Mukteshwar Singh v. State Of Bihar — 1978 DIGILAW 151 (PAT)

Judgment MANORANJAN PRASAD, J. 1. This is a first appeal by the plaintiff against the judgement and decree dated 30-8-1969 passed by the Additional Subordinate Judge, Chaibassa, in Title Suit No. 3/1 of 1968. 2. The plaintiff, who is a timber merchant, being the highest bidder at a public auction held on 8-8-1966 at the office of the Divisional Forest Officer, Chaibasa, in pursuance of a notice published in the Bihar Gazette dated 13-7-1966 (Ext. 6), had purchased forest coupe No. 29 at Noamundi for its exploitation in the year 1966-67, at Rupees 32,005, and, in pursuance thereof, an agreement dated 8-8-1966 (Ext. 5) was also signed on the same date by him and the Divisional Forest Officer which was thereafter forwarded by the Divisional Forest Officer for its execution by the Chief Conservator of Forest who is the officer authorised to sign and execute agreements above Rs. 20,000 and below Rs. 50,000 on behalf of the State Government. 3. The area of the coupe, as mentioned in schedule A of the agreement as also in the map, schedule C, forming part of it, was 17.4015 hectares equivalent to 43 acres. The working period for exploitation of the coupe was between 16-10-1966 and 30-6-1967. Under the terms of the agreement the plaintiff was required to pay the aforesaid bid amount of Rs. 32,005 in the following four instalments :- 1. Rs. 9,605 on or before signing the agreement. 2. Rs. 8,000 on or before 25-1-1967. 3. Rs. 8,000 on or before 15-3-1967. 4. Rs. 6,400 on or before 15-6-1967. 4. The plaintiff paid the first instalment of Rs. 9,605 on 21-11-1966 and the second instalment of Rs. 8,000 in two instalments on 6-1-1967 and 5-3-1967 and he paid only Rs. 5,468 towards part payment of the third instalment on 17-5-1967 but did not pay the remaining part of the third instalment nor did he pay any amount of the fourth instalment. 5. According to, the plaintiff, he was supplied with a copy of the agreement, after its execution by the Chief Conservator of Forest, in November, 1977, whereas, according to the defendant, after its receipt from the Conservator of Forest on 21-16-1967, it was sent to the plaintiff by the Divisional Forest Officer along with his letter dated 14-7-1967 (Ext. A). 6. According to, the plaintiff, he was supplied with a copy of the agreement, after its execution by the Chief Conservator of Forest, in November, 1977, whereas, according to the defendant, after its receipt from the Conservator of Forest on 21-16-1967, it was sent to the plaintiff by the Divisional Forest Officer along with his letter dated 14-7-1967 (Ext. A). 6. According to the plaintiff, though he was supplied with a copy of the agreement, after its execution by the Chief Conservator of Forest, in the month of November, 1967 i.e., much after the period of exploitation expired on 30-6-1967, he had been permitted, by the Divisional Forest Officer and his subordinate staff to carry on the operation in the coupe in question during the agreed period of exploitation i.e. between 16-10-1966 and 30-6-1967. But when he had started his operations in the said coupe, the subordinate officials of the Forest Department started unduly interfering with his work over a portion of an area measuring 12 acres lying between coupe Nos. 29 and 30 in spite of the fact that this area was not only advertised for sale as a part of coupe No. 29 but had also been delineated in the map which formed part of the agreement. Owing to this undue and illegal interference, the plaintiff had to bring the matter to the notice of the Divisional Forest Officer, Chaibasa, by his letter dated 18-12-1966 on which the Divisional Forest Officer had personally visited the coupe in question, and, after being thoroughly satisfied by spot enquiry and actual measurement about correctness and genuineness of the plaintiffs claim had submitted a report to the Conservator of Forest, Ranchi, completely supporting the stand taken by the plaintiff. The plaintiff also understands that the said Officer had also recommended that the plaintiff should be permitted to work and exploit this area of 12 acres. In spite of the aforesaid unambiguous recommendation of the Divisional Forest Officer, the plaintiff was not only not permitted to carry on his work in the aforesaid area of 12 acres but was also prevented from removing the materials, some of which had already been felled by him and some of which were still standing on another area of 6 acres. The plaintiff had personally discussed the matter with the Conservator of Forest and also with the Chief Conservator of Forest and although they had been assuring the plaintiff all the