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2017 DIGILAW 146 (JK)

Conservator of Forests v. Kashmir Hill Forest Co.

2017-03-20

DHIRAJ SINGH THAKUR, RAMALINGAM SUDHAKAR

body2017
JUDGMENT : Sudhakar, J. This appeal is of the year 2006. The award in this case was passed on 16-4-1993 and the same was challenged by the present appellants before the learned single Judge in CMP No. 195/1993 (AA No. 176/1990), which was dismissed by the learned single Judge after considering rival contention on 3-2-2003. Thereafter, after a delay of 1145 days appeal was filed. The delay was condoned on 6-10-2007 and the appeal was admitted on 7-2-2008. Thereafter the matter has been adjourned from time-to-time. On several occasions the appellant was not present i.e. on 26-5-2016, 20-8-2015, 5-10-2016 and on 6-10-2016 the appeal was dismissed for non-prosecution and was restored on 14-12-2016. 2. Today when the matter was taken up the learned counsel appearing for the appellant pleaded that an agreement of year 1985 is required to be submitted before this Court. He needs further time to produce the same However, after going through the appeal we find that in respect of the award dated 16-4-1993 while filing the appeal i.e. the relevant documents have not been filed as part of memo of appeal despite a specific direction by this Court that appeals should contain all relevant documents and materials. Be that as it may, we have perused the order of the learned single Judge declining grant of relief sought for, which is now under challenge and we propose to hear and dispose of the appeal on merits. 3. Heard the counsel for appellant and the respondent. 4. The brief facts that are required for adjudication of this appeal are as follows :- Respondent was allotted Compartment No. 52-54 of Marmat Range vide agreement dated 27-4-1976 and adjoining Compartment Nos. 47 and 29 were also leased out to the respondent-Firm. It is alleged that the respondent-firm while exploiting the lease caused damage and therefore, the Divisional Forest Officer, Batote issued bill No. 13 dated 27-3-1985 in respect of damage in Compartment Nos. 51-54 and 47/Marmat claiming a sum of Rs. 1,66,274.46. By another Bill No. 18 in respect of damage in Compartment No. 20/Marmat a sum of Rs. 62,583/- was claimed. Along with the claim for damages, penalty of five time was imposed. The details of the amounts, as reflected at internal page 4 of the order of the learned single Judge are as follows :- Bill No. 13 (i) Cost of timber - Rs. 62,583/- was claimed. Along with the claim for damages, penalty of five time was imposed. The details of the amounts, as reflected at internal page 4 of the order of the learned single Judge are as follows :- Bill No. 13 (i) Cost of timber - Rs. 27,712.41 (ii) Five times penalty - Rs. 1,38,562.05 Total - Rs. 1,66,274.46 Bill No. 18 (i) Cost of timber - Rs. 10,430.61 (ii) Five times penalty - Rs. 52,153.05 Total - Rs. 62,583.66 5. It appears that this amount has been deducted from the payment due to the respondent along with interest. The respondent, aggrieved by the unilateral decision of the Divisional Forest Officer, claiming damages and imposing penalty and recovery thereof, pleaded that there was no enquiry and there was ill will on the part of the Officer against the Firm. Therefore, Arbitration Application No. 106/1086 was filed for referring the dispute for arbitration. Award was consequently passed in favour of the respondent-Firm and the award was made rule of the Court in Arbitration No. 290/1988. The department challenged the award before this Court in AA No. 176/1990 inter alia contending as follows :- (i) That the arbitration application and the claim petition were barred by law of limitation. (ii) That the two bills which were under dispute were issued by the objector in the year 1985 while the arbitration application was preferred before this Court in 1990 and therefore, the arbitration application as well as the claims made before the arbitrator were barred by limitation. (iii) That the arbitrator could not extend the time of limitation by referring to the correspondence between the parties regarding the dispute in question. (iv) That the arbitrator committed legal misconduct when he concluded that a fresh agreement in terms of order No. 205-FST dated 22-2-1984 read with SRO 100 dated 26-3-1984 did not in any way diluted the rights of making a reference in a case of arising out of a dispute as per the terms of the old agreement. (v) That the arbitrator illegally considered the effect of fresh agreement under the Order No. 205-FST. (vi) That the arbitrator had no jurisdiction to waive the penalty. (v) That the arbitrator illegally considered the effect of fresh agreement under the Order No. 205-FST. (vi) That the arbitrator had no jurisdiction to waive the penalty. (viii) That the arbitrator again had failed in his legal duty to impose the burden of proof of the issues framed by him on the parts in as much as three issues were silent as to who had to prove them. (viii) That the objector was prejudiced in the matter of defending and projecting its case in a proper perspective. (ix) That the award is not based on any evidence and the arbitrator has wrongly suspected the genuineness of document.' 6. The respondent-Firm filed objections to the proceedings before the learned single Judge. Amongst various issued the core issue that was pleaded before the learned single Judge was that there was no proper enquiry to hold that damage was caused by the respondent-Firm. The respondent, before the learned single Judge, relied upon Annexures PB and PC (not enclosed with memo of appeal), and contended that officers of the appellant have expressed their opinion that penalty should be reduced from five time to two times. The respondent also relied upon its correspondence with the appellants contending that damage and penalty has been wrongly claimed and that claim pertains to 'dry, old and up-rooted trees' which are of no value. In effect, the respondent denied the liability in its totality. 