REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6274 OF 2008

[Arising out of SLP (Civil) No. 24242 of 2005]

M/s. Karnataka State Forest Industries Corporation …Appellant

Versus

M/s. Indian Rocks …Respondent

WITH

CIVIL APPEAL NO. 6275 OF 2008

[Arising out of SLP (Civil) No. 23148 of 2005]

M/s. Karnataka State Forest Industries Corporation …

Appellant

Versus

State of Karnataka and others … Respondents

J U D G M E N T

S.B. SINHA, J :

1. Leave granted.

2.These two appeals involving similar questions of law and fact were

taken up for hearing together and are being disposed of by this common

judgment. We may, however notice the fact of the matters involving in both

the appeals separately.

Civil Appeal arising out of SLP © No. 24242 of 2005

3.Appellant is a Government of Karnataka Undertaking engaged in sale

of granite of seized and confiscated granite blocks to persons who intend to

purchase in the Tender-cum-Allotment sale on “as is where is basis”. The

relevant terms of the said tender were:

“6.The tender/bidder should make arrangements to

obtain transit permit at his own cost from Forest

Department/KSFIC.

9.The successful Tenderer/Bidder should pay 1/10

th

amount of the sale value plus taxes as follows:-

(a)Un-polished Granite Blocks 10% S.T.

(b)Sur-charge on S.T. 15%

(c)Forest Development Tax 5%

(d)Income Tax 15%

(e)Surcharge on I.Tax 5%

On the same day, the balance amount will be

payable as follows:

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(a)50% within 15 days of the intimation of

confirmation of tender.

(b)the remaining amount shall be paid by the

end of the June, 1995 or before the stones

are lifted whichever is earlier. The period

of the contract shall be upto April, 30

th

1995.

11.In case of breach of any of the conditions

mentioned above, the Managing Director, KSFIC

Ltd., is at liberty to cancel the Tender/Bid amount

and make materials at the risk and cost of the

original Tenderer/Bidder and the EMD/Security

Deposit furnished by the Tenderer/Bidder be

forfeited. If the K.S.F.I.C. incurs any extra

expenditure in this regard the same will be

recoverable from the original Tenderer/Bidder.

18.The successful Tenderer/Bidder shall make their

own arrangements for inspection of seized and

confiscated Granite blocks at their own cost

located at different places in the Ranges as the

offer for sale is on. AS IS WHERE IS BASIS.

Rejection due to colour, cracks etc. will not be

entertained once the offer is submitted.

19.Sale of granite blocks is agreed upon in good faith

and K.S.F.I.C. Ltd. shall not be liable for any

damages or otherwise for failure to carryout the

obligation which may be occasioned by Act of

God, War, Civil Disturbance disorders, strike etc.,

or regulation of Government authorities or

agencies or similar circumstances beyond its

control.

20.Breach of any of the conditions specified supra, by

the purchaser will entail forfeiture to K.S.F.I.C. of

all deposits paid by him. Further, the Granite

Blocks already paid for and lying in the field will

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also be liable to be attached towards the balance

due. The Granite Blocks purchased, whether paid

or not will also be resold at the risk and cost of the

original Tenderer/Bidder who will be liable to

make good to Government any loss arising out of

such resale but shall not be entitled to profits.

34.No material shall be removed from the contract

area unless it is covered by transit pass in

accordance with the rules under Section 50 of the

Karnataka Forest Act, 1963. If any problems arise

while lifting the blocks from site, necessary

assistance will be provided if need be under

special circumstances.”

4.Respondent participated in the tender process. It was successful in

purchase of:

(i)one lot containing 25 blocks (Mulegundi Area),

(ii)one lot containing 37 blocks (Mulegundi Area) and

(iii)one lot containing 43 blocks (Nehrudoddi Area).

5.The total sale value of the granite sold to the respondent herein was

Rs. 21,24,574.85. Out of the aforementioned sum, admittedly, the

respondent on or about 11.07.1995 had deposited a sum of Rs.

11,84,447.90. The balance amount due to the appellant from the respondent

was Rs. 9,40,126.55. In terms of the said tender, the respondent was

required to pay not only 10% of the value of the goods but also taxes and

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other statutory dues paid by the appellant herein. Appellant has paid an

amount of Rs.6,85,642/- being the royalty amount, Forest Development Tax,

Karnataka Sales Tax and Surcharge on Karnataka Sales Tax etc.

