BABULAL Vs. STATE RAJASTHAN

JUDGEMENT

(1.) THESE eight writ petitions under Article 226 at the Constitution raise common questions of law and, therefore, it will be convenient to dispose them by this order.

(2.) THE relevant facts as stated in S.B. Civil Writ Petition No. 916 of 1979 are these. Petitioner Babulal took Kyari Forests on contract for extracting gum during the working seasons 1975 -76 and 1976 -77. For some alleged breach of contract, the security deposit and gum of the petitioner have been forfeited, the non -petitioners are about to auction the gum. The impugned order is contained in Ex. 1 dated May 24, 1979. Before passing this order, no notice whatsoever was issued to the petitioner to give him an opportunity to explain the dispute. Non -Petitioner No. 2 Divisional Forest Officer, Udaipur passed further order on 8 -6 -79 (Ex. 2) imposing a heavy penalty and directed forteiture of the security and auction of the gum toward relization of the penalty. These actions of non -petitioner No. 2 are illegal, unauthorised and without any jurisdiction Three years after the contract, had been performed, the security amount and the gum of the petitioner could not have been forfeited. Both the orders Exs. 1 and 2 are bad being in violation and breach the principles of natural justice. Under the provisions of the Rajasthan Forests Act, the non -petitioner No. 2 was not empowered to pass such orders. The petitioner was given a contract for collecting gum and all sorts of resins were included in the same and there is no distinction so far as salar gum and other gum is concerned. Therefore, the petitioner did not commit breach of any terms of the contract. The alleged irregularity was also not committed by him. Non -petitioner No. 2 had arrived at his finding regarding the breach of contract without any evidence and also he had no jurisdiction under the terms of contract to arrive at such a finding. The non -petitioners in their reply averred that non -petitioner No. 2 has not passed impugned orders under any law but under the terms of the contract. Blazing of salar trees was against the agreement signed by the contractor petitioner. He could not blaze the salar trees under clause 25(b) of the agreement. There is no question of any arbitrary decision as non -petitioner No. 2. has acted according to the terms of the agreement. Anx R/1 the agreement between the parties is very explicit. In short the defence appeared to be that non -petitioner No. 2 was taking action under the terms of the agreement, Anx. R/1 and, therefore, the writ petition filed by the petitioner is not maintainable. The facts in other writ petitions are more or less similar except that they relate to different periods of contract and different areas of the forest and also punitive action taken is different, inasmuch as, the weight of gum seized, the amount of security deposit forfeited and the penalty imposed are varying. One additional factor may be noticed in the writ petition of Mahavir Prasad v. State of Rajasthan and Anr. S.B. Civil Writ Petition No. 1037 of 1979 that a show cause notice was given to the petitioner and he justified his action of extracting the gum even from the salar trees. The impugned orders in this writ petition are Ex. 2 and 3, which relate only to imposition of the penalties. In writ petition No. 923 of 1979 the petitioner was required to pay a sum of Rs. 23061/ - towards the penalty.

(3.) BEFORE considering the preliminary objection taken by the learned Counsel for the non -petitioners, I would like to focus the controversy between the parties, which crystalised during the course of the arguments. Learned Counsel for the petitioner argued that no doubt, under term 31 of the contract, the Divisional Forest Officer has the right to forfeit some part of the earnest money and may also determine the' damages for injury caused to the forest and till the contractor deposits such damages, he is not entitled to take away the forest produce, It is also specific under term 4 of the agreement that the contractor is not entitled to remove any forest produce except that for which he has been granted a contract. The dispute between the parties is whether the petitioner could collect gun from all trees or only from Kadaya (Sterenlia) trees. However all these powers are subject to term 35 of the agreement, wherein, if there is a dispute between the parties about the interpretation of any of the terms of the agreement or on any question which is directly or indirectly connected with the agreement, then all such questions have to be submitted to the Chief Conservator of Forest and his decision is final. The non -petitioners did net adopt this course and did not refer any question in dispute between the parties to the Chief Conservator of Forest. In absence, thereof non -petitioner No. 2 was not entitled to pass police orders in the nature of the impugned orders Exs. 1 and 2 My attention was drawn in this respect to Chief Conservator of Forests and Ors. v. Ratan Singh Hans : AIR1967SC166 .