Gh. Mohd. Baba vs State of Jammu & Kashmir and Others

Syed Bashir-ud-Din, Judge

Deputy Director Horticulture Central, Srinagar issued a short term tender notice on 31-5-2001 inviting tenders for the sale of fruit crop and

green grass of Zakura Orchard (Srinagar District) and Zainapora Farm (Pulwama District). Petitioner, a fruit merchant competed and offered

tender. His bid for Rs. 17.52,200.00 was accepted. The parties have drawn and executed an agreement On 11-6-2001 (Annexure-Rs) to reply).

As the petitioner failed to make the whole payment as stipulated, the respondents approached Tehsildar Recoveries Srinagar for recovery of

outstanding amount of Rs. 8.27 lac's vide letter dated 4-12-2001 (Annexure-Pa). The amount is requested to be recover as arrears of Land

revenue. Petitioner has challenged this letter and the respondents very act of taking proceedings to recover the above outstanding amount. The

main plea taken is that the petitioner has been misled by the representation of the respondents that the fruit in the Orchard covered by India

Balgarian Project is rich and in abundance and is being provided technological in puts including Drip Irrigation Technology. As that moment (time

of auction) he was not made aware of the failure of the system. He was equally obstructed to lift the fruit. Petitioner has not been heard in the

matter of the letter for recovery of the amount, as land revenue, which has been sent to the Tehsildar Recovery Srinagar. Even, enquiry is prayed in

the matter and after setting the things right, fruit orchard is prayed to be handed over to petitioner.

Respondents have filed reply affidavit/objections on affidavit. The petitioner, a fruit trader is stated to have offered the bid on realistically

assessing the fruit variety at the relevant time not only on the statement of experts of the Farm Zainapora, Annexure-P2, but even on spot

inspections conducted by petitioner in the Company of experts and Orchardists of his choice. The voluntary offer of the petitioner was accepted by

the Auctioned Committee of the Horticulture Department. At the relevant time petitioner was even shown how the water requirements of the trees

were met from the natural water source through powerful diesel and electric generators storing water in 5 water reservoirs with the capacity of lacs

of gallons of water and its distribution to various corners of the farm through fire fighting canvas and under ground pipes. He was even told that the

Drip Irrigation System has failed four years back, at the time of bind of unsufruct/fruit of 2001 years, due to technical defects and the turmoil

conditions in the valley. Therefore, the petitioners claim of having been mislead and cheated is wholly untrue statement made with the malafide

intention of not paying the balance auction bid amount to the State Government. There has been no fault or slackness or inaction on the part of the

Horticulture Department in managing the orchard and farm. Every facility has been provided to petitioner to pluck, collect and transport the fruit.

The responsibility for delay and slackness in plucking, collecting, picking, storing and transporting the fruit, lies squarely on the petitioner and he

alone is to be blamed for the slackness. The department is not responsible in any way. Petitioner, contractor even failed to adhere to payments

schedule as per contract. The acts of omission and commission on the part of the petitioner detailed out in the reply and pointedly in paras 6 and 7,

are stated to be the unfolding details to show that the petitioner has malafide intention and does not want to pay them balance amount. To keep this

money, petitioner is deliberately fabricating the story. The boggy of enquiry too is raised with malafide intention not to part with balance payable

amount, under recovery. It is obvious that parties have entered into agreement after petitioner was a successful bidder for purchase of fruit crop

and usufruct of Zakura orchard and Zainapora farm. The bid offered and consideration for contract of the said Government orchard and form, is

Rs. 17,52,200/- and in terms of the executed greennet/contract (Annexure- R2 with the objections) the amount is to be paid in three specified

instalments on specified dates ending 31-8-2001.

The agreement in terms of clause 18 and 19 provides that all dues shall be recoverable as arrears of land revenue and if any dispute arises

between the parties, the matter would be referred to the named Arbitrator. This apart the factual premises-on which relief is based in the petition,

are disputed and denied one by one in the objections. Withholding of information from petitioner on non-functional Drip Irrigation Technology and

other adverse Management aspects, are equally stoutly refuted. The statement of account with regard to outstanding for which request is made to

the Tehsildar Recovery as per terms and conditions as given in para 7 of the reply/objections is stated to be fully within the knowledge of the

petitioner. He is stated to have not been prejudiced. The facts and circumstances, point to petitioner's conduct of not making the stipulated

payment as per agreement and bouncing of cheque issued by petitioner when presented for encashment J&K Bank, Air Cargo Branch Srinagar, -

the fruit having been picked, Stored etc. without payments & fruit petitioner's alleged malafidies not to pay the entire bid amount, has some basis,

even though parties are contesting it as a contentious issue.

It is obvious that apart from the alternative remedy available to the petitioner, disputed questions of fact are raised. Besides, an attempt is made

to get the private rights falling within the realm of contract decided in Writ jurisdiction. The contentious issue are raised. The alleged violation of the

rights of the petitioner and cause of action for the petition need to be determined on enquiry, which cannot be done in the present proceedings.

In Larsen and Toubro Limited Vs. Maharashtra State Electricity Board and others, , it is observed: -

The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers

exercising public functions within the limits of their jurisdiction, Any duty or obligation falling upon a public servant out of a contract entered into by

him as such public servant cannot be enforced by the machinery of a writ under Article 226 of the Constitution. (See also AIR SC: 2149.

In result, in the view taken in the facts and circumstances of the case, writ petition is dismissed in limine.