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2014 DIGILAW 626 (ORI)

State of Orissa v. Girish Chandra Tripathy

2014-09-24

D.DASH

body2014
JUDGMENT The unsuccessful defendants being aggrieved by the judgment and decree passed by learned Sub-ordinate Judge, Bargarh (as it was then) in M.S. No.61 of 1981 have filed this appeal. By the said judgment, the Court below has decreed the suit of the respondent directing the appellants to pay a sum of Rs.15,720/- with the cost of the suit within a period of one month or else to pay pandentilite and future interest @ 6 percent per annum. 2.For the sake of convenience, to avoid confusion and for clarity, the parties hereinafter have been referred to as they have been arranged in the Court below. 3.Plaintiffs case is as under :- The plaintiff, a Forest contractor, stood as the highest bidder, in the auction held pursuant to the sale notice dated 25.08.1978 for sale of Barabakhara C.C. No.9, D.L. No.11, 78-79 of Bhatil Range, Sambalpur Forest Division. The bid was knocked down in favour of the plaintiff for a sum of Rs.1,39,000/-. Accordingly, the plaintiff executed an agreement having deposited the sum towards the security deposit. The same having been accepted and approved was duly communicated to the plaintiff by D.F.O., Sambalpur vide letter No.5917 dated 16.11.1978. As per the terms of the agreement and the work order, the plaintiff was required to deposit the bid amount in four equal installments which he did. As per the sale notice dated 25.08.1978 marking list was supplied to the plaintiff for felling of 475 number of trees both sound and unsound in four Sections. The plaintiff accordingly started the work of felling. In course felling, it was detected that sl. No.801 to 900 was omitted in the marking list though the page number has been shown consecutively and on actual verification it was found that no trees have been marked in the coupe corresponding to the said serial numbers. So, the same was immediately brought to the notice of the Forest Range Officer, Bhatli who after verification was convinced about such omissions and non-making of the trees. It is stated that Range officer then gave a second list indicating sl. No.801 to 900 but it was without any signature of the Marking Officer and there came the direction of the Range Officer to the agent of the plaintiff to make entry of the same in felling and conversion register. It is stated that Range officer then gave a second list indicating sl. No.801 to 900 but it was without any signature of the Marking Officer and there came the direction of the Range Officer to the agent of the plaintiff to make entry of the same in felling and conversion register. The agent out of ignorance made entry of 10 serials of trees without the knowledge of the plaintiff. But when the plaintiff detected the said defect, he did not allow the same to be further entered into the felling and conversion register as there was no actual marking of the tree as per serial noted in the second list. The plaintiff then requested the Range Officer several times to mark the trees as per the second list but did not oblige. As the Contract period was going to expire by 30.11.1978 the plaintiff requested the DFO vide letter dated 28.11.1979 for rectification of the said mistake and after long lapse of time, the DFO, Sambalpur was pleased to direct the ACF, Sambalpur to make spot inquiry and accordingly the enquiry was made but no decision was communicated in spite of repeated request and appeal. The discrepancy as above as per the case of the plaintiff was due to the negligence on the part of the employees of the defendants. So the plaintiff claimed to have sustained loss for the same and it was assessed at Rs.15,720/- as per the calculation of the fair rate of 100 nos. of trees. The plaintiff thus claimed compensation of the said amount from the defendants and served notice under Section 80 C.P.C. As no response came, the suit was filed. 4.The defendant No.3 contested the suit by filing written statement. of trees. The plaintiff thus claimed compensation of the said amount from the defendants and served notice under Section 80 C.P.C. As no response came, the suit was filed. 4.The defendant No.3 contested the suit by filing written statement. While traversing the plaint averment and denying the claim of the plaintiff on account of said negligence of the employees as alleged, a stand has been taken that the sale of the coupe being subject to the condition that no claim regarding quality and quantity of reduction or refund of any sum to the purchaser would be entertained in view of the specific condition that the bidder was to participate in the bid after inspection of the coupe, the plaintiff can neither legally maintain the suit in accordance with the Clause-5 of the sale notice dated 25.08.1978 nor can levy any claim as has been done in respect of the said loss sustained by him; more so, when the plaintiff furnished the couple declaration certificate under Rule 12 of the Orissa Forest Contract Rules on 17.01.1978 specifying therein that he had no complaint to make regarding the stock and area of the coupe. Further the supply of the work list by the Forest Range Officer and also a second such list said have been furnished to the plaintiff were denied. It was stated that the coupe was put to option only after the marking list was prepared by the Marking Officer, which was duly rectified. Over and above, it has been asserted as regards the allegation relating to omission of Sl. No.801 to 900 in the marking list furnished to the