times that the matter would be looked into and the date of expiration of the period of exploitation mentioned in the agreement would be extended, nothing finally turned out and when the time mentioned in the agreement was about to run out, the plaintiff was compelled to issue a notice under S.80 of the Civil P.C. 7. According to the plaintiff, the value of the timber standing on the said 12 acres of land over which he had been illegally debarred from cutting and removing the materials is Rs. 15,000 and the value of the timber standing on the other 6 acres of land over which also he had been illegally debarred from cutting and removing the materials is Rs. 7,000 total Rs. 22,000, and, therefore the plaintiff, after deducting the sum of Rs. 8,932 being the amount due from him on account of the remaining unpaid part of the third instalment and whole of unpaid fourth instalment, had claimed Rs. 13,068 on account of loss suffered by him by way of damages as per accounts given in the schedule of the plaint. 8. The defendant, the State of Bihar, had filed a written statement. The case of the defendant was that the coupe No. 29 as demarcated on the spot physically was only 31 acres and not 43 acres and the aforesaid 12 acres as claimed by the plaintiff was outside coupe No. 29 and it was wrongly shown as 43 acres in Schedule A of the agreement as also in the map, Sch. C, attached to the agreement due to the mistake committed by the staff of the Forest Department against whom necessary action had been taken. 9. The defendant admitted that the concerned Divisional Forest Officer had made spot inquiry and had sent recommendation to the Conservator for rebate in favour of the contractor but, according to the defendant, he never recommended that the plaintiff should be permitted to work and exploit the area of 12 acres in question. 10. 9. The defendant admitted that the concerned Divisional Forest Officer had made spot inquiry and had sent recommendation to the Conservator for rebate in favour of the contractor but, according to the defendant, he never recommended that the plaintiff should be permitted to work and exploit the area of 12 acres in question. 10. The further case of the defendant was that the plaintiff had failed to pay part of the third instalment and had not paid any part of the fourth instalment, and hence, as per term of the agreement, the Divisional Forest Officer, by his letter dated 10-5-1967 (Ext. A/3) had informed the Range Officer that the plaintiff had paid only Rs. 5,468 towards the third instalment of Rs. 8,000 and hence he should be asked to deposit the balance amount of the third instalment and in the meantime he should not be allowed to remove more than half of the materials from Sec.3 of coupe No. 29. The Divisional Forest Officer also by his letter dated 10-5-1969 (Ext. A/2) asked the plaintiff that he should deposit arrear part of the third instalment and the fourth instalment in full soon and that the question of allowing him rebate was under the consideration of the Chief Conservator of Forests. Thereafter also by letters dated 17-5-1977 and 22-5-77 the plaintiff was directed to deposit the arrear, but when, in spite of the final notice, the plaintiff did not pay the balance due, the Divisional Forest Officer in his letter dated 19-6-1978 (Ext. A/1), with a copy to the plaintiff, wrote to the Conservator of Forest, for termination of the agreement. 11. According to the defendant, the plaintiff had worked in 26 acres and removed materials therefrom, but, as he did not deposit the third instalment in full and the entire fourth instalment, he was not allowed to work in the remaining 6 acres of Sec.3 of coupe No. 29 and the plaintiff did not work whatsoever in the disputed area of 12 acres. 12. The further case of the defendant was that the Chief Conservator of Forest rejected the plaintiffs representation for allowing him to work in 5 acres of Sec.3 of coupe No. 29 and to give him possession of the disputed 12 acres, and this fact was intimated by the Conservator of Forest by his letter dated 18-12-1969 (Ext. 12. The further case of the defendant was that the Chief Conservator of Forest rejected the plaintiffs representation for allowing him to work in 5 acres of Sec.3 of coupe No. 29 and to give him possession of the disputed 12 acres, and this fact was intimated by the Conservator of Forest by his letter dated 18-12-1969 (Ext. A/6) to the Divisional Forest Officer in which he also directed the Divisional Forest Officer to sell the said 5 acres of coupe No. 29 as left materials and to make a new coupe of the disputed 12 acres and auction the same. The plaintiff was also duly informed by the Divisional Forest Officer in his letter dated 30-12-1967 (Ext. A/5) that his representation in respect of coupe No. 29 had been rejected. 