6.Respondent allegedly refused to pay the amount to which it was said

to be otherwise liable in terms of Clause 8 of the terms and conditions of the

tender.

7.There appears to be a dispute as regards the amount payable by the

respondent on the aforementioned account insofar as whereas according to

the appellant the amount of granite including tax and other statutory

liabilities in respect of 10 blocks of granite which had been received by the

respondent and transported by it is Rs. 3,25,193.90; according to the

respondent, the total amount of goods received was Rs. 2,39,969.35.

Appellant contended that the contract was not concluded within the

stipulated period of time as the entire payment was not made by June, 1995

or before lifting of the stones whichever is earlier, as envisaged under

Clause 9(b) of the terms and conditions of the tender.

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8.Concededly the Government of Karnataka was approached. A

question was also raised in the Legislative Assembly. The Principal

Secretary, Forest, Ecology and Environment Department, Government of

Karanataka issued a letter on or about 16.01.1996, which reads as under:

“Sub:Permission to Karnataka State Forest

Industries Corporation Ltd., for the sale of

Confiscated Granite Block through Tender.

With reference to the above subject, a copy

of the Letter dated 14.12.1995 received from the

Chairman & Managing Director, KSFIC Ltd., is

here with enclosed. The KSFIC Ltd., has sold the

Granite Blocks which were seized by the Forest

Department, through public auction during the

month of March 1995. Since the Granite scandal

is under enquiry of Legislative Committee, it was

decided not to confirm the said sale proceedings.

In the meanwhile the Chairman & Managing

Director of the Corporation reported to the

Government that the purchasers are pressurizing

for issue of transit permit to lift the Granite Blocks

or refund their amount. They also requested the

Government to bring these facts to the notice of

the Legislative Committee.

Since the Joint Legislative Committee has

objected for issue of transit permit by the Forest

Department and also KSFIC Ltd., to granite blocks

as there was no provision for the same in the

KMMC Rules, 1994, the Government has

suggested to the KSFIC Ltd., to take action with

regard to transfer the Granite blocks to the

Department of Mines and Geology and for refund

of amount to the bidders (copy enclosed). But,

directed to keep the Granite blocks in safe custody

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till the decision of the Joint Legislative

Committee.

I have been directed to bring the contents of

the Corporation letter and the Government

suggestion to the Corporation thereon, to the

notice of the Joint legislative Committee.”

9.However, as there exists a dispute with regard to its correct

translation, we may also notice the text of the said letter from the judgment

of the learned Single Judge, which reads as under:

“In between this, the President and Managing

Director of the Corporation reported to the

Government that the purchasers are insisting on

the Corporation to issue permit for transportation

of granite and also to refund the amount received

from them. The Corporation has also prayed for

bringing the said matter to the notice of the Joint

House Committee.

Since the Joint House Committee has objected the

issue of permits by the Forest Department as well

as by the Corporation and since there is no

provision for the same in K.M.M.C. Rules, 1994,

Government has directed the Corporation to take

appropriate action for transferring the granite

blocks which are under its custody to the

Department of Mines and Geology and also to

return the amount (liable to be refunded) to the

concerned bidders, which is already collected from

them. But, it has further directed to preserve the

granite stones safely till the decision of the Joint

House Committee.”

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10. It is, however, stated that the appellant did not agree to the

aforementioned suggestions/direction of the State and responded thereto

stating that it was not feasible to refund the sale price. It had been stated

that necessary permit should be directed to be issued in this behalf. By its

letter dated 2.12.1996, appellant requested the respondent to remit the

balance amount, stating:

“You are requested to remit the balance amount of

the total purchase value of the Granite Blocks

purchased by you in the auction sale conducted by

the KSFIC Ltd. during the Month of March –

1995.”

11.However, the said request was not acceded to. Appellant allegedly

issued various other letters to the same effect on 29.01.1997, 25.04.1997

and 30.06.1997. Ultimately by its letter dated 5.06.1999, the appellant

informed the respondent to immediately remit the amount and lift the

granite blocks by 30.06.1999 failing which, it was threatened, the amount

deposited shall be forfeited, stating:

“We therefore request you to kindly make

immediate arrangements for remitting balance

amount and lift the granite blocks purchased by

you in Tender-cum-Auction-Sale held during the

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month of March-1995 within 30

th

June 1999

without any further delay. If we do not hear

anything from your side within the time stipulated,

action will be initiated to forfeit all deposit amount

paid by you as per clause (11), (16) and (20) of the

Tender Conditions, which may please be noted.”

