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Judgment
G.D. Sharma, J.—This writ petition was filed by thirteen petitioners but during its pendency twelve of them have withdrawn from the contest
leaving petitioner No. 2 (Ghulam Hassan Dar) as sole contesting petitioner. RespondentNo. 1 istheJ& K State Forest Corporation-a commercial
organisation which has been entrusted with the responsibility of extraction of timber in accordance with the national forest policy aimed at
maintaining the environmental stability and ecological balance. The extracted timber from the forests is sold to the bona fide customers in
accordance with the sale policy which is adopted from time to time by its managing body known as Board of Directors respondent Nos. 2 and 3
are the functionaries of the Corporation.
Policy decision No. 260 of 1987 dated: 11-11-1987 is the genesis of the present dispute (Annexure-A). Pursuant to this policy, the sale of
timber of different varieties was to be affected to the different categories of the consumers including native bona fide consumers. In respect of the
latter category; timber at concessional rates to meet the demand of the residential constructions subject to the production of certain documents
stated in that order was to be supplied. This policy decision was initially for three months subject to further extension to be made by the managing
body of the Board of Directors. The petitioner alongwith other petitioners of this petition applied for the supply of timber for domestic
consumption. On 12-9-1989 (vide Annexure-E), supply of 200 CFT of timber was sanctioned in favour of the petitioner. The Divisional Manager
Allotment had to release the timber after the recovery of the cost on identification of original building permission/ration card. The sanction order
carried a condition that ""the delivery of timber is subject to availability of stocks sawn/ round"". On 30-3-1991, the petitioner suo-moto deposited a
sum of Rs. 11,580/- in the J & K Bank Ltd., as price of the timber. On 2-5-1989 (vide Annexure B) and on 3-5-1990 (vide Annexure-C) the
rates of the timber were enhanced.
The case of the petitioner is that when the supply of the timber vide Annexure-E was sanctioned on 12-9-1989 in his favour he was legitimately
expecting the delivery at the shortest possible time. Buying so, the petitioner pulled down the walls of his house through the agency of a contractor
and incurred huge expenditure. This euphoria was short lived and ended in damp squib when at the time of the supply of timber, its price at the
enhanced revised rates was demanded. Because of financial constraints the petitioner could not make the purchase. According to him, he had
altered the position of his house in furtherance of the contract of the supply of timber and on the basis of the doctrine of equitable estoppel
respondents are bound to supply him the timber at the rates which were prevalent in the year 1989. i.e. immediately after the accord of the
sanction in question. The petitioner had claimed the relief in the following manner :-
(i) Writ of prohibition against the respondents for charging the revised rates in terms of SFC's order No. 100 of 1990 dated : 3-5-1990;
(ii) Writ of mandamus commanding the respondents to release the timber in-favour of the petitioner at the rates which were prevalent at the time
when the supply order in question (Annexure-E) was sanctioned.
Respondents in their objections have raised the preliminary objection regarding the maintainability of the writ petition by stating that the relief
sought is for the specific performance of a breach of contract, for which efficacious alternative remedy for filing the civil suit is available and the
dispute is not amenable to writ jurisdiction.
On facts, it is pleaded that on 11-11-1987, vide order No. SFC-260 of 1987 rates for the supply of different qualities of timber were fixed but
they were only for a period of three months. Thereafter, the rates were changed in terms of order No. 219 of 1989 dated 2-5-1989 and order no.
100 of 1990 dated 3-5-1990. The latter order (No. 100 of 1990) had to remain in force for the period from 1-4-1990 to 31-2-1991. These rates
are charged on the costs of the extraction of the timber and they vary from time to time. It is pleaded that the grant of sanction for the supply of
timber does not create any right in favour of a consumer to have the supply at a price which was prevalent at that time as the contract only gets
completed when the delivery of the timber is possible. The availability of the timber is a necessary condition of the order of the sanction. In the
letter (Annexure-E) nowhere any price of the timber is mentioned.
Heard the arguments.