13. The defendant also contended that the plaintiff did not suffer a loss of Rs. 13,068 or any amount whatsoever as claimed by him and he is not entitled to any decree for damages. 14. The defendant had also taken a plea that the plaintiffs suit was barred under Clause 19 of the agreement which stated that the parties to the agreement had mutually agreed that in the event of any dispute or question arising whether during the continuance or after the termination of the agreement with regard to the terms or the construction or meaning of the agreement or as to the performance of any act required to be done under the agreement or as to any other matter or thing in connection with the agreement, the decision of the Conservator of Forest upon the matter of such dispute or question shall be final and binding on the parties. According to the defendant, in this case, as already mentioned above, the decision of the Conservator of Forest was against the plaintiff whose representation in this regard was rejected, and hence the plaintiffs suit was liable to be dismissed on this score alone. 15. The learned Additional Subordinate Judge has held that as per terms of the agreement dated 8-8-1966 (Ext. 5 and Ext. D) entered into between the parties, 43 acres of forest land was auction-sold for the purpose of exploitation of the forest produce; but, according to the admitted case of the parties, the plaintiff was not allowed by the defendant to work in 12 acres of land. 5 and Ext. D) entered into between the parties, 43 acres of forest land was auction-sold for the purpose of exploitation of the forest produce; but, according to the admitted case of the parties, the plaintiff was not allowed by the defendant to work in 12 acres of land. He has further held that for the non-payment of a part of the third instalment and full of the fourth instalment, the plaintiff was not allowed to work in a further area of 5 acres. He has, thus, held that the plaintiff had worked only in 26 acres and removed materials therefrom, and that the plaintiff was not allowed to work in 12 acres, besides 5 acres, total 17 acres, and, thus, he has accepted the plaintiffs case that he was given lesser area than what he was entitled to and he was not permitted to carry on work in and was prevented from removing materials from the entire area of 43 acres mentioned in the deed of agreement. He has, however, further held that the defendant was justified in not allowing the plaintiff to remove forest produce from 5 acres as he had failed to deposit a part of the third instalment and whole of the fourth instalment. As regards 12 acres of land, he has held that the defendant had given assurance to the plaintiff that he would be allowed rebate in respect of that area after he deposited the balance of the third instalment and the entire fourth instalment within time; but since the plaintiff himself had not done his part of his job by depositing these instalments, the plaintiff cannot have any justification for claiming any amount against the Government. He has next held that under Clause 12 of the agreement also the plaintiff is not entitled to claim refund of any sums payable or paid by him under the agreement on the ground that the area differs in any way from that laid down in the map in Schedule C thereto or in the sale notice. He has also held that under arbitration Cl.19 of the agreement also the plaintiffs suit was not maintainable. He has further held that the plaintiff had led no evidence as to why and how Rs. 22,000 had been claimed as damages. He has also held that under arbitration Cl.19 of the agreement also the plaintiffs suit was not maintainable. He has further held that the plaintiff had led no evidence as to why and how Rs. 22,000 had been claimed as damages. In view of these findings, the learned Additional Subordinate Judge has held that the plaintiff was not entitled to any relief and, consequently, he had dismissed the plaintiffs suit. 16. Against the said judgement and decree of the learned Additional Subordinate Judge, the plaintiff has preferred the present appeal. 