12. Respondent filed a writ petition, which was marked as Writ Petition

No. 27456 of 1999. It is not in dispute that those permits were not granted

in favour of the respondents. Respondents in their writ petition while

contending that the agency of the appellant was terminated, stated :-

“8.It is humbly submitted that the petitioner

has paid sum of Rs.11,84,447.90 towards the cost

of granite blocks. The petitioner after paying the

huge amount of Rs.11,84,447.90 requested the

Respondent to obtain the mineral dispatch permit

from the Department of Mines and Geology for

transporting the granite blocks. After receipt of

the money the Respondent did not pursue the

matter in obtaining the mineral dispatch permits

from the department of transport the granite

blocks. The effort of the petitioner to convince the

Respondent to obtain the mineral dispatch permit

did not yield and result and the Respondent failed

to obtain the mineral dispatch permits in terms of

Rule 42 of the Rules.

9.It is humbly submitted that the Respondent

Corporation appointed the Jadhav, Range Forest

Officer to issue the permits. The said Range

Forest Officer has issued permits which are termed

as fake permits. Several persons appear to have

transported the granite blocks on those fake

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permits. Under those circumstances the Karnataka

Legislative Assembly constituted Committee of

legislators to go into the question of fake permits

issued by the said Jadhav. It may also be relevant

to mention that the criminal case was filed against

various persons and the matter was handed over to

the COD of Police for investigation. It is also

relevant to mention that both the houses of the

legislature was rocked by the fake permits scandal.

10.It is humbly submitted that the Legislative

Committee which was appointed for the purpose

of looking into the fake permits has took (sic) a

decision that the entrustment of selling of the

seized and confiscated granite blocks in favour of

the Respondent Corporation should be dispensed

forthwith thereby terminating the agency given to

the Respondent. The Government on the

instructions of the Legislators Committee

cancelled the agency that was given to the

Respondent and instructed the forest corporation

to return the granite blocks to the department of

Mines and Geology (sic) is the owner of those

Granite blocks. Only for the purpose of selling

those granite blocks it was entrusted to the

Respondent Corporation. The Corporation ceased

to have its power or jurisdiction to continue to sell

the granite blocks with effect from 16.01.1996.

The true copy of the Government Notification

dated 16.01.1996 is produced herewith as

ANNEXURE-C.”

In the aforementioned premise, it was inter alia prayed :-

b)ISSUE an order, direction or writ in the

nature of Mandamus, directing the Respondents to

implement the Government Order Annexure–C

dated 16.01.1996.

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c)ISSUE an order, direction or in the nature of

mandamus, directing the Respondents to refund

sum of Rs.9,44,478.55 together with interest

calculated at 18% in terms of the Government

order dated 16.01.1996 Annexure-C.”

13.Appellant filed its counter-affidavit in the said writ petition.

14.It also filed an additional affidavit, stating:

“10.It is relevant to submit here that the

petitioner should have completed the entire tender

cum auction transaction by the end of 15

th

July

1995 by making payment of taking delivery of the

entire granite blocks purchased as per Respondent

letter dated 26.06.1995 at ANNEXURE R14.

However, the petitioner delayed the same. In fact,

the petitioner should have completed all these

transactions before the issue of Government letter

dated 16.01.1996 at Annexure-C. The Respondent

cannot be blamed for failure and delay of the

petitioner in not completing the transaction before

the Government letter dated 16.01.1996. In fact,

the petitioner in letter dated 19.04.1997 expressed

willingness to take the granite as per

ANNEXURE-R15. Then Respondent sent a letter

dated 28.4.1997 as per ANNEXURE-R16 to the

Deputy Conservator of Forest. Inspite of reminder

dated 30.06.1997 as per ANNEXURE-R17 the

petitioner has not complied with the directions in

payment of the balance amount. This Respondent

is entitled to forfeit the entire amount as per clause

….illegible ….. the tender for failure of the

petitioner in not paying amount and taking

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delivery of the goods within the stipulated time.

Therefore, the petitioner cannot blame this

Respondent.

