S HARBANS SINGH Vs. CONSERVATOR OF FORESTS

JUDGEMENT

(1.) THIS is an application by S. Harbans Singh for grant of an appropriate writ to quash certain orders passed by the opposite parties and there is also a prayer for directing the respondents to restore timber which has been extracted by the petitioner under a contract entered into by him with the Forest Department and confiscated by the said Department.

(2.) THIS case was originally heard by Mr. Justice Kilam who has referred it to the Division Bench for decision on two points firstly, "Whether a writ can be issued to enforce a contractual obligation and secondly, "Whether a Court of law can interfere in such matter when in the agreement itself there is a term binding the parties to refer any dispute arising out of the contract to an arbitrator". The arbitrator appointed under the agreement is the head of Department himself.

(3.) IT appears to be now well settled that under Art. 322 -A of the Constitution of India as applied to the State of Jammu and Kashmir a writ for enforcement of contractual rights cannot be granted, because such a right is not a fundamental right so as to call into operation the provisions of Art. 322 -A referred to above. As early as 1953 the Supreme Court made this position clear in the case of Satischandra Anand v, Union of India, 1953 SCA 293: AIR 1953 SC 250 A. Their Lordships of the Supreme Court while dealing with this matter observed as follows: - There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights under his contract which have been denied to him, assuming there are any, and to pursue in die ordinary Courts of the land such remedies for a breach as are open to him, to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived." It is, therefore, clear from the aforesaid observations of their Lordships of the Supreme Court that an application for the enforcement of contractual rights against the Government is not covered by the provisions of Art. 32 of the Constitution of India which is the same as Art. 322 -A as applied to this State.