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Rajendra Singh Bhatia Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtOrissa High Court
Decided On
Case NumberOrl. Jurn. Case No. 678 of 1977
Judge
Reported inAIR1982Ori111; 53(1982)CLT497
ActsConstitution of India - Article 299(1)
AppellantRajendra Singh Bhatia
RespondentState of Orissa and ors.
Appellant AdvocateG. Rath, ;R.K. Rath and ;N.C. Panigrahi, Advs.
Respondent AdvocateAddl. Standing Counsel
DispositionPetition allowed
Cases ReferredMulamchand v. State
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........in certificate case nos. 5/77, 6/77, 7/77, 9/77 and 10/77. 2. the petitioner alleges that he is a forest contractor and in pursuance of a sale notice, for sale of forest produce, he participated in the auction relating to sale of 'departmentally worked (stacked) timbers' and his bid amount being the highest, his bid was accepted, as per the general conditions of sale contained in part-iii of the sale notice, the contractor, 'whose bid is conditionally accepted by the divisional forest officer, subject to the approval of the competent authority and the latter, authority, to approves it'. may be granted the right to take the contract for exploiting the forest produce. no sale is binding or complete until approval where necessary, has been obtained and communicated to the bidder and the.....
Judgment:

Patnaik, J.

1. This writ application Eas been filed for quashing certain Certificate proceedings started against the petitioner by the Certificate Officer, Panchpir, Karanjia in Certificate Case Nos. 5/77, 6/77, 7/77, 9/77 and 10/77.

2. The petitioner alleges that he is a Forest Contractor and in pursuance of a sale notice, for sale of forest produce, he participated in the auction relating to sale of 'Departmentally worked (stacked) timbers' and his bid amount being the highest, his bid was accepted, As per the General Conditions of Sale contained in Part-III of the sale notice, the contractor,

'whose bid is conditionally accepted By the Divisional Forest Officer, subject to the approval of the competent authority and the latter, authority, to approves it'.

may be granted the right to take the contract for exploiting the forest produce. No sale is binding or complete until approval where necessary, has been obtained and communicated to the bidder and the formal agreement is executed by the parties to the contract The clause being :

'No sale shall be binding on the Government until such approval has been obtained and communicated to the bidder and the formal agreement is executed on behalf of the Government.''

Further, Clause 10 (d) in the said part provides :--

'On payment of security deposit as demanded by the Divisional Forest Officer the bidder shall sign the necessary agreement. This signing of the agreement by the bidder will not confer any right to the Forest produce unless the sale is ratified by the competent authority and ratification order, is communicated to him'.

Clause 10 (e) reads :--

'No sale of any lot will be considered valid or complete unless the above conditions have been complied with.....'

According to the petitioner, it is clear from the aforesaid that ratification, wherever necessary, and execution of agreement are the most essential prerequisites for the bid maturing into a contract.

3. The petitioner alleges that his bid for several lots being the highest was provisionally accepted and he was called upon to deposit 10 per cent of the total sale value as security deposit. In due course orders ratifying the bid were communicated and the petitioner was called upon to pay the consideration by 15-11-1975. Thereafter the petitioner requested the Divisional Forest Officer, Karanjia, to take steps for execution of the agreement. However, no effective step was taken for execution of the agreement by the petitioner and the Government and the petitioner alleges that the Divisional Forest Officer on the contrary asked him to deposit the consideration money. The petitioner, however, was apprehensive and did not part with money without the agreement having been executed. It is said, the Divisional Forest Officer nullified the auction and put the lots of timber to re-auction. At the re-auction there was a short fall of about Rs. 51,000/-. Steps having been taken by the Divisional Forest Officer for realisation of the deficiency, the petitioner has filed this writ application to quash the Certificate cases.

4. Sri G. Rath, learned counsel for the petitioner, contends that the provisions contained in Article 299(1) of the Constitution of India are mandatory and in the absence of a contract as contemplated by the said provision, no rights accrued in favour of one party nor liability incurred by the other. He relies on two well known cases of the Supreme Court in K. P. Chowdhry v. State of Madhya Pradesh (AIR 1967 SC 203) and in Mulamchand v. State at Madhya Pradesh (AIR 1968 SC 1218).

5. It is an admitted case that no agreement as contemplated by Article 299(1) of the Constitution of India has been executed by the parties. In the counter affidavit, the opposite parties, however, take the stand that it is a case of waiver and the petitioner having proceeded some way, it is not open to him to say that there was no duly executed agreement. The signing of the agreement was a mere formality.

In K. P. Chowdhry's case (AIR 1961 SC 203) (supra), the Supreme Court expressed itself as follows (at p. 206):--

'In view of Article 299(1) of the Constitution, there can be no implied contract between the Government and any other person, the reason being that if such an implied contract between Government and any other person were allowed, that would in effect, make article 299(1) useless, for then a person who had a contract with Government which was not executed at all in the manner provided in Article 299(1) could get away by saying that an implied contract may be inferred by the facts and circumstances of a particular case. Further if the contract between the Government and another person is not in compliance with Article 299(1), it would be no contract at all and could not be enforced either by the Government or by the other person as a contract'.

In Mulamchand's case (AIR 1968 SC 1218) (supra) the view was reiterated in the following words (at p. 1222) :--

'..... the provisions of Article 299(1)of the Constitution, are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case .....These provisions have not beenenacted for the sake of mere form but they have been enacted for safegurading the Government, against unauthorised contracts. They are based on the ground of public policy, on the ground of protection of general public, and these formalities cannot be waived or dispensed with. If the plea of estoppel or ratification is admitted that would mean in effect the repeal of an imporant constitutional provision intended for the protection of the general public.

6. The contention of Sri Rath, being unanswerable, we allow the writ petition, quash the certificate cases, No costs.

Das, J.

I agree.


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