11.Inspite of all this, and without prejudice to

the various contentions, the Respondent humbly

submits that, if the petitioner pays the balance

amount of Rs.9,40,426.55 and penalty

immediately as per conditions of sale, this

Respondent is ready and willing to complete the

sale transactions by obtaining necessary permits

from the concerned authorities as is being done in

the case of other bidders who have paid full value

after 16.1.1996 Annexure-C.

15,A learned Single Judge of the High Court by its order dated

19.02.2001 allowed the writ petition directing the appellant – Corporation

to refund a sum of Rs. 3,75,905.35 with interest from the date of issuance of

the letter, stating :

“8.In view of terms of Auction notice, if the

balance amount of the sale considerations is not

paid, the sale could not have been confirmed and a

forfeiture would have resulted. The forfeiture

would have been unconditional but for the

intervention of Annexure C, where the owner of

goods sold, called upon the agent to refund the

excess amount. The agent has to abide by the

instructions of the Principal. He has to deal with

the estate of his principal as he commands.

9.A perusal of Annexure H shows that the

Respondent has collected whatever tax is due

under the sale and prima facie there is no scope for

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fresh demand. Besides, the petitioner cannot also

dispute its liability to pay the stipulated tax, it

being a condition of sale. In these circumstances,

there is a no justification in the demand made by

the Respondent in Annexure H. In such

circumstances, Annexure H is quashed. There will

be direction to the Respondent to refund the

amount, a sum of Rs.3,75,905.35 with the interest

from the date of Annexure C. The right of the

Respondent to claim any damage sustained from

its principal is left open. W.P. is disposed of.”

16.A writ appeal preferred thereagainst by the appellant has been

dismissed by reason of the impugned judgment.

Civil Appeal arising out of SLP (C) No. 23148 of 2005

17.Respondent No.3, on 6

th

March, 1995, participated in the tender-cum-

auction sale and was a successful bidder in respect of 3 lots of granite

containing 75 granite blocks. It again participated in the tender auction on

14

th

March, 1995 and was declared successful in respect of 41 granite

blocks. The total sale value of the granites purchased by respondent No.3,

according to the appellant, was Rs.21,91,234.60 ps. Out of said amount, it

deposited a sum of Rs.11,47,149.77. The sale price included various

taxes/royalty.

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18.Appellant released 31 granite blocks of the value of Rs.5,92,556.57

ps. Vide its letter dated 28

th

June, 1995 appellant requested the respondent

No.3 to lift the remaining granite blocks after remitting 100% of the total

purchase value plus taxes on or before 15

th

July, 1995 failing which the

amount already deposited was threatened to be forfeited.

19.Respondent No.3 filed a writ petition before the Karnataka High

Court being Writ Petition No.25613 of 1996 praying inter alia for issuance

of direction to issue permits for lifting the granite blocks. Appellant did not

object to the release of the granite blocks towards which payments had

already been made. While issuing Rule on 19

th

September, 1996 the High

Court gave an interim direction which reads as under :-

“There shall be an interim direction to

Respondents 4 and 5 to issue Mineral Despatch

Permits to Petitioner for transporting the granite

block purchased by the Petitioner from first

Respondent and released by the first Respondent,

without requiring payment of any royalty

charges.”

20Vide its letter dated 3

rd

October, 1996 and 29

th

November, 1996, the

appellant requested the respondent No.3 to remit the balance amount and lift

the granite blocks purchased by it. However, no transit permit was issued.

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21.Third respondent was not prepared to pay the balance of amount to

get the granite blocks released and once again requested the appellant to

refund the balance amount deposited by it.

22.Another writ petition being W.P. (C) No. 7611 of 1997 was filed by

respondent No.3 to refund the payment made by it amounting to

Rs.5,54,593/- with interest and further not to insist for making payment of

balance bid amount.

23.However, the High Court by its judgment dated 21

st

October, 1997

directed :-

“13.For the reasons stated, the relief sought for

by the petitioner company in this writ petition

cannot be granted by this Court. The only relief

that can be granted to the petitioner-company is to

direct the respondent Corporation to consider the

request that may be made by the petitioner –

Company for refund of a sum of Rs.1,51,594.06

ps., if terms and conditions of tender-cum-auction

sale notification permits for such refund within

two months from the date of request that may be

made by the petitioner company and secondly, if

the petitioner company deposits the balance of sale

consideration for purchase of granite blocks, the

respondent-corporation is directed to lift the

balance or rough granite blocks which it had

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purchased in the auction sale without insisting on

the payment of interest on the balance of amounts

or for production of proof of payment of royalty

under KMMC Rules, 1994.”

