STATE OF ORISSA Vs. KHAN SAHEB MD KHAN

JUDGEMENT

(1.) THIS First Appeal has been filed by the State of Orissa against the judgment and decree dated 4th March, L953 of Sri K.C. Mohapatra, First Additional Subordinate Judge of Cuttack, arising out of a suit brought by the original plaintiff Khan Saheb Md. Khan for recovery of damages of Rs. 2,09,500/-on the following allegations : On 25th August, 1946 two Forest contracts were transacted between the parties, that is, the plaintiff and the Government of Orissa - one executed by the Secretary to the Government for a consideration of Rs. 40,588/- and the other signed by the Divisional Forest Officer, Angul Forest Division, and the Deputy Commissioner of Angul on behalf of the Governor of Orissa for a consideration of Rs. 40,587/-, on the basis of which the Government of Orissa granted to the plaintiff exclusive monopoly rights to pluck, remove and appropriate for sale for profits in due course of trade the entire Kendu leaf crop of all the Government reserved forests, demarcated protected forests and undemarcated protected forests under the control of the Forest Department and all undemarcated protected forests under the control of the Civil Department. Exhibit C is the contract in respect of the undemarcated protected forests under the control of Civil Department executed by the Deputy Commissioner of Angul and Ex. C/1 is the other contract in respect of the demarcated protected forests and undemarcated protected forest under the control of the Forest Department. It is to be noted, the contract in respect of the undemarcated protected forests under the control of the Civil Department included also, as asserted by the plaintiff, village lands along with the lands leased out and in possession of the tenants of Angul. These two leases were to enure from 1st August, 1945 to 31st July, 1948.

(2.) THE plaintiff asserts, under the aforesaid contracts the Government of Orissa were bound to secure to the plaintiff the full, unrestricted and complete exercise and enjoyment of all rights, title, interest and facilities for the utilisation and exploitation of the aforesaid monopoly rights granted under the agreements; the Government of Orissa were also bound to afford full projection from all infringement and unlawful interference by any other person derogatory to the rights of the plaintiff; that the Government committed breach of contract by not affording such protections and the plaintiff could not exercise the monopoly rights to pluck and remove kendu leaves within the limits of the contract areas on account of unlawful collections of the leaves by other persons; that the tenants of the village lands refused to sell Kendu leaves grown on the tenanted lands and the Government also failed to fix reasonable prices in accordance with the terms of the agreements; that unauthorised collections in a very large scale were made by third parties not only from the tenanted lands but also from the forest areas; that the Government also had cancelled the contract of the Forest Department on 8th July, 1947 on account of which also there was interference with the rights of the plaintiff in collecting the Kendu leaves by third parties. THE plaintiff, therefore, suffered considerable damage which he estimated at 7300 bags, the value of which being Rs. 1,09,500.00 in respect of agreement relating to the Forest Department and 12000 bags the value of which being Rs. 1,80,000.00 in respect of the agreement relating to the Civil Department - the total claim being Rs. 2,09,500/after relinquishing the amount of Rs. 80,000.00 as detailed in paragraph 6 of the plaint, the valuation being based on the estimated profit of Rs. 15.00 per bag.

(3.) IN conclusion, therefore, the plaintiffs suit must fail and is dismissed; the judgment and decree passed by the trial court are set aside; the defendant's appeal is allowed and manifestly therefore the plaintiff's cross-appeal is dismissed. On a careful consideration of all the materials on record and the circumstances transpiring in the case, we are of the opinion that even though the plaintiff has not been able to make out a case of fixing any liability on the State of Orissa, the plaintiff should not be saddled with costs. It is accordingly ordered that the parties are to bear their own costs throughout. Appeal allowed. Cross-appeal dismissed.