The counsel appearing for the petitioner in his arguments reiterated the grounds of writ petition. He has vehemently contended that at the time
when supply order (Annexure-E) was sanctioned, the petitioner was made to believe that the timber as was required by the petitioner would be
supplied shortly and on this implied promise he pulled down his house. As the respondents had failed to supply the timber within a reasonable time
so the petitioner was constrained to deposit the prevalent price of the timber in the Bank on March 20, 1991. The principle of promissory estoppel
is attracted and the respondents are bound to supply the timber on the price which has been deposited. According to him, the ratio decidendi of
the case Rose Educational Scientific and Cultural Society (Regd.) and others Vs. Union of India and others, applies in all fours to the facts of the
present case and the respondents may be commanded to supply the timber on the basis of the price which has been deposited.
In rebuttal, the counsel for the respondents has urged that in pursuance of the order No. 260 of 1987 dated: 1 l-ll-1987,the respondents had
decided to supply the timber on concessional rates to the consumers and for that purpose applications were invited. That in terms of the sanction
order in question (Annexure-E), the respondents had offered to supply the timber at the demand of the petitioner but no price was fixed. There
was a condition in the order of sanction that the delivery of the timber sanctioned in favour of the petitioner was subject to the availability of stocks
sawn/round. This means that the price was to be charged at the time of delivery which the respondents had to fix after taking into consideration the
hike in the expenditure for the extraction of the timber. In case the timber had not been supplied it could at the most be a breach of the contract
and the remedy available to the petitioner was for filing a suit in the civil Court for the specific performance of the contract and not invoking the writ
jurisdiction. In support of this contention he had cited the case of Radhakrishna Agarwal and Others Vs. State of Bihar and Others, wherein it has
been held that no writ will lie against the breach of contractual obligations.
After considering the respective contentions of the counsel for the parties and perusing the record it becomes clear that the present controversy
centres around the sale and purchase of the timber in question. On these facts, the provisions of the Sale of Goods Act are attracted. The
petitioner is basing his claim on the supply order (Annexure-E) which does not specify the quality of the timber and its price. On the contrary, there
is a condition in the sanction order itself that delivery of timber is subject to availability of stocks sawn/round. It is thus established that goods to be
supplied were unascertained. Section 18 of the Sale of Goods Act provides that where there is a contract for the sale of unascertained goods, no
property in the goods is transferred to the buyer. Section 19 of the Act provides that where there is a contract for the sale of specific or
ascertained goods, the properly in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. For the
purpose of ascertaining the intention of the parties regard shall be had to the terms of the con- tract, the conduct of the parties and the
circumstances of the case.
Section 20 runs as under :-
Specific goods in a deliverable state : where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in
the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of deli very of
the goods, or both, is postponed"".
After reproducing the above stated provisions of law and adverting to the facts of the present case it is found with no amount of uncertainty
that the title of the timber in question had not been transferred in favour of the petitioner as the timber had remained unascertained and not in a
deliverable state. On the basis of the condition existing in the sanction order (Annexure-E), the timber could be ascertained on the availability of
stocks as well as delivery could also be made at that time; On these facts, the contract had yet not been concluded. There is no evidence to hold
that respondents had made a promise to supply the timber at the price which was prevalent on the date when the sanction order (Annexurc-E) was
passed. The law cited at the bar by petitioner's counsel Rose Educational Scientific and Cultural Society (Regd.) and others Vs. Union of India and
others, has no application to the facts and circumstances of the case. In that case, the petitioners were informed that they would have to pay rate
on ""no profit no loss"" basis. The DDA were estopped from going back on this promise which was held out to the petitioners. The principle of
promissory estoppel was attracted. In the instant case, at ho point of time any promise was made to the petitioner that the timber would be
supplied at the rate which was prevalent at the time of passing the sanction order. In case the petitioner has pulled down the walls of his house, that
is his voluntary unilateral act. The present case is governed by Sections 18. 19, and 20 of the Sale of Goods Act and the petitioner cannot claim
the benefit of the doctrine of promissory estoppel. In this view of the matter, there is found no merit in the writ petition which is dismissed. On the
facts and circumstances of the case, it is left to the judicial discretion of the respondents to supply the timber to the petitioner at a rate which is
lawfully chargeable.