The High Court also opined :-

“Pursuant to such confirmation of sale, Petitioner-

Company has already lifted granite blocks worth

Rs.4,40,562.50 ps. and the taxes paid in full on

the entire sale value has already been deposited

with the State and Central Government. Therefore

submits, the only amount that is remaining with

the third respondent- Corporation is a sum of

Rs.1,51,554.05 ps. The learned counsel further

submits that the third Respondent-Corporation is

prepared to refund the aforesaid amount, if the

Petitioner-Company so desires. “

24.Pursuant to or in furtherance thereof a representation for refund of

Rs.1,51,594.05 ps. was made. However, the appellant by its letter dated

15

th

November, 1999 rejected the said request. Aggrieved, the third

respondent filed a writ petition before the High Court which was numbered

as W.P. 45825 of 1999 praying inter alia for the following reliefs :-

“i)issue a writ of certiorari or any other writ

order or direction quashing the letter/order

bearing No. TEC-II/Sale/GNR/94-95/99-

2000 dated 15.11.1999 passed by the 3

rd

Respondent (Annexure-T).

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ii)issue a writ of mandamus or any other writ

order or direction directing the 3

rd

Respondent to refund a sum of

Rs.1,51,594.05 with interest @ 18% per

annum from the date of deposit till the date

of refund.

iii)issue a writ of mandamus or any other writ

order of direction directing the respondents

1 and 2 to refund a sum of Rs.95,088.60

deposited by the 3

rd

Respondent on account

of Forest Development Taxes on the

unreleased granite blocks.

iv)issue a writ of mandamus or any other writ

order or direction directing the Respondent

No.5 to refund the amount of

Rs.1,36,689.90 deposited by the 3

rd

Respondent on account of Sales Tax and

Surcharge on the unreleased granite blocks.

v)issue a writ of mandamus or any other writ

order or direction directing the Respondent

No. 6 to refund the sum of Rs.1,78,290.60

deposited by the 3

rd

Respondent on account

of Income Tax on the unreleased granite

blocks.

25.As regards further performance of the contract as well as release of

the amount, the appellant in its counter-affidavit before the High Court

stated:-

“8.IN REPLY TO PARA NO. 5: It is pertinent

to note that the prayer of the petitioner in the

earlier writ petition bearing No. 25613/96 there is

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no whisper of the claim of refund. Further there is

no prayer for refund of the granite blocks. When

the Petitioner has sought for a direction for the

issue of dispatch permits it is not now open to the

Petitioner to make the claim for refund. Further,

the submission made on behalf of this Respondent

that it has no objection to release the blocks

corresponding to the payment made cannot be

interpreted to mean that the granite blocks worth

Rs.5,54,593.22 should be released. It is pertinent

to note that even before the filing of the earlier

Writ Petition, the Petitioner had lifted 29 granite

blocks.

It is submitted that the application produced

at Annexure-G is not brought to the notice of this

respondent. It appears to have been rejected as the

Petitioner did not pay the balance consideration

towards 85 granite blocks and consequently as this

respondent also could not pay the same to the

fourth respondent.”

“11.IN REPLY TO PARA-8: Out of

Rs.11,47,149.32 paid by the petitioner a sum of

Rs.5,62,063.25 is towards the applicable taxes.

What remains is Rs.5,85,086.07 which is to be

adjusted towards the value of the granite blocks.

Out of this the Petitioner has already lifted

176.225 Cmt. of granite blocks in Yadamarahalli-

III worth Rs.4,40,562.50 ps. The remaining

amount is Rs.1,51,594.05. In the absence of any

indication by the petitioner, this amount cannot be

adjusted to any of the remaining lots. As the

petitioner has not indicated to which lot this

amount has to be adjusted, the question of

releasing the granite blocks corresponding to the

payment does not arise at all. It is incorrect to say

that the petitioner has deposited the necessary

amount without any lapses. The watch and warde

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and maintenance of the granite blocks purchased

by the petitioner in the auction is the responsibility

of the petitioner. As the terms and conditions of

tender notification do not provide for the refund of

the amount, petitioner’s request could not be

conceded to. Against the order, dated 19.8.1999

passed by the learned Single Judge in W.P. No.

