ALLAHABAD HIGH COURT

                                        Nanak Singh

                                              Vs.

                                         State of U.P

                      Civil Misc. Writ Petition No. 3837 of 1977

                          (K.C. Agarwal and D.S. Bajpai, JJ.)

                                         30.01.1986

                                        JUDGMENT

K.C. Agarwal, J.

1. Nanak Singh Petitioner has filed this writ petition for mandamus directing the
Respondents not to realize the sum of Rs. 45,631.30 as arrears of land revenue
from the Petitioner.
2. The facts briefly are that the Petitioner on an auction held on 18.01.1970,
offered a bid for plot No. 100 situate in Kilpura Uogari Range Forest at the rate
of Rs. 430/- per hectare. The Petitioner being the highest bidder, his bid was
accepted. Subsequently, the bid was approved by the Conservator of Forest and
an agreement was executed between the Petitioner and the State of U.P. Under
the agreement the Petitioner was required to pay the amount due under the
auction by installments. The Petitioner, in spite of the repeated notices and the
expiry of the period given to him did not deposit first installment of Rs. 14,334/-
which was due on 15th October, 1970, nor harrowed the whole area as per
condition 15. In view of this, the office cancelled the lease auctioned in favors
of the Petitioner. Subsequently the Petitioner made an application dated 5th
January, 1971, wherein he mentioned that he could not deposit the first
installment on account of personal reasons. He deposited Rs. 2000/- on the
same date and promised to deposit the remaining at an early date. On this
application, the Divisional Forest Officer cancelled the earlier cancellation order
for reduction. The Petitioner, however, did not deposit any further amount, as a
result he was given a letter on 18th May, 71 calling upon him to deposit both
first and second installment. He was warned that on failure, his plot would be
cancelled. The Petitioner did not pay any heed to this letter. Due to the failure
Rs. 45,631-30 has become due as against him. Consequently, the realization of
this amount as per term of the contract and condition No. ten started as an arrear
of land revenue. Under condition No. 10 of the agreement the Petitioner had
agreed that in the event of his failure it would be recovered as land revenue.
Apart from this, the amount could be recovered under U.P. Public Rent
Recovery Act. The Petitioner continued to occupy the disputed plot up to the
full term as his lease was not cancelled.

3. The argument of the counsel for the Petitioner that the amount could not be
recovered as an arrears of land revenue as the nature of the recovery was that of
damages is not correct.

4. There was a controversy in between the parties whether the land was
reauctioned or not We are satisfied from the counter affidavit that the reduction
did not take place. However, in view of the admitted position that the land was
not reauctioned, the contract between the State and the Petitioner did not come
to an end. They continued to be the same as they emerged out of the auction
held on 18.01.1970. In case, the auction would have taken place, the recovery
of the shortfall could be in the nature of the damages. However, as this question
does not directly arise in this case, we do not wish to express any concluded
opinion on this. On the date fixed, the Petitioner's own case (which is not
admitted to the contesting Respondent) is that the auction did not take place. As
a result, the money which was due from the Petitioner continued to be "price".
It did 'not get converted into damages for the recovery of the price, apart from
anything else. Section 82 of the Forest Act would be applicable. Under it, price
unpaid would be recoverable as an arrear of land revenue.

5. Reliance has been strongly placed by the Petitioner's counsel on a decision of
Division Bench in the case of Virendra Kumar v. State of U.P., 1 of the said
ruling, which is relied upon as under: In the case of recovery of deficit, the basis
is that the contractor was liable to make up the loss incurred by the State whist
was occasioned by reselling the Forest produce. A case of that nature falls
Under Section 54(4) of the Sale of Goods Act (1930). Inasmuch as after the
cancellation of sale the relationship between the State and the Contractor ceased
to be that of a seller and buyer. There was no existing sale, and, therefore no
price was due.
6. The facts of the case were distinguishable. In that Case, forest had been
resold and it fetched the price less than the amount payable by the contractor of
that case. The Court held that the nature of the shortfall was damages In the
instant case, there was no question of shortfall, as the land had not been put to
re-sale what was being recovered from the Petitioner was unpaid price.

7. We do not agree with the Petitioner's counsel that since auction has been
cancelled on 01.01.1971, the Petitioner ceased to under any contractual
obligation to pay the price. We have noted the Recovery Act relating to this
question above. From those facts, it would be found that the order cancelling the
contract was recalled on 05.01.1971. Consequently, the nature of liability to pay
the balance accrued against the Petitioner did not change.

8. In the result, the petition fails and is dismissed. The stay order dated
01.01.1971 is discharged.

Petition dismissed.

Cases Referred.

1. AIR 1980 Alld. 100 paragraph 17