The State of Assam vs Kunja Kishore Singha

J.M. Srivastava, J.—This appeal by the State of Assam is directed against the judgment and decree dated 13.7.83 passed by the learned Assistant District Judge No. 1, Cachar at Silchar, whereby the appeal by the State (Defendant in the suit) against the judgment and decree dated 12.2.82 passed by the learned Munsiff No. 1. Hailakandi, was dismissed.

The Plaintiff Respondent bad offered bid of Rs. 29,000/- for sale of Galacherra PWD Ferry at an auction held on 27.4.73 for 1973-74. The bid was accepted. The Plaintiff was required to deposit 1/4th of the bid money within three days. The Plaintiff failed to make the deposit, whereupon a fresh auction was held and the highest bid thereat was Rs. 23,100/-, at which the ferry was settled with Anr. person. The Plaintiff was required to pay a sum of Rs. 5192.20 P. as loss sustained by the Government on account of the Plaintiff�s failure to deposit the bid money. The Plaintiff did not make the payment where upon a Bakijai Case was started against him. The Plaintiff thereupon filed the suit for declaration that the Bikijai case was illegal and also for injunction to restrain the Defendant from recovery of the amount. The Defendant the present Appellant contested the suit and Pleaded that the State had suffered loss on account of the Plaintiff''s failure to abide by the terms of auction at which his bid Was accepted, and consequently the Plaintiff was liable for compensation to the State. The Bakijai case was correctly started in pursuance of the provisions of the Public Damands Recovery Act, and that the suit was liable to be dismissed.

The learned trial court had framed issues, and held that the claim for compensation by the Defendant was erroneous, that the Plaintiff was not liable to make any payment and that the suit was not barred by the provisions of Specific Relief Act. The suit was accordingly decreed. The learned appellate court below affirmed the findings of the learned trial court add dismissed the Defendant�s appeal.

Aggrieved, the State has come in appeal and Sri K.K. Mahanta, learned Counsel appearing on its behalf, submitted that he suit was barred by the provisions of Section 34 of the Public Demand Recovery Act and also by Section 34 of the Northero India Ferries Act, 1978 Shri Mahanta has also submitted that the State had sustained loss because the Plaintiff even after his bid had been accepted had not deposited the kist money and since the State had suffered (sic) for the period until the ferry was settled afresh, the Plaintiff was liable for the loss.

Sri Noormohammad, learned Counsel for the Respondent Plaintiff, has retailed the submissions for the Appellant and has contended that the Government did not sustain any loss at all on the contrary the government had received higher bid find hence the question of loss did not arise and there could be no justifiable demand and consequently there could be no public demand as such, as could be recovered in bakijai proceeding. The suit was therefore, rightly decided by the learned courts below.

I have considered the submissions for the parties.

Ext. 1 was the auction sale notice which clearly stipulated that a person whose bid was accepted at the auction held could be liable for the loss when at the fresh auction the bid received was less than that of the person at the first auction. In the present case, the admitted fact was that while the Plaintiffs bid at the auction was Re. 20,000/- the bid at the subsequent auction at which the ferry was settled, was Rs. 23,100/- It should be clear that the State had not sustained any loss as such on the failure of the Plaintiff to abide by the acceptance of his bid at the earlier auction, in terms of Ext. 1 the auction notice.

Sri Mahanta learned Counsel for the Appellant, has submitted Hut during the period until the ferry was settled afresh the government had incurred loss. The submission was not borne out by any evidence. On the contrary there was evidence that the government itself had run the ferry during the period and had spent a sum of Rs. 5277. 43 p. in running the ferry and had earned revenue of Rs. 4918.50 p. out of the said operation and as such the government had hardly suffered any loss. Moreover, Ext. 1 the auction sale notice on which reliance hat been placed did not contemplate any such loss for which a person who had offered bid Could be held liable, the findings of the courts below are therefore, sound and correct that the state had not suffered any loss because of the Plaintiff�s failure to abide by acceptance of his bid at the said auction.

Once it was shown that the government had not sustained any loss, in my opinion, there could not be any question of any demand so as to be recoverable Under the Public Demands Recovery Act, 1913. "Public demand" as defined in Section 3(6) of the Bengal Public Demands Recovery Act, 1913 means any arrear or money mentioned or referred to in Schedule 1 and includes any interest which may, by law be chargeable thereon up to the date on which a certificate is signed under Part II. There are 13 items in Schedule 1, I have perused such one of them and do not find any one in Schedule 1 of the said Act as may be considered applicable or attracted on the claim made by the State in the present case. Besides as said before the State not having sustained any loss there could not be any demand and consequently no public demand In my opinion, therefore, the provision of Section 34 of the said Act to which reference has been made was not attracted. The learned Counsel for the Appellant has also referred to Section 34 of the Northern India Ferries Act, 1978, which provides, "No suit to ascertain the amount of any compensation payable or abatement of rent allowable, under this Act shall be cognisable by any Civil Court." This provision is clearly not attracted to the present case. The suit was for declaration that the Bakijai case instituted against the Plaintiff was illegal. It was not a suit for determination of the amount of compensation payable or abatement of rent allowable. The suit was therefore, not barred by said Section 34.

For the aforesaid reasons this appeal fails and is dismissed no costs.