7611/97, the petitioner filed W.A. No. 8250/99.

The petitioner withdrew this Appeal.”

26.A learned Single Judge of the High Court by his order dated 26

th

September, 2002 allowed the writ petition. While quashing the letter dated

15

th

November, 1999 directed to refund the moneys stated at Prayer Nos. 2,

3,4 and 5 of the petition.

Aggrieved, the appellant filed a writ appeal which was dismissed by

the impugned order.

27.Mr. Shyam Diwan, learned senior counsel appearing on behalf of the

appellant urged :-

(i)The purported order dated 16

th

January, 1996 contained in the

letter from the Principal Secretary to Government, Forest Ecology

& Environment Department and addressed to the Secretary,

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Karnataka Legislative Assembly, a copy whereof was sent to the

Chairman & Managing Director of the appellant-Corporation,

does not contain any direction which can be said to be binding on

the appellant and in that view of the mater, the impugned

judgment cannot be sustained.

(ii)For the purpose of issuance of a Writ of or in the nature of

mandamus it was obligatory on the part of the writ petitioner to

show the existence of a legal right in itself and a corresponding

legal duty in the respondent and in view of the fact that no such

legal right having been found to be existing in favour of

respondent, the impugned judgment is liable to be set aside.

(iii)The High Court could not have exercised its jurisdiction under

Article 226 to enforce a contract qua contract, particularly when

the same involved disputed questions of fact.

(iv)Respondents, being bound by the terms and conditions of tender,

could not have been given any relief in derogation thereof.

28.Mr. Vikas Rojipura, learned counsel appearing in Civil Appeal

arising out of SLP (C) No. 24242 of 2005 and Mr. P. Vishwanatha Shetty,

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learned senior counsel appearing in Civil Appeal arising out of SLP (C)

No.23148 of 2005 on the other hand, :-

(i)No disputed question of fact being involved in the Writ Petitions,

the High Court could exercise its discretionary jurisdiction even in

a matter governed by contract qua contract.

(ii)The action of the State in all situations including contractual

matters must be fair and keeping in view the fact that the appellant

had taken a wholly unfair stand, this court should not interfere

with the impugned judgment.

(iii)In any event, as in the appeal arising out of SLP © No. 23148 of

2005 the appellant itself agreed to refund a sum of Rs.1,51,554.05

it cannot be permitted to go back on its promise and refuse to

enforce the same particularly when the other respondents against

whom directions had been issued, including the State of Karnataka

and income tax authorities have accepted the judgment.

29.Indisputably the confiscated granite blocks belonged to the State of

Karnataka. They did not belong to the appellant-Corporation. Appellant

was merely appointed as an agent of the State. It is only in that capacity the

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tender was issued by it. We may notice that although in terms of the said

tender, the concerned respondents and others were bound to deposit the

price of the granite blocks as also the amount of tax payable thereunder ;

one of the essential conditions therefor, as quoted above, was issuance of

permits to transport the same.

30.Indisputably a part of the contract was completed. It is furthermore

not in dispute that some granite blocks were transported by using forged

transit permits. A huge scam was unearthed. Questions were raised in the

Assembly. A Committee was appointed. It is pursuant to the report of the

Committee that was appointed by the Karnataka Legislative Assembly that

the policy of the State changed. It terminated the agency of the appellant. It

was only while doing so, the directions contained in the said letter dated 16

th

January, 1996 were issued.

31.We agree with the contention of Mr. Divan that such a direction

which does not have any statutory force is not binding upon the appellant

but herein strictly we are not concerned with such an issue.

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32.Mr. Diwan relied on Bharat Sanchar Nigam Ltd. And another v.

BPL Mobile Cellular Ltd. and others, [ 2008 (8) SCALE 106 ] wherein it

has inter alia been held :-

“They might have been published by some

publisher but indisputably they are not statutory in

nature. They have not been framed under any

statute. The Indian Telegraph Act or the Rules

framed thereunder do not provide for issuance of

such circulars. The circular letters collected at one

place are loosely called rules. They, as noticed

hereinbefore, are meant for office use only. The

directions contained in the said circular letters are

relevant for the officers who are authorized not

only to grant licences but also enter into contracts

and prepare bills. The circular letters having no

statutory force undoubtedly would not govern the

contract. If some authorities have violated the

terms of the said circulars, they might have

committed misconduct, but when a contract is

entered into, the parties shall be bound thereby.”

