Ahsan Mahammad vs The State of Orissa and Others

R.N. Misra, J.—Plaintiff has carried this appeal against the judgment and decree of the learned Subordinate Judge of Bhawanipatna withholding a part of the relief claimed in the suit.

The short facts relevant to the appeal are the following:

Plaintiff is a Forest Contractor. He took coupe No. 3 of Divisional Lot No. 30 within the Komna Range of the Khariar Forest Division at the auction and entered into a contract agreeing to the conditions therein. The settlement was for a price of Rs. 5,060/- and it was stipulated that the contract would remain valid for 11/2 years ending on 31-3-1967. Plaintiff started operating in the area from December, 1965, but a few months thereafter, he was called upon by the Range Officer of Komna to return the Coupe Permit Book issued to him and accordingly the same was returned on 4-5-1966 and Plaintiff had to stop operating in the area. On 12th of May, 1966, he received a notice from the Range Officer to the effect that several trees had been illicitly felled with twenty chains outside the coupe area for which compensation of Rs. 4,393.12 paise was demanded. Plaintiff filed an objection and before the same was disposed of, on 17-7-1966 Plaintiff received a further notice demanding payment of compensation of Rs. 11,723.69 on the same allegation. Without any enquiry or affording opportunity to the Plaintiff to be heard, the Divisional Forest Officer assessed compensation of Rs. 30,387/- by his letter dated 12th of September, 1966. Similarly, he raised a further demand of Rs. 78,091/- on the basis of a second felling report. By his letter dated 17-10-1966, he demanded payment thereof. At the instance of the Divisional Forest Officer, a certificate proceeding being certificate Case No. 81 of 1966-67 was instituted for realisation of both the sums of compensation. Plaintiff filed his objection in the certificate proceeding and thereafter instituted the suit for cancellation of the certificate.

The Defendants in a joint written statement pleaded that the Plaintiff indulged in illicit felling and, therefore, made himself liable to compensation under Clause 13(8) of the Orissa Forest Contract Rules. The demand for withdrawal of the Permit Book was within the competence of the Range Officer and the demand of compensation is not vitiated, for want of any enquiry. Under the Contract Rules, the Divisional Forest Officer has the authority to raise compensation and the Plaintiff has no cause of action to the suit.

At the trial, Plaintiff examined himself, while on behalf of the Defendants 2 witnesses were examined. Both sides produced a number of documents to support their respective stands. The learned Subordinate Judge on a consideration of the materials came to hold:

... I am to hold that it was within the power of the D. F. O. to assess compensation for the illicit fillings referred to in the felling report dated 1-5-1966 (Ext. H). There is further no provision either in the agreement or in the Orissa Forest Contract Rules to give a prior notice to the Contractor before assessing compensation on him. It, therefore, follows that the compensation of Rs. 30.387/- assessed by the D. F. O. on the Plaintiff on the basis of the first felling report is valid and the Plaintiff-contractor is liable to pay the same.

Coming to the other part of the certificate proceeding, the learned Subordinate Judge came to hold:

... There is therefore, absolutely nothing on record that the illicit fillings of 251 trees referred to in the second felling report (Ext. L) were made by the Plaintiff-contractor himself, or his agents or servants. So it follows that the D. F. O., Khariar derived no authority under Rule 17 or Rule 25 of the Orissa Forest Contract Rules to assess any compensation for these 251 trees, upon the Plaintiff. But by his letter No. 9593 dated 17-10-1966 (vide Ext. 4), the D. F. O. directed the Plaintiff-contractor to pay a consolidated compensation of Rs. 78,091.00/- for 266 trees illicitly felted inside and outside his coupe area. The letter does not specify what is the compensation in respect of the 15 trees felled illicitly inside the coupe area. It is not permissible for the Court to assess proportionate compensation in respect of the 15 trees illicitly felled within the coupe area. That being so, the entire compensation as levied by the D. F. O. on the Plaintiff-contractor on the basis of the second felling report must be held as invalid ....

On the aforesaid findings, the learned Trial Judge cancelled the certificate in part and while vacating compensation of Rs. 78,091/- dismissed the suit in regard to Rs. 30,387/-. Plaintiff has carried the appeal against the rejection of his claim in respect of this amount. The decree of the trial Court against the Defendants has become final with regard to Rs. 78,091/- in the absence of any appeal.