plaintiff as blatant lie. 5.On such rival pleadings, the Court below framed as many as six issues; such as the existence of cause of action; whether the claim of compensation is untenable in view of sale notification dated 25.08.1978; whether the plaintiff is estopped from making any claim and those relating to jurisdiction and limitation. As it appears the Court below then has rightly gone to take up issue No.2 and 3 as per the main challenge advanced by the defendant to thwart the claim of the plaintiff as projected in the suit as in view of pleadings, the answer to these two issues practically govern the fate of the suit and those are also inter-twined. On analysis of evidence in the touchstone of the rival pleadings as well as interpreting relevant clause 5 of the sale notice i.e., Ext.A., the Court below has finally answered these two issues in favour of the plaintiff. Next going to take up the issue of the jurisdiction, the same has also been answered in the affirmative and consequentially other issues, which have been impugned in this appeal. 6.Learned counsel for the State challenges the finding of the trial Court rendered in respect of issue No.2 and 3. It is his contention that in view of the specific clause contained in clause-5 of the sale notification that no complaint regarding quality and quantity of the produce sold and the area of the contract of lot and cope will be entertained after the sale is concluded, the Court below has gone to answer the issue by improper construction of the said clause. According to him, the omission in the list as well as in marking of the trees has the nexus with the quantity and therefore, the Court below ought to have straight away refused to accept the claim without delving further on the subject. He also submits that the reasons assigned by the Court below are contradictory and according to him the plaintiff being under the definite legal obligation to accept that marking list as has been given to him and his future complaint being not entertainable, the claim as advanced in the suit ought to have bene declined. Learned counsel for the respondent on the contrary supports the finding rendered by the trial Court on these two issues. According to him, the contention of the learned counsel for the appellant is not well founded as the clauses of Ext.A, the sale notice does not prohibit the contractor to levy the claim in respect of quantities of trees that did not find mention in the marking list for which he was deprived of felling those trees and thus sustained loss. He further submits that such omission in the marking list does not refer to the quantity as indicated in Ext-A’s relevant clause which has to be read in that context. He further submits that it is not the case of the plaintiff that there were no tree and that on the contrary, it is his case that he could not remove those trees due to omission of the sl. He further submits that it is not the case of the plaintiff that there were no tree and that on the contrary, it is his case that he could not remove those trees due to omission of the sl. No.801 to 900 in the marking list and when for that reason the plaintiff has sustained loss of the fair price of 100 nos. of trees to the tune of Rs.15,720/-, the finding of the trial Court needs affirmation. 7.Keeping the aforesaid rival submission in the mind let’s now proceed to examine the sustainability of the finding of the trial Court on issue no.2 and 3. Clause 5 of Ext.A, the sale notice published in Orissa Gazette vide notification dated 25.08.1978 reads as under :- “The intending bidders are strictly warned to inspect the coupes and lots before bidding in the auction. The act of bidding shall be taken as sufficient proof of the bidder having inspected the coupe and produce and having satisfied himself about the correctness of the quality of the produce and the areas of the contract sold. No complaint regarding the quality and quantity of the produce sold and the areas of the contract of lot or coupe will be entertained after sale is concluded and the forest contractor shall be entitled to claim any reduction or refund etc of the sum payable by him under his contract on the ground that the quality of the forest produce falls short and quantity specified in the schedule annexed to the agreement or in sale notice or that the quality of the produce in different from that specified in the said agreement in the sale notice of that the contract area differ in any way from that indicated in the schedule attached to the agreement.” (Emphasis supplied). No doubt the above clause stipulates that no complaint regarding the quality and quantity of the produce sold and the area of the contract of the lots and coupe will be entertained after the sale is concluded. However, the case here is different, where plaintiff attributes the negligence on the part of the employees of defendants in omitting sl. No.801 to 900 in the marking list which has led to his deprivation in felling those 100 nos. of trees and their ultimate utilization. However, the case here is different, where plaintiff attributes the negligence on the part of the employees of defendants in omitting sl. No.801 to 900 in the marking list which has led to his deprivation in felling those 100 nos. of trees and their ultimate utilization. So, here the respondent is neither raising a dispute on the correctness of the quality of the produce nor its quantity and his claim is that he being not able and legally not permitted to remove those trees due to said omission and when in view of Rule 4 of the Odisha Forest Contract Rules, he was not entitled to appropriate or use any forest produce purchased by him under the contract unless he has been given permission by express provision in the said contract, this Court is not inclined to accept the submission of the learned counsel for the appellants that the basis of claim of the plaintiff having its nexus with the quantity, the claim advanced by plaintiff is untenable and has to be whittled down at the threshold. 