It was furthermore observed :-

“25. In view of the aforementioned law laid down

by this Court, there cannot be any doubt

whatsoever that the circular letters cannot ipso

facto be given effect to unless they become part of

the contract. We will assume that some of the

respondents knew thereabout. We will assume that

in one of the meetings, they referred to the said

circulars. But, that would not mean that they are

bound thereby. Apart from the fact that a finding

of fact has been arrived at by the TDSAT that the

said circular letters were not within the knowledge

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of the respondents herein, even assuming that they

were so, they would not prevail over the public

documents which are the brochures, commercial

information and the tariffs.”

33.To the same effect are the observations made by this Court in M/s.

New Bihar Biri Leaves Co. and others v. State of Bihar and others,

[ (1981) 1 SCC 537 ], stating :-

“46. At the time of inviting Tenders in the

prescribed Form or inviting purchasers to bid at

the publication, all tenderers or bidders are treated

equally in the sense that they can offer their rates

or bids subject to the statutory conditions

including the impugned provisions. While

accepting the highest Tender of rates per standard

bag or the highest bid, it is not possible to classify

the purchasers whose offers/bids have been

accepted into 'honest' purchasers and 'dishonest'

purchasers. Everybody whose offer or bid is

accepted, is assumed to be honest.”

34.We are, however, concerned herein with a different situation.

Transport of granite blocks was subject to issuance of transit permits. Such

transit permits are granted in terms of the provisions of Rule 42 of the

Karnataka Minor Mineral Concession Rules, 1994.

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35.The question that arises for consideration is as to whether the State in

exercise of its power under Article 162 of the Constitution of India could

issue a binding direction so as to confer a legal right on a third party having

regard to cancellation of contract of agency by the State in favour of the

appellant ?.

36.The letter dated 16

th

January, 1996 is to be treated as a

communication from a Principal to an Agent. As an agent of the

Government of Karnataka, the appellant, which, itself is a ‘State’ within the

meaning of Article 12 of the Constitution of India, was bound to act

thereupon. It is true that it had responded to the aforesaid communication

of the State dated 16

th

January, 1996 stating its own reasons therefor. In its

letter dated 29

th

January, 1966 addressed to the Secretary, Forest Ecology

and Environment, it was stated :-

“The KSFIC Ltd. is facing financial crunch and

incurring heavy loss since 2-3 years due to decline

of day to day activities. It is very painful to say

that even there is no fund for payment of the

employees salary for the month of January 1996.

The Units of the KSFIC Ltd. at Mysore, Shimoga

and Dandeli are also facing same problems and

even they have not paid the salary of their

employees since last 2-3 months due to non

availability of funds. The subject was also

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25

discussed in the recently held Board meeting of

KSFIC on 19.12.1995 and the financial position

was made known to the Board Members. The

decision to take up granite trade by KSFIC was

taken only after thorough discussion in the Board

for nearly half a dozen times. The seized granite

blocks were auctioned by the Corporation with the

full knowledge of Government of Karnataka to the

Hon’ble Minister of Forests and the Forest

Development. In fact Forest Department gave the

full support for this activity. Moreover the Mines

and Minersals Department can dispose in the

public auction only those minerals which are

seized under sub-section (4) of 21 of the Act and

sub-rule (6) of 43 and minor Minerals left at the

quarry after expiry of termination of lease or

licences. In this instant case granite blocks are

seized under provision of Section 62 of Karnataka

Forest Act and this can be disposed off only under

Cchapter 12 of Karnataka Forest Rules, 1963.

Hence, we request you to kindly prevail upon the

Joint Legislative Committee and Mines and

Geology Department to issue necessary permits

for the remaining Blocks to KSFIC Ltd. as per the

rules in force. There is no alternative left for the

KSFIC Ltd. to make arrangement for issue of

transit permits through Mines and Geology

Department to the purchasers for lifting the

remaining blocks purchased by them in Tender

cum auction sale as the KSFIC Ltd. Is totally

unable to refund the deposit amount to the

purchasers in the circumstances explained above.”

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But there is nothing to show that the Government of Karnataka acted

thereupon or withdrawn its direction contained in its letter dated 16

th

January, 1996.

