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2015 DIGILAW 91 (JK)

Mohd. Yousuf Wani v. State of J&K

2015-03-11

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J.:- 1. The petitioner in this petition, styled as a writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, is seeking the following reliefs: "In the premises, it is therefore prayed that whatever relief this Hon'ble Court may deem fit in the circumstances of the present petition may be granted in favour of the petitioner and against the respondents. The respondents be directed to grant interest on the admitted amount at Bank rate in favour of the petitioner from the date it fell due till its realization and undertaking given under compulsion may be quashed. The respondents be also directed to fix the rates for sale of timber after extracting the same from Forests concerned at minimum suitable rates so that the extraction of green trees by smugglers is curtailed and be also directed to liquidate the liabilities of contractors concerned in the first instance at the time of making sale of such timber in the interests of justice. Any other writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case may also be passed in favour of the petitioner and against the respondents in the interests of justice and equity." The contents of this petition are more in the nature of an essay, bereft of any sequence of events, relevant details and the legal grounds. What is made out from its contents is that way back in 1995-1996, the petitioner was allotted the work of extraction, transportation and mahaning of timber from Forest Compartments V-9, V-10 and Ri(8-a) by the State Forest Corporation (SFC). The rates were agreed to be fixed by the SFC later on the basis of the project reports to be framed by it. He was paid some money during the execution of the work. In the project reports certain rates were worked out compartment-wise separately for extraction and transportation of the material. The Management of the Corporation, on the basis of inputs of the project reports and deliberating on the matter, by its decision dated 17.09.1997 approved a particular rate structure which was lesser than the one mentioned in the project reports. The rate structure thus approved by the Corporation was not acceptable to the petitioner, thus, giving rise to a dispute about the rates so fixed by the Corporation. The rate structure thus approved by the Corporation was not acceptable to the petitioner, thus, giving rise to a dispute about the rates so fixed by the Corporation. The dispute seems to have been referred to the General Manager, R & D, for settlement of rates. The General Manager, R & D, vide his U.O. dated 19.04.2000, on the basis of the negotiations with the petitioner, finally settled the rate structure, which was accepted by the Corporation by its decision dated 28.06.2002. 2. The case of the petitioner is that consequent upon the aforesaid negotiated settlement, he was compelled to withdraw the court cases filed by him against the respondents and was made to furnish an undertaking to accept the said rates. It is averred that while only 50% of the payments on the basis of the negotiated settlement were released in his favour, the Corporation referred the matter to the Government. The Government constituted a committee which recommended that decision of the Corporation dated 28.06.2002 was justified. Meanwhile, it is averred, the petitioner filed a suit for recovery of money, claiming interest thereon and compensation in lieu of loss caused to him. The particulars of this suit are not given in the petition. The petitioner states to have withdrawn the suit on the assurance of the respondents to settle his claim. 3. In the meantime, it seems that two FIRs under Nos. 38 and 39 were registered in the Vigilance Organization, among others, against the petitioner on the allegation that he had obtained the contract by undue means at exorbitant rates and had paid Rs. 17 lacs as gratification to the then Managing Director. It is stated in the petition that the said amount of Rs. 17 lacs had been given by him through Bank in connection with a business transaction and was returned to him only after a few days. The petitioner challenged the aforesaid FIRs in writ petition OWP No. 145/2005 and claimed compensation for his false implication in the FIRs, agony and loss of business. The said writ petition was dismissed by judgment dated 08.09.2006. 4. Thereafter, the petitioner is stated to have filed another writ petition, OWP No. 474/2007, for release of his money, wherein, according to the petitioner, the Court made a direction to the Corporation to settle the rates in accordance with rules. 5. The said writ petition was dismissed by judgment dated 08.09.2006. 4. Thereafter, the petitioner is stated to have filed another writ petition, OWP No. 474/2007, for release of his money, wherein, according to the petitioner, the Court made a direction to the Corporation to settle the rates in accordance with rules. 5. It is alleged that since the payments were not released, the petitioner had to file another suit before the learned District Judge, Srinagar, for recovery of money, interest and compensation. The respondents compelled the petitioner to furnish an undertaking and withdraw the suit. Consequently, he furnished the undertaking and withdrew the suit. 6. Ultimately, the payments are stated to have been released in favour of the petitioner. But neither the quantum of payments, nor the date of payment thereof is mentioned in the writ petition. 