17. Before entering into the merits of the appeal, I would like to dispose of a preliminary point which incidentally arises on the pleadings of the parties but which was not canvassed in the trial court and was only feebly referred to in his argument by Mr. T.N. Roy, the learned counsel appearing for the appellant. The admitted case of the parties is that the plaintiff being the highest bidder at an auction held on 8-8-1966, in pursuance of a notice published in the Bihar Gazette dated 13-7-1966 (Ext. 6), had purchased coupe No. 29 for Rupees 32,005, and an agreement (Ext. 5) was also signed by the plaintiff and the Divisional Forest Officer, and thereafter it was forwarded by the Divisional Forest Officer to the Chief Conservator of Forest for execution as it is only the Chief Conservator of Forest who is authorised to execute agreements for more than Rs. 20,000 and below Rs. 50,000 on behalf of the State Government. The plaintiff had in this connection mentioned in paragraph 4 of the plaint that he was supplied with a copy of the agreement, after the signature of the Chief Conservator of Forest, in November, 1967, i.e. long after the expiry of the period of exploitation of the forest produce mentioned in the agreement which was from 16-10-1966 to 30-6-1967. On the other hand, the defendant had stated in paragraph 9 of the written statement that a copy of the agreement was sent to the plaintiff with letter No. 1930 dated 14-7-1967 (Ext. A) of the Divisional Forest Officer after its receipt on 21-6-1967 from the Conservator of Forest. On the other hand, the defendant had stated in paragraph 9 of the written statement that a copy of the agreement was sent to the plaintiff with letter No. 1930 dated 14-7-1967 (Ext. A) of the Divisional Forest Officer after its receipt on 21-6-1967 from the Conservator of Forest. Subsequent signing and execution of the agreement by the Chief Conservator of Forest at a late stage will, however, make no difference in this case as the sale of coupe No. 29 to the plaintiff was finalised on 8-8-1966 when the bid was knocked down in favour of the plaintiff in pursuance whereof the deed of agreement was also signed by the plaintiff and the Divisional Forest Officer, which was, however, subject to the approval of the Chief Conservator of Forest, and the fact that the Chief Conservator of Forest signed it on a subsequent date did not make the sale effective from the date of his signature. The signature of the Chief Conservator of Forest simply completed the execution of the deed of contract and related back its execution to the date on which the sale took place and the contractor and the Divisional Forest Officer had signed the document. This view finds support from the decision of the Supreme Court in the case of Badri Prasad V/s. State of Madhya Pradesh, AIR 1966 SC 58 . Moreover, this point is only academical as it is the admitted case of the, parties that the contract was taken as completed on the date of auction sale on 8-8-1966 and the plaintiff was permitted to carry on his operation in the coupe in anticipation of the formal execution of the agreement by the Chief Conservator of Forest and the plaintiff actually carried on such operation. 18. In this case it is undisputed that though in Sch. A of the agreement as also the map, Sch. C, forming part of the agreement, the area of coupe No. 29 was mentioned as 43 acres, the plaintiff was not allowed to work in 12 acres by the defendant. 18. In this case it is undisputed that though in Sch. A of the agreement as also the map, Sch. C, forming part of the agreement, the area of coupe No. 29 was mentioned as 43 acres, the plaintiff was not allowed to work in 12 acres by the defendant. In this connection the contention of the defendant is that the said area of 43 acres had been wrongly shown therein due to mistake in preparing the map by the staff of the Forest Department against whom necessary action had been taken as the area of Coupe No. 29 auction-sold to the plaintiff was only 31 acres at the spot and was demarcated as such and the plaintiff knew before the sale and also after the sale about it when he and his agent were shown the boundary and limits of coupe No. 29 whereafter the plaintiff had given a boundary declaration certificate dated 22-11-1966 to that effect. The defendant relied in this regard on the declaration certificate dated 22-11-1966 (Ext. C) given by the plaintiff to the effect that he and his authorised agent had been shown the boundary and limits of coupe No. 29 by Forester and the area shown to him and to his authorised agent on the ground, agrees with that delineated on the map attached to Sch. C of the agreement and that he and his authorised agent had counted the trees in the above lot and had found that those marked trees agree with the list attached to Sch. BB of the agreement. 