37.The plea which was raised, therefore, was not a legal plea but a plea

for show of compassion expressing its inability to refund the amount

because of financial constraints. Its response to the State was not based on

legal premise but it was based on its own difficulty. If the agency had been

terminated and had not been restored, we would not know under what

authority the appellant had been asking respondents to perform their part of

contract.

38.In any view of the matter there is nothing on the records to show that

the State of Karnataka and particularly the Joint Committee of the

Karnataka Legislative Assembly directed grant of transit permits for

transportation of granite blocks. If such permits had been granted, it might

have been obligatory on its part while issuing the notice upon the concerned

respondents to direct lifting of the remaining blocks of granites enclosing

therewith copies of the said permits, but in absence thereof, it is idle to

contend, on the one hand that the respondents were bound to perform their

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27

part of the contract and on the other that although they have asked for

supply of permits, as per rules, they did not obtain the same.

39.Appellant is also guilty of suppressio veri and suggestio falsi. Its

action in the entire matter appears to be wholly unfair. It was in a dominant

position in terms of the provisions of the contract but then in a case of this

nature when its authority to continue to deal with the granite blocks came to

be questioned, it was obligatory on its part to clear its position in this

behalf. We have no words to express our displeasure also in regard to the

conduct of the State. It did not take a positive stand. As a principal, the

State of Karnataka was also obligated to disclose the entire facts before the

High Court.

40.Although ordinarily a superior court in exercise of its writ jurisdiction

would not enforce the terms of a contract qua contract, it is trite that when

an action of the State is arbitrary or discriminatory and, thus, violative of

Article 14 of the Constitution of India, a writ petition would be

maintainable. ( See ABL International Ltd. v. Export Credit Guarantee

Corpn. of India Ltd. [ (2004) 3 SCC 553.

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28

41.There cannot be any doubt whatsoever that a writ of mandamus can

be issued only when there exists a legal right in the Writ Petition and a

corresponding legal duty on the part of the State, but then if any action on

the part of the State is wholly unfair or arbitrary, the superior courts are not

powerless. Reliance placed by Mr. Divan on G.J. Fernandez v. State of

Mysore and other, ( [1967] 3 SCR 636 ) is not apposite. In that case itself

it was held :-

“Thus under Art. 162 the State Government can

take executive action in all matters in which the

legislature of the State can pass laws. But Art. 162

itself does not confer any rule making power on

the State Government in the behalf.”

G.J. Fernandez (supra) was considered in ABL International Ltd.

(supra)

42.Furthermore the concession made by the counsel for appellants in the

earlier round of litigation also cannot be lost sight of. A specific concession

was made. It may be that no specific direction was issued by the High Court

therein, but the stand taken by it was clear and unequivocal.

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29

43.Mr. Shyam Divan, when questioned, had very fairly submitted that

the conduct of the counsel who had appeared on behalf of the appellant in

the earlier round of litigation is not in question and it cannot be said that he

acted beyond his authority.

44.If such a stand had taken in the earlier round of litigation we fail to

see any reason as to why the concession made by it should not be given

effect to. If a right has accrued to the respondents for maintaining a writ so

as to compel the State to give effect to an earlier order passed by the Court

as has been held by this Court in the case of Commissioner, Karnataka

Housing Board v. C. Muddaiah, [ (2007) 7 SCC 689, the same should not

be denied to respondent herein.

45.Keeping in view the facts and circumstances of the case in its entirety

and having regard to the legal propositions as noticed hereinbefore, we are

of the opinion that these are not the cases in which this Court should

exercise its discretionary jurisdiction under Article 136 of the Constitution

of India. The appeals are dismissed with costs. Counsel’s fee assessed at

Rs.50,000/- in each case.

…………………………

……J.

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30

( S.B. SINHA )

………………………………J.

( CYRIAC JOSEPH )

New Delhi

October 24, 2008

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2008

[Arising out of SLP (Civil) No. 24242 of 2005]

M/s. Karnataka State Forest Industries Corporation …Appellant

Versus

M/s. Indian Rocks …Respondent

WITH

CIVIL APPEAL NO. OF 2008

[Arising out of SLP (Civil) No. 23148 of 2005]

Dear Brother Cyriac Joseph,

Draft Judgment in the aforementioned matter is being sent herewith

for your perusal and kind consideration.

With kind regards,

[S.B. Sinha] J.

New Delhi;

September 15, 2008

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Hon’ble Mr. Justice Cyriac Joseph

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