Ext. H is the report of the Forester dated 1-5-1966 wherein he indicated that 106 trees had been illicitly felled within twenty chains of the coupe area and it was stated that single royalty amounted to Rs. 4,393.12 paise and appropriate compensation should be fixed by the Divisional Forest Officer, whereafter the dues should be recovered from the Plaintiff. On the basis of this report, the Divisional Forest Officer (2nd Defendant) communicated the following order to the Plaintiff vide Ext. 3:

Please refer to the above noted interim report, a copy of which has been delivered to you on 12-5-1966. The following amounts of compensation are hereby, assessed for the irregularities noted against each. In this connection, your representation dated 26-5-1966 has duly been taken into consideration.

(1) 108 logs felled illicitly outside the coupe area within 20 chains and logs not removed. A sum of Rs. 11,212.00 is hereby assessed as compensation for this.

(2) 37 trees felled illicitly outside the coupe area within 20 chains logs of which already removed. A sum of Rs. 18,675.00 is hereby assessed compensation for this.

(3) A sum of Rs. 500/- is hereby assessed as compensation for removing 293 logs to Kantabanji without prior permission and against the terms of the agreement and for not being able to show duplicate copies of Permit Nos. 24, 30, 31, 33 and 50 of Book No. 6094 and overwriting in Permit No. 34 of the same book.

Please, therefore, pay a sum of Rs. 30,387.00 (Rupees thirty thousand three hundred and eighty-seven only) immediately for which a chalan in quadruplicate is enclosed herewith. After payment of this amount, the aforesaid 108 logs will be released to you.

Plaintiff maintains that he had filed an objection on receiving the interim report dated 1-5-1966 and had denied the allegation of any felling. He had claimed for an enquiry in his presence in his representation to the Divisional Forest Officer. Though the allegation of felling was disputed and an enquiry had been demanded, the Divisional Forest Officer without making any enquiry and affording an opportunity of hearing to the Plaintiff, passed an order demanding compensation of a heavy sum of money and with a view to recovering the same, sent a requisition for realisation of the amount through the certificate proceeding. D.W. 1, the Range Officer on whose report compensation has been levied, has admitted that he did not send any notice to the Plaintiff or his intention to inspect the coupe. The inspection appears to have been made behind the back of the Plaintiff. D.W. 1 has also admitted that he had not seen illicit felling. He has further stated that it is not within his knowledge whether the Divisional Forest Officer made any spot enquiry. D.W. 2, a Head Clerk of the Khariar Forest Division, spoke about the second felling with which we are no longer concerned.

Clause 25 of the Forest Contract Rules provides:

The forest contractor shall be responsible for illicit fillings within the contract area or within 20 chains thereof and shall pay such compensation as may be assessed by the Divisional Forest Officer in respect thereof.

Plaintiff denied any felling and categorically took the stand that within twenty chains'' of the contract area there had been no felling at all. The foundation giving rise to liability was thus in serious dispute. Plaintiff had suggested that some other contractor had one the illicit felling which was not within the area stipulated in Clause 25. D.W. 1 in his cross-examination has also admitted that fact. Undoubtedly, there was a lis for determination involving two patties. D.W. 1, the reporting Officer, had laid the complaint. Plaintiff, the contractor reported against, denied the allegation. Under the Contract Rules, jurisdiction inhered in the Divisional Forest Officer to determine the compensation. The determination was bound to give rise to civil liability. In these circumstances, we have no doubts that the jurisdiction of the Divisional Forest Officer is quasi-judicial and a reasonable opportunity of being heard in consonance with rules of natural justice should have been afforded in the Plaintiff. Admittedly, the Divisional Forest Officer did not hold any enquiry of that type and as the impugned order under Ext: 3 shows, he had only taken into consideration of the Plaintiff. The objection was a counter story to the complaint. There is no evidence on record or any attempt having been made by the Divisional Forest Officer to determine the truth of the allegations and the counter allegations.

Learned Additional Government Advocate strenuously contended that rules of natural justice were not embodied rules and where there was nothing in the provisions contained in the Orissa Forest Contract Rules which admittedly govern this case for holding of an enquiry, we would not be justified in implanting an