K.C Agarwal, J.:— Nanak Singh petitioner has filed this writ petition for mandamus directing the respondents not to realise 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 18-1-1970, offered a bid for plot No. 100 situate in Kilpura Dogari 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 Oct., 1970, nor harrowed the whole area as per condition 15. In view of this, the office cancelled the lease auctioned in favour of the petitioner, subsequently, the petitioner made an application dt. 5th Jan., 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.
3. On this application, the Divisional Forest Officer cancelled the earlier cancellation order for reauction. 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 installments. 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 realisation 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.
4. The argument of the counsel for the petitioner that the amount could not be recovered as arrears of land revenue as the nature of the recovery was that of damages is not correct.
5. There was a controversy in between the parties whether the land was reauctioned or not. We are satisfied from the counter-affidavit that the reauction did not take place. However, in view of the admitted petition 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 18-1-70. 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 S. 82 of the Forest Act would be applicable. Under it, price unpaid would be recoverable as an arrear of land revenue.
6. Reliance has been strongly placed by the petitioner's counsel on a decision of Division Bench in a case of Virendra Kumar v. State of U.P, AIR 1980 All 100 Para 17 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 which was occasioned by reselling the Forest produce. A case of that nature falls under S. 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.”
7. 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 short-fall, as the land had not been put to resale, what was being recovered from the petitioner was unpaid price.
8. We do not agree with the petitioners counsel that since auction has been cancelled on 1-1-71, the petitioner ceased to be under any contractual obligation to pay the price. We have noted the relevant facts relating to this question above. From those facts it would be found that the order cancelling the contract was recalled on 5-1-71. Consequently, the nature of liability to pay the balance accrued against the petitioner did not change.
9. In the result, the petition fails and is dismissed. The stay order dt. 1-1-1971 is discharged.
10. Petition dismissed.