GH MOHD BABA Vs. STATE OF J&K

JUDGEMENT

(1.) DEPUTY Director Horticulture Central. Srinagar issued a short term tender notice on 31 -05 -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 01 -06 -2001 (Annexure -R2 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 lacs vide letter dated: 04 -12 -2001 (Annexure -P4). The amount is requested to be covered 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 Bulgarian Project is rich and in abundance and is being provided technological inputs including Drip Irrigation Technology. At 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.

(2.) 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 requirement 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 bid for usufruct/fruit of 2001 year, due to technical defects and the turmoil conditions in the valley. Therefore, the petitionerâ„¢s claim of having been mislead and cheated is wholly untrue statement made with the malafide intentions of not paying the balance auction bid amount to the State Government. There has been no fault or slackness or in -action 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 atone is to be blamed for the slackness. The department is not responsible in any way. Petitioner, contractor even failed to adhere to payments schedule on the part of the petitioner detailed and in the reply and pointedly in Para 6 and 7, are stated to be the unfolding details to show that the petitioner has malafide intention and does not want to pay the 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 purchases of fruit crop and usufruct of Zakura orchard and Zainapora farm. The bid offered and consideration for contract of the said Government orchard and farm. Is Rs.17.52,200/ - and in terms of the executed Agreement/contract (Annexure -R2 with the objections) the amount is to be paid in three specified installments on specified dates ending 31 -08 -2001.

(3.) 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 Managemental 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 petitionerâ„¢s conduct of not making the stipulated payment as per agreement and bouncing of cheque issued by petitioner when presented for encashment at J&K Bank, Air Cargo Branch Srinagar, the fruit having been picked, stored etc., without payments and petitionerâ„¢s alleged malafides not to pay the entire bid amount, has some basis, even though parties are contesting it as a contentious issue.