8.The plaintiff has not claimed any reduction or refund from out of money already paid by him in respect of the trees which he purchased under serial No.11 of Ext.A which does not contain anything to show that the trees purchased by him thereunder bore any mark. Thus Clause-5 of the Ext.A cannot be pressed into service to negate the plaintiff’s claim of compensation being confined only to those 100 numbers of trees which he was not authorised to remove and utilize on the face of the Rule-4 of the Odisha Forest Contract Rules. Furthermore, the trees mentioned under serial No.11 of Ext.A having contained no number of marking, it cannot be said that the subject matter of the contract between the plaintiff and the defendant related to only the trees that had been marked. Under the circumstances, Clause-5 of Ext.A does not come to the rescue of the defendants to thwart claim of the compensation advanced by the plaintiff in respect of 100 numbers of trees as to have been based on the identity of the trees sold to him. At this stage the evidence of D.W.1 is also required to be gone through. Under the circumstances, Clause-5 of Ext.A does not come to the rescue of the defendants to thwart claim of the compensation advanced by the plaintiff in respect of 100 numbers of trees as to have been based on the identity of the trees sold to him. At this stage the evidence of D.W.1 is also required to be gone through. He has stated that in addition to the marked trees, other trees not being marked were also there in the coupe and that when taken into consideration in its proper prospective, the defence that the plaintiff’s claim for compensation in respect of 100 numbers of trees as if based on the ground of shortage of the quantity trees as contemplated under Clause-5 of the Ext.A falls flat. 9.Next importance is given on the recital of the Ext-C, the coupe declaration certificate given by the plaintiff to the defendants on 17.11.1978. Ext.C goes to show that the plaintiff admitted the correctness of the area of the coupe and the numbers of standard trees marked for retention which he was not authorized to remove from the forest and there he has made it clear that there would neither be illicit felling of trees from nor shortage of stock in the coupe sold to him. It is claimed by the defendants that by execution of the said documents, the plaintiff is estopped from claiming any compensation on the ground of shortage of trees in Ext.5 when his own statement contained in Ext.C is to the effect that there is no shortage of stock in the coupe sold to him. Admittedly, Ext.5 was given to the plaintiff for removal of those trees bearing marks. At this stage Rule 12 of the Odisha Forest Contract Rules is required to be seen. It provides that the contractor can commence the work only after the submits the report that the boundaries and the limit of the lot covered by the contract have been duly shown to him before commencement of the felling of trees from the coupe and that being given, the D.F.O. or Range Officer may refuse to allow any work to commence. It no where specifies making it obligatory upon the contractor that he is required to specify the correctness of the trees provided in the coupe sold to him. It no where specifies making it obligatory upon the contractor that he is required to specify the correctness of the trees provided in the coupe sold to him. The provision therein barring the claim of compensation for any loss for the delay in commencement of work for the above refusal has nothing to do in the present case and is not attracted. So Rule 12 as above cannot stand on the way of the claim of the plaintiff. The defendants in the present case have not been able to disprove the factual aspect of the case of the plaintiff that he could not fell 100 numbers of trees and the enquiry report of the A.C.F. has not been proved on the face of the specific evidence of the P.W.1 that he could not remove and utilize those trees. Ext-15 which was furnished by the Range Officer to the plaintiff is again quite significant in this connection. The P.W.1’s evidence is that the marking list used during the enquiry by the A.C.F. on the strength of the representations under Exts.11 and 12 did not contain serial numbers 801 to 900 and this has in no way been challenged. The original of that though was called for production in the Court, the defendants have not done so nor have offered any explanation on that score stating any reason for its non-production. In this connection, the trial Court has gone to analyse the evidence in great detail and has then arrived at the conclusion as regard the factum of said omission and also the unjust deprivation caused to the plaintiff thereby. This Court in view of independent assessment of evidence and for the discussion and reason as above do find every justification to affirm the findings rendered by the trial Court on issue Nos.2 and 3 and so also the answer to the other issues which are consequential. 10.Resultantly, the appeal stands dismissed with cost. The judgment and decree rendered by the trial Court are hereby confirmed. Appeal dismissed.