LAL CHAND Vs. COLLECTOR OF SIRMUR

JUDGEMENT

(1.) This is an application by one Lal Chand under Article 226 of the Constitution of India for issue of a writ of mandamus, and such other directions as may be necessary, to the Collector of Sirmur and the Assistant Collector of Pachhad District Sirmur (hereinafter referred to as respondents 1 and 2 respectively). The facts of the case, briefly stated, are as follows.

(2.) The petitioner was an employee in the forest department of the ex-Nahan State. On 10th, Poh, Samvat 2004, corresponding to 24-12-1947, the State and the petitioner entered into a contract whereunder the latter was to extract resin and supply the same at a factory on certain terms and conditions, including receipt of commission by the petitioner and bearing of expenses of extraction, collection and delivery of resin at the factory by the Government of the State. The contract was initially for a period of one year but subject to extension thereafter. There is a difference between the parties as to whether it was extended after the expiry of the first year. In any case, on 19-3-1949 the petitioner was made to resume his post in the forest department of the Government of Himachal Pradesh, the successor to Nahan State. Subsequently a departmental enquiry was conducted by the Secretary Finance and Development to the Chief Commissioner Himachal Pradesh and by the Conservator of Forests Sirmur, and they recorded a finding on 26-6-1951 that a sum of Rs. 1435/, 12/6 was due from the petitioner to the Government for short supply of resin and non-return of certain Government stores. Reducing this amount to Rs. 1285/12/9, and treating it as payable to the Government under the Indian Forest Act (XVI of 1927), the Chief Conservator of Forests Himachal Pradesh moved respondent No. 1 on 17-1-1951 under Section 82 of the Act to recover it from the petitioner as arrears of land revenue. On the other hand, the petitioner served a notice upon the Secretary Finance and Development, Himachal Pradesh Government under Section 80, Civil P. C., on 5-4-1951, claiming a sum of Rs. 31612/8/- on account of commission and damages. On 19-6-1951 the Chief Conservator of Forests wrote to respondent No. 1 informing him that the Conservator of Forests Sirmur had been asked, by order of the Chief Commissioner, to examine the petitioner's claim and give him credit for any amount that might be found due to him, and directing him in the meanwhile to suspend further proceedings against the petitioner. In the reply to the present petition, filed on behalf of the respondents on 18-9-1951, it was admitted that the correct amount found due against the petitioner came to only Rs. 200/ 10/3. However, on 23-6-1951 respondent No. 2, in compliance presumably with respondent No. 1's order, distrained under Section 70 of the Punjab Land Revenue Act (XVII of 1887) three buffaloes, a bullock and two cows of the petitioner for recovery of the said sum of Rs. 1285/12/9 and Rs. 2/- process fees, total Rs. 1287/12/9. Thereafter, the present petition was filed on 26-7-1951 praying that a writ of mandamus be issued to the respondents directing them to withdraw the attachment and to forbear from demanding the said dues or enforcing the recovery of the same as arrears of land revenue from the petitioner till they have established their right to its recovery according to the law. The allegations on which this relief is claimed are that no amount is actually due by the petitioner to the Government, that attachment proceedings were taken out against him mala fide with a view to bringing pressure to bear upon him to prevent him from claiming the aforesaid sum of Rs. 31000/- odd, and that the proceedings of attachment are illegal and ultra vires since the amount claimed does not fall within the purview of Section 82 of the Forest Act.

(3.) The respondents traversed the above allegations, and they pleaded that breach of contract had emanated from the petitioner and, as a result, a sum of Rs. 200/10/3 was still due by him. It was further pleaded that a regular suit was the proper remedy for the petitioner to seek, specially in view of the terms of his notice under Section 80, Civil P C.; that the petitioner having been found guilty of breach of contract as a result of departmental enquiry, it was not open to him to claim the summary remedy by way of a writ; that the petitioner having come to know as early as January 1951 that the dues were to be recovered from him as arrears of land revenue, the present petition must be thrown out on the ground of laches; and that the respondents were simply carrying out a duty enjoined upon them by the law, and therefore no writ should be issued against them.