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N. Vellayan Vs. the District Forest Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1960)1MLJ434
AppellantN. Vellayan
RespondentThe District Forest Officer and anr.
Excerpt:
- - the appellant thereupon rushed up to this court and filed the writ petition out of which this appeal arises for the issue of a mandamus or like writ to direct the district forest officer not to take any further steps to confirm the sale either by execution of lease deed or otherwise in favour of the second respondent. for instance the expression 'time of sale' may well be understood as the time of the commencement of the auction or the time of the conclusion of the auction when the highest bid is accepted......vellayan who is the appellant before us for the issue of a writ of mandamus directing the district forest officer, ramanathapuram division at sekkalai, karaikudi, not to take any further steps to confirm the sale in favour of the second respondent, s.r. sundaraja iyengar. the sale was of the right to quarry minerals in the poolankurichi, tirupathur range in the sivaganga estate forests. the auction took place on the 29th may, 1959, at the district forest office next to sekkalai police station, karaikudi. the appellant and the second respondent were among the bidders at the auction. there was a notification published in the local district gazette setting out the general and special conditions relating to the conduct of the auction sale. the decision of this appeal depends upon the.....
Judgment:

P.V. Rajamannar, C.J.

1. This is an appeal against the judgment of Rajagopala Ayyangar, J., in Writ Petition No. 553 of 1959, filed by one Vellayan who is the appellant before us for the issue of a writ of mandamus directing the District Forest Officer, Ramanathapuram Division at Sekkalai, Karaikudi, not to take any further steps to confirm the sale in favour of the second respondent, S.R. Sundaraja Iyengar. The sale was of the right to quarry minerals in the Poolankurichi, Tirupathur Range in the Sivaganga Estate forests. The auction took place on the 29th May, 1959, at the District Forest Office next to Sekkalai Police Station, Karaikudi. The appellant and the second respondent were among the bidders at the auction. There was a notification published in the local District Gazette setting out the general and special conditions relating to the conduct of the auction sale. The decision of this appeal depends upon the construction of one of such conditions.

2. There is no dispute as to what happened at the auction. The appellant's last bid was Rs. 1,175. The second respondent raised the bid to Rs. 1,180. When the appellant wanted to bid higher, the District Forest Officer, prevented him from doing so on the ground that he was not able to produce the Sales Tax Clearance Certificate in the form appended to the sale notification. As the bid of the second respondent for Rs. 1,180 was the last highest bid it was accepted by the District Forest Officer. The appellant thereupon rushed up to this Court and filed the writ petition out of which this appeal arises for the issue of a mandamus or like writ to direct the District Forest Officer not to take any further steps to confirm the sale either by execution of lease deed or otherwise in favour of the second respondent.

3. The condition in question is contained in paragraph 3(f) of the general conditions. It runs thus:

The sales-tax clearance certificate in the form appended to the sale notice should be produced at the time of sale in cases where the sale amount exceeds Rs. 1,000.

The material portion of the Appendix is in the following terms:

Any person desiring to bid at the auction sale, where the value of lease exceeds Rs. 1,000 should produce a sales-tax clearance certificate in the form appended below issued by the assessing authority having jurisdiction over the place of business (Assistant Commercial Tax Officer or Deputy Commercial Tax Officer as the case may be). Unless he produces such certificate at the time of auction to the officer conducting the sale, he will not be allowed to remit earnest money deposit and partake in the sale.

The actual certificate by the Commercial Tax Officer concerned has to be to the following effect:

In my opinion the applicant mentioned above has been/has not been doing everything possible to pay the tax demands promptly and regularly and to facilitate the completion of pending proceedings.

There is a note which says:

A separate certificate should be obtained in respect of each of the places of branches of the applicant from the Deputy Commercial Tax Officer or Assistant Commercial Tax Officer having jurisdiction over that place.

The columns in the form which should be filled up by the applicant include the places of business of the applicant and the districts, taluks and divisions in which the applicant was assessed to sales-tax in the preceding four years.

4. The appellant alleged that he was not a dealer within the meaning of the General Sales Tax Act and, therefore, he could not procure any certificate that he had been doing everything possible to pay the tax demands promptly. It appears that other bidders were able to produce certificates though they were not dealers; but the only certificate which the concerned Commercial Tax Officer gave was that the applicant's name is not to be found in the books of the department. This of course would not be strictly in the form contemplated by the notification. Be that as it may, the District Forest Officer thought that once the bid amount exceeded Rs. 1,000, none of the bidders could be allowed to bid further without the production of the sales-tax clearance certificate in the form appended to the notification even though the particular bidder professed that he was not a dealer.

