed over to one Shri Pitamber, actually is said to have been embezzled by him and he has not furnished C.D.R. for the said amount before the respondent 3, therefore the petitioner is said to have lodged a complaint against him but before any action could be taken against him, the said Pitamber who was the dealing Assistant in the office of the respondents had expired. Petitioner 2 is said to have requested the Minister for Industries and Commerce on 17-8-1985 that he was ready to pay an amount of Rs. 7,500/- as CDR against the misappropriated amount and had pleaded with him for release of the goods. The Minister had forwarded this communication to respondent 3 with a note that the petitioner's case was genuine and hard, therefore his grievance should be redressed and information given to the Minister. Copy of this letter is also on the record an Annexure 'C to the writ petition. A further representation was made by petitioner 2 to the said Minister when the earlier representation did not yield any result. The same was forwarded to respondent 2, copy whereof is Annexure 'D' to the writ petition. The petitioners are said to have approached the State Chief Minister also and their representation was forwarded to various authorities for necessary action but nothing concrete was done in their favour. The impugned letter, Annexure E to the writ petition calls upon petitioner 2 to take refund of Rs.35,000/- deposited in the Govt. Chest or take delivery of PC II for the said amount at the present market rate. Petitioner 2 is also informed that he failed to execute the agreement with the department in time and has also failed to lift the goods in time, therefore his amount was being refunded to him. The choice was left with petitioner 2 in the matter. The petitioner is also aggrieved against the tender notice which is contained in Annexure-'F' to the writ petition whereby 2293 Kgs. Pierced and 2999 Kgs. of cut cocoons are offered for sale.;

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