7. The Chief Conservator of Forests however, did not respond to the communications disputing the liability. Since the amount has been demanded and deducted, the respondents in their correspondence requested the authority to drop the claim and refund the amount with interest. The authority finally declined the request on 3-7-1990. In this backdrop, the first issue of time barred claim was considered and the learned single Judge was of the view that from the date of demand and recovery, there has been series of correspondence on this issue and ultimately the claim was rejected only in July, 1990 and the claim was made thereafter. Therefore, arbitration proceedings is not time barred. 8. The next issue that was canvassed before the learned single Judge was that there was no arbitration clause in the original agreement and, therefore, the learned single Judge fell into error in accepting the contention of the respondent. 9. Therefore, arbitration proceedings is not time barred. 8. The next issue that was canvassed before the learned single Judge was that there was no arbitration clause in the original agreement and, therefore, the learned single Judge fell into error in accepting the contention of the respondent. 9. In this regard it is useful to refer to the finding of the learned single Judge where it has been recorded that appellants filed their objections to the application seeking reference of the dispute to the arbitrator on 29-10-1990. In that no serious objection was taken stating that there was no arbitration clause in the agreement. The objections were on merits of the dispute which is recorded at internal page 6 of the order of the learned single Judge. To supplement the finding that there was no objection by the appellants, it has been recorded in the order that objector-Appellants herein submitted before the Court to make reference of the dispute to an arbitrator. At page 7 it has been clearly recorded that during the course of the proceedings the appellants-objectors suggested two names for being considered for appointment as arbitrator and the respondent-Firm accepted the proposed names and consequently the Court appointed the arbitrator on 23-11-1900. In this view of the matter, the plea of the appellants that there was no arbitration clause and hence appointment of the arbitrator was bad, cannot be accepted. 10. That there is a specific arbitration clause referred to and acted upon by both the parties is recorded by learned single Judge. This is not disputed by any document on record. Therefore, the question of arbitrator having no jurisdiction to rule on the arbitration claim, does not arise. 11. The learned single Judge further observed that in the course of proceedings the objector-State produced six witnesses to prove that damage was caused and the claimant-respondent produced six witnesses to establish that no damage was caused. It is further recorded that the witnesses produced by the claimant-respondent were from the Forest Department. It is also recorded that the arbitrator has held that the witnesses of the Forest Department, who deposed in the proceedings at the instance of the respondent/claimant were clearly of the view that no damage was caused by the respondent-Firm. It is also recorded that some of the witnesses of the State-objector-appellant herein have supported the claim and stated that claim of damages is not correct. It is also recorded that some of the witnesses of the State-objector-appellant herein have supported the claim and stated that claim of damages is not correct. Therefore, on fair and impartial enquiry, following the principles of natural justice, the arbitrator has ruled that no damage as alleged was caused by the respondent-Firm. This is a finding of fact on the basis of oral evidence and the records. Therefore, the learned single Judge was not inclined to interfere with the said finding of fact. We find no reason to disagree. 12. The learned single Judge further held that there was no misconduct either on facts or law by the arbitrator. 13. Since, there is no objection raised to appointment of the arbitrator which is in terms of Clause 50 of the agreement, the learned single Judge was of the view that the award cannot be faulted. We find no reason to differ on this finding as well. 14. On the plea of limitation reasons have been given by the learned single Judge, stating as to why the claim is not time barred. Appellants are unable to establish the said plea with any reliable material. In any event, it is a finding of fact which we do not wish to go into once over. 15. In this view of the matter, the learned single Judge has addressed the entire gamut of the case on time bar, limitation and no agreement. In this case, the plea of penalty can sustain only if the demand for damages is sustained. We find no error of law or fact in the finding of the learned single Judge, upholding the award of the arbitrator. We find absolutely no justification to entertain this appeal in the absence of records, which the appellants failed to enclose. 16. We find no perversity of illegality in the proceedings. The learned single Judge has given reasons on all aspects of the matter as to why the award is just. In this appeal, we are not inclined to re-appreciate the evidence as propounded by the learned counsel for the appellants when the appeal is canvassed after such a long time bereft the award and connected document. 17. Accordingly, the appeal is dismissed.