5. Rajagopala Ayyangar, J., after discussing the scope of this rule, read along with the Appendix, and also referring to the other conditions set out the notification, came to the conclusion that the expression 'at the time of the sale' in paragraph 3(f) should be construed to mean at the time of the highest bid, that is to say, at the conclusion of the auction. From this interpretation it follows that the District Forest Officer was not right in calling upon the appellant to produce the sales-tax clearance certificate when the sale had not been concluded and the highest bid had not been reached. Nevertheless, the learned Judge refused to grant the appellant any relief for this reason, namely, that in any case even if the appellant's bid was the highest, it could not have been accepted because he would not have been able to produce the necessary sales-tax clearance certificate at the conclusion of the sale. He therefore dismissed the application made by the appellant. Hence this appeal.

6. Before referring to the relevant rules which are likely to be of assistance in construing paragraph 3(f), we may endorse in full the opinion expressed by Rajagopala Ayyangar, J., that the rules in many places are unintelligible and it is difficult often to be certain as to the meaning of the expressions. As the learned Judge says, most of the conditions are 'so ill drawn as to be beyond comprehension '. In another place the learned Judge says 'The phraseology adopted for most of these clauses is so obscure that it is really not easy to find out their exact meaning.'

7. It is sufficient to refer to the following conditions for the disposal of the appeal:

2. (b) No person will be allowed to bid at the auction sale unless he has previously deposited a sum of Rs. 100 with the officer conducting the sale as earnest money deposit.

(c) Intending bidders should produce a solvency certificate issued only by Tahsildar or Deputy Tahsildar within whose jurisdiction such person owns immovable properties and provided that the date of such certificate is not earlier than 6 months prior to the date of sale and unless such certificate has been accepted by the officer conducting the sale as satisfactory.

(d) The successful bidder at the close of the sale should furnish a written statement, detailing the properties owned by him in his name, together with a certificate that they are not encumbered.

3. (b) No solvency certificate is necessary if the bidder deposits an earnest money deposit 50 per cent, of the average sale amount on the item in which he is interested subject to a maximum of Rs. 1,000. This amount would be forfeited to Government if he fails to pay the full amount and the security deposit immediately after the auction if he is the highest bidder....

(e) In the case of sales involving not more than Rs. 500 the production of solvency certificate at the time of auction will be dispensed with subject to the condition that bidders remit necessary earnest money deposit at the time of sale and pay the entire amount immediately at the close of the sale.

We have already extracted 3(f) above.

(g) The highest bidder should produce the income-tax clearance certificate within 15 days of receipt of confirmation order failing which the one-third or one-fourth of the sale amount in addition to his earnest money deposit will be forfeited and the contract is also liable for termination. This applies only if the sale amount exceeds Rs. 10,000.

8. It will be seen from a perusal of the several conditions that the term 'sale', 'sale amount' and 'auction' have been used indiscriminately. For instance the expression 'time of sale' may well be understood as the time of the commencement of the auction or the time of the conclusion of the auction when the highest bid is accepted. When the officer is described as 'conducting the sale' what is meant is conducting the auction and when a person is not to be allowed to partake in the sale, obviously, it means that the person will not be allowed to partake in the auction, that is, be allowed to bid.

9. We agree with Rajagopala Ayyangar, J., that if we understand the expression 'time of sale' which occurs in paragraph 3(f) to mean the conclusion of sale when the highest bid is reached, then it cannot be reconciled with what is to be found in the Appendix which contains a definite provision that unless any person desiring to bid at the auction produces a sales-tax clearance certificate for any item which would involve more than Rs. 1,000 he will not be allowed even to remit the earnest money deposit and partake in the sale. Now we have seen that the deposit of the earnest money is made even before the auction commences. Indeed no person can be allowed to bid at the auction unless he has previously made the deposit. In the Appendix there is a clear provision that an intending bidder will not be allowed to make the deposit of the earnest money unless he produces a sales-tax clearance certificate. Of course, if he is not allowed to make the deposit he will not be allowed to partake in the auction. There is no doubt an ambiguity as regards the expression 'where the sale amount exceeds Rs. 1,000.' But some light is thrown on the meaning of this expression by the Appendix and paragraph 3(b). The Appendix speaks of the value of the lease exceeding Rs. 1,000. This obviously does not refer to the highest bid reached at the auction itself because the Appendix makes it incumbent on a person desiring to bid at an auction sale the value of which exceeds Rs. 1,000 to produce a sales-tax clearance certificate before he is allowed to make even a deposit of the earnest money. Condition 3(e) refers to cases of sales 'involving not more than Rs. 500.' The basic idea appears to be this. The District Forest Officer is expected to have a rough estimate of the probable amount which would be reached at the auction. The officer gains his knowledge from an average computed on the amount fetched at previous sales. We have already referred to rule 3(b) which mentions the average sale amount relating to a particular item. The District Forest Officer when he is of the opinion that the highest bid reached would exceed Rs. 500 should insist on the production of a solvency certificate but if, in his opinion, the highest bid was not likely to be more than Rs. 500, then he can dispense with the production of the solvency certificate. If follows likewise that if the officer conducting the sale was of the opinion that the probable amount for which the sale would be concluded is likely to exceed Rs. 1,000, then he can insist on the bidder producing a sales-tax clearance certificate even at the commencement of the auction. If any bidder is unable to comply with the direction he will not be allowed to make the earnest money deposit and will not be allowed to partake in the auction. On this point we are not inclined to agree with Rajagopala Ayyangar, J., that on a proper construction of Rule 3(f) it should be held that the sales-tax clearance certificate should only be produced at the time when the auction is concluded and the highest* bid exceeds Rs. 1,000.

