AB AHAD SHEIKH Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioners secured a lease pertaining to compartment No. 88, North Lolab Range in the year 1962 in the name of M/s Abdul Ahad Ghulam Rasbol, Sopore in Consideration of royalty amounting to Rs. 4,75,000/ - for the extraction of timber in the said area. The lease deed was duly executed on January 7, 1962. In terms of Clause 12 of the said agreement of lease deed, it was due to expire with the end of November, 1964, which was extended twice and finally expired on November, 1966, it is stated that out of the royalty amount fixed, petitioners paid to the respondents towards the royalty to the tune of Rs. 2,25,100/ -. In September 1966 a writ of demand for the recovery of Rs, 2,00,000/ - was issued by Respondent No. 4 against the petitioners and a Certificate was issued for the realisation to Respondent No. 5 for the recoveries against the petitioners. The case has a chequered history, thereafter towards avoiding of the payment of the said amount, which the petitioners succeeded in avoiding, firstly by filing a civil for permanent injunction, which was dismissed on the ground that no such suit could lie against the respondents under Section 72 of the Land Revenue Act thereafter filed a writ petition No. 63 of 1974, which was dismissed for default of appearance on September 8, 1975. Pursuant to the dismissal of the said writ petition, when the proclamation of sale was issued against the respondents for the realisation of the aid sum of money in accordance with Demand notice on August 19, 976, the petitioners on 2 -9 -1976 again filed the writ petition challenging the same recovery under the said Demand Notice of 1966 and subsequently on 7 -10 -1976 tiled the amended writ petition, which as contested by the respondents on several grounds.

(2.) IT is not disputed that the proceedings were initiated for recovery of the amount as arrears of land revenue under the proviso to Section 90 of the Land -Revenue Act and that clause 44 of the agreement of lease contains an arbitration clause to the following effect, which has been reproduced in paragraph 26 of the amended petition. Every dispute which may at any time arise between the parties hereto in respect of this agreement or the subject matter thereof shall be referred to the Chief Conservator of Forests unless he is a party to the agreement in which case the dispute shall be referred to Government whose decision shall be final and binding on both the parties. None of the parties have resorted to the said arbitration clause. On the expiry of the terms of the contractual period of lease, the respondent -Forest Authorities took over the lease compartment and the material, which was lying in the Forest Compartment vested in the State. The quantity of timber lying in the said compartment was sold by auction to one Mohammad Ashan Wani for a sum of Rs. 1,25,000/ -. The petitioners claim that the said limber was worth about three lakhs of rupees, had the auction been duly notified and the petitioners informed of the same.

(3.) THE petitioners challenging the writ of demand and the recoveries against them, though raised several points. Learned counsel for the petitioners at the time of arguments concentrated his arguments firstly that the terrain of the said compartment was extremely hard, rough steep and dangerously mountainous, therefore, on account of the conditions beyond the control of the petitioners, the petitioners were handicapped to exploit the leased compartment to its fullest extent for extraction of timber within the time stipulated in the lease agreement hence they had hardly worked out l/3rd of the timber sold to them under the agreement and 2/3rd of the timber was left in the compartment, thus they were not liable to pay any royalty as demanded by the writ of demand, secondly in terms of section 90 of the Land Revenue Act, unless there is an order or adjudication by any competent authority or court of law, the amount cannot be said to be lawfully recoverable and hence the writ of demand was illegal and in -operative and lastly that the respondents having failed to proceed for the arbitration in terms of arbitration clause are not entitled to realise the un -adjudicated amount as arrears of land revenue.