7. To summarize the claims of the petitioner, he alleges that since his payments were unnecessarily withheld by the respondent-Corporation, he suffered loss and, on that count, he claims interest at 18% on the amount and from the date it had become due to him. Second, he claims that since he had furnished the undertaking against his wish and under compulsion, in law, the same cannot be read against him. Third, he claims that whereas the timber extracted by the Corporation from Forests reaches its sale depots at a rate of about Rs. 100.00 per sft, the Corporation sells it at a rate of more than Rs. 500/- to Rs. 1000/- per sft. This, according to the petitioner, is against public interest and the interest of the Government. 8. Respondent No. 2 has filed its reply. Apart from taking preliminary objections to the non-maintainability of the petition, the respondent has denied the assertions made by the petitioner in the writ petition. It is stated the claim put forth by the petitioner was under adjudication before the court of learned Principal District Judge, Srinagar in civil suit titled Mohammad Yousuf Wani v. SFC & Ors., which was withdrawn by him on the ground of out-of-court settlement. Therefore, the petitioner cannot maintain this writ petition. It is averred that the rates approved by the management of the Corporation were agitated by the petitioner who was an Amani/mate contractor. He filed suits before the court of learned Sub-Judge, Kulgam, which were duly pursued by the Corporation. Therefore, the petitioner cannot maintain this writ petition. It is averred that the rates approved by the management of the Corporation were agitated by the petitioner who was an Amani/mate contractor. He filed suits before the court of learned Sub-Judge, Kulgam, which were duly pursued by the Corporation. However, the same were dismissed for non-prosecution by orders dated 29.08.2003 and 27.08.2004. It is further stated that during the course of time, additional markings were conducted in the forest compartments during the years 1998-99 and 1999-2000 which were also allotted to the existing amani/mate contractor. The petitioner also continued to draw the payments from the Corporation on the basis of the approved rates of 1997. The petitioner approached the Forest Minister/Chairman, SFC, for allowing him the norm rates in consonance with the topography. The management did not agree to the norm rates worked out by the R & D Wing of the Corporation because of the reason that all the aspects relating to the matter had not been covered. The respondent has given the details of the process that was involved in the matter together with the inter se departmental correspondences, investigation conducted by the Vigilance Organization, the action taken by various committees etc. 9. I have heard learned counsel for the parties, perused the record on the file and considered the matter. 10. There is no dispute that the matter relates to a contract and the petitioner has been paid the outstanding dues. The first part of the prayer made by the petitioner in this petition concerns his claim of interest on delayed payments. Interest is basically relatable to claim of damages for the delayed payments. A claim of this nature falls within the realm of a dispute of civil nature that requires adjudication only by a civil suit, because, such adjudication would require framing of relevant issues involved, such as, the cause of delay of making payments, the assessment of damages for such delay, the justification for the claim of damages etc. etc., which, in turn, would need examination and consideration of oral evidence to be lead by the contesting parties. The damages in the shape of interest cannot, therefore, be determined in a writ petition. Consequently, a writ petition seeking a mandamus for recovery of interest by way of damages to be determined cannot lie. Law on this point is not res integra. 11. The damages in the shape of interest cannot, therefore, be determined in a writ petition. Consequently, a writ petition seeking a mandamus for recovery of interest by way of damages to be determined cannot lie. Law on this point is not res integra. 11. Coming to the prayer of the petitioner to quash the undertaking furnished by him, the argument is that the effect of the terms and conditions covenanted therein by the petitioner tantamount to compromising his fundamental rights and, since there is no estoppel against fundamental rights, the undertaking cannot be read or used against him. The question whether the undertaking can be read against the petitioner would arise only when someone would allege a breach thereof and/or seek the enforcement thereof against the petitioner. So far there is neither any breach thereof alleged, nor has anyone sought the enforcement thereof against the petitioner. The question about the validity of the undertaking is sought to be raised in abstract. In any case, the validity of an undertaking, on whatever grounds, can be challenged only in a civil suit, of course, subject to just exceptions of law. The prayer of the petitioner cannot be gone into in this writ petition. 12. So far as the prayer of the petitioner that respondent-Corporation be directed to sell the timer extracted by it from the forests of the State at a particular rate, it is not understandable how the petitioner's rights are violated by the fixation of selling rates of the timber extracted by the Corporation or how is the Corporation under any duty to sell the forest produce at a rate to the liking of the petitioner. 13. The writ petition, in the facts and circumstances attendant to it, is wholly misconceived and, therefore, liable to be dismissed. It is, accordingly, dismissed.