10. We are unable to find any provision in the notification under which the District Forest Officer conducting the sale has got the power and the authority to prevent one of the bidders from continuing to bid when the bid during the course of the auction exceeds Rs. 1,000. The officer is not called upon to insist upon the production of a certificate during the progress of the auction. The time at which the officer can insist upon production of the sales-tax clearance certificate is sometime before the auction commenced, that is, even before the deposit of the earnest money.

11. There is no dispute as to the facts, namely, that earnest money deposit was allowed to be made by the appellant and he was allowed to partake in the auction. Once the District Forest Officer allowed the appellant to bid, he had no power during the course of the auction to prevent the appellant from continuing to bid at any particular stage. Mr. Ramaswami Ayyangar, learned Counsel for the second respondent who is the contesting respondent, urged that the officer was evidently of the opinion that it was only when during the progress of the auction any bid exceeds Rs. 1,000 that he should call upon every bidder to produce a sales-tax clearance certificate and it was contended that the District Forest Officer's interpretation of the rules is final and binding as it were on this Court. In support of this last argument Mr. Ramaswami Ayyangar relied on Condition 17 which runs thus:

In the case of any dispute arising about the conduct of the sale or interpretation of the rules, the decision of the District Forest Officer shall be final.

Such provisions regarding finality of the decisions of executive officers have always been understood to refer to the proceedings before the officer. Such a provision cannot take away the jurisdiction of this Court under Article 226 of the Constitution to quash a decision of a District Forest Officer if it is based on a manifest error of law or the decision has the effect of the officer exercising a, jurisdiction which is not vested in him. Mr. Ramaswami Ayyangar also referred us to Condition 16 which says that the District Forest Officer or the officer conducting the sale reserved to himself the right to allow or debar anyone from bidding at the sales. But certainly this does not contemplate the District Forest Officer to exercise the right to as to prevent a bidder from continuing to bid at an auction at which he was allowed to bid, at a later stage in the progress of the auction.

12. On this ground the appellant is entitled to relief. He has been prevented from partaking further in the auction by a manifest error in the interpretation of Condition 3(f). The action of the District Forest Officer cannot also be supported because there is no power in the District Forest Officer to prevent a bidder from continuing to bid after a particular figure has been reached.

13. We are also of the opinion that having regard to the form of the certificate required, it would not be necessary for a bidder who professes to be not a dealer at all and, therefore; not liable to any tax under the General Sales Tax Act to produce such, a certificate. It is true that a declaration by a bidder will not be the final word in the matter. If it afterwards turns out that the highest bidder is a dealer liable to pay sales-tax, then even if his bid is highest, his bid would not be accepted. This does not mean however that any bidder can in the middle of the auction be prevented from further partaking in the auction. It is not necessary to point out the several anomalies in insisting upon a person who is not a dealer producing a sales-tax clearance certificate in the form contained in the notification.

14. In the result we allow the appeal. The prayer in the appellant's petition stops with directing the District Forest Officer not to take further steps to confirm the sale in favour of the second respondent. A mandamus merely confined to that relief would be of no avail to anyone. It would only mean that the sale in favour of the second respondent would not be confirmed. It is therefore necessary to also give a direction to the District Forest Officer to proceed to conduct a fresh auction after due notice. Such a direction will be incorporated in the order of this Court.

15. In conclusion we only wish to say that we are in entire agreement with the following observations of Rajagopala Ayyangar, J.:

I would urge upon Government the desirability of having the conditions of sale properly scrutinised and drafted so as to make them intelligible and consistent.

16. There will be no order as to costs.


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