19. According to the plaintiff, he was also not allowed to work in another 6 acres which was admittedly auction-sold to him. According to the defendant, however, the plaintiff was not allowed to work in only a acres out of the area auction-sold to him. The learned Additional Subordinate Judge has accepted the defendants version that the plaintiff was not allowed to work only in 5 acres and he has rejected the plaintiffs version that he was not allowed to work in acres, on the ground that the plaintiff had not got that area measured, and I see no reason to differ from the said finding of the learned Additional Subordinate Judge. According to the defendant, the plaintiff was not allowed to work in the said area of 5 acres, because he had not paid part of the third instalment and whole of the fourth instalment. The plaintiff had admittedly paid only Rs. 5468/- on 17-4-1967 towards the third instalment of Rs. 8000.00 although this third instalment had become due on 15-3-1967 and he had not paid the remaining Rs. 2532/- of the third instalment and whole of the fourth instalment of Rs 6,400/-. Thus, the plaintiff had not paid Rs. 8,932/- towards the bid amount of Rs. 32,005/-. Ext. A/2 is a letter dated 10-5-1967 from the Divisional Forest Officer to the plaintiff demanding from him the remaining amount of the third instalment and the whole of the fourth instalment and informing him that after the receipt of the order of the Chief Conservator of Forest he will be given rebate. Ext. A/3 is another letter dated 10-5-1967 of the Divisional Forest Officer to the Range Officer informing him that the plaintiff had deposited only Rs. 5,468/- towards the third instalment and hence from Section No. 3 of coupe No. 29 he should not be allowed to take out more than half of the forest produce, and the plaintiff should be asked to deposit the balance of the third instalment. Ext. A/1 is another letter dated 19-6-1967 written by the Divisional Forest Officer to the Conservator of Forest intimating him that the plaintiff had not deposited the balance of the third instalment and whole of fourth instalment within the stipulated period in spite of reminders and recommending that, in the circumstance, the agreement with the plaintiff in respect of the coupe No. 29 should be cancelled and the coupe should be resold by fresh auction. Ext. A/6 is a letter from the Conservator of Forest to the Divisional Forest Officer intimating him that though he had recommended for allowing the plaintiff to work in the remaining 5 acres and for giving him the remaining 12 acres, the Chief Conservator of Forest was not agreeable to it and hence the forest produce of the said 5 acres should be sold away as left materials and the 12 acres which was a part of coupe No. 29 should be made a new lot and sold away, and the representation of the plaintiff should be treated as rejected. Ext. Ext. A/5 is a letter D/- 30-12-1967 from the Divisional Forest Officer to the plaintiff informing him that his representation had been rejected. 20. Clause 12 of the agreement stated that the purchaser shall not be entitled to claim any reduction or refund of the sums payable or paid by him under the agreement on the ground that the area differs in any way from that laid down in the map in Sch. C thereto or in the sale notice. After having entered into such an agreement, the plaintiff cannot subsequently complain that the area actually given to him at the spot was less by 12 acres than what had been mentioned in the map, Schedule C of the agreement. 21. Clause 15 of the agreement further laid down that in case of the failure of the purchaser to pay any of the instalments on or before the stipulated dates, it shall further be lawful for the Conservator of Forest, at his discretion and without prejudice to any penalties already imposed under the terms of the agreement, to suspend temporarily all operations in the said lot for one month or until the adjustment of the failure or breach by the purchaser whichever is earlier and if the failure or breach by the purchaser is not adjusted within one month of the suspension of his work then the State Govt. shall have full power to suspend all operations in the lot for such time as the Government may consider necessary, pending adjustment of the failure or breach and/or determination of the agreement. The said Cl.15 further laid down that under the same condition as aforesaid it shall further be lawful for the Government/ Conservator of Forest, at any time by notice in writing to the purchaser under the hand of the Forest Officer to determine the agreement and thereupon the purchaser shall forfeit his security deposit and all his rights under the agreement and all forest produce whether exploited or not and all material converted therefrom whether partially exploited or not which is still within the said lot shall become the property of the Government. Therefore, when the plaintiff did not pay the balance of the third instalment and whole of the fourth instalment within the stipulated periods, the defendant was fully justified in terms of the agreement in not allowing the plaintiff to work in 5 acres out of the area auction-sold to him. 22. Moreover, Cl.19 of the agreement reads as follows :- "19. Lastly, it is mutually agreed between the parties hereto that in the event of any dispute or question arising whether during the continuance or after the termination hereof with regard to the terms of these presents or the construction or meaning hereof or of any part or provision hereof or as to the performance of any act hereby required to be done or as to any other matter or thing in connection herewith, the decision of the Conservator of Forest, Bihar upon the matter of such dispute or question shall be final and binding on the parties hereto." 23. Sec.28 of the Indian Contract Act which declares agreement in restraint of legal proceeding void, provides the following exception to the said Section in respect of arbitration agreement : "Exception 1- This Section shall not render illegal a contract by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred." 24. As already mentioned above, the plaintiff had also made representation regarding his claim to the Conservator of Forest and according to the plaintiffs own case in the plaint, he had also personally discussed the matter with the Conservator of Forest and also with the Chief Conservator of Forest, but the representation of the plaintiff to allow him to work in the remaining 5 acres of coupe No. 29 and also to give him possession of the disputed 12 acres was rejected by the Chief Conservator of Forest which fact was intimated by the Conservator of Forest in his letter dated 18-12-1967 (Ext. A/6) addressed to the Divisional Forest Officer, and this fact was also intimated to the plaintiff by the Divisional Forest Officer in his letter dated 30-12-1967 (Ext. A/5). 25. A/6) addressed to the Divisional Forest Officer, and this fact was also intimated to the plaintiff by the Divisional Forest Officer in his letter dated 30-12-1967 (Ext. A/5). 25. For the aforesaid reasons, I do not see any reason to interfere with the judgement and decree passed by the learned Additional Subordinate Judge, which are hereby confirmed, and the appeal is dismissed with costs. 26. LALIT MOHAN SHARMA, J.:- I agree that the appeal should be dismissed with costs. 27 The Cl.19 of the agreement, quoted in para. 22 of the judgement of my learned brother clearly leads to the conclusion that the present suit is not maintainable. The plea was pointedly raised in the written statement and a specific issue was framed. Although the Court has not considered the point at length, but the question has been answered to in the judgement against the plaintiff. The fact that the matter was considered and was decided against the plaintiff by the Conservator is proved by the documentary evidence including Exts. 1(a), A(5) and A(6). In para. 8 of his evidence, the plaintiff (P.W. 2) also accepted the fact. I am fully conscious of the fact that the decision of the Conservator was not made rule of the Court, but, for the reason, it is not possible to hold that the suit is maintainable. The decision in Satish Kumar V/s. Surinder Kumar, AIR 1970 SC 833 and that of the High Court in Court Shankar Prasad Sinha V/s. State of Bihar, 1973 0 BBCJ 85 which has followed the Supreme Court decision, fully cover the present appeal and it must be held that the suit is not maintainable. 28. Before concluding, I would like to mention that although the point was very faintly stated on behalf of the State and was not supported by exhibits or the decisions mentioned by me above, it cannot be said that the plaintiff has been, for that reason, prejudiced. When Mr. N.N. Roy, appearing for the plaintiff-appellant rose for his final reply, the question was put to him by the Bench with specific reference to the provisions of S.28 of the Indian Contract Act by my learned brother and to the exhibits by me. It was also indicated to Mr. When Mr. N.N. Roy, appearing for the plaintiff-appellant rose for his final reply, the question was put to him by the Bench with specific reference to the provisions of S.28 of the Indian Contract Act by my learned brother and to the exhibits by me. It was also indicated to Mr. Roy that the question of maintainability of the suit on account of Cl.19 of the agreement appeared to be a formidable one against him and we, in our judgement, would not be confined merely to the perfunctory argument addressed on behalf of the State. Mr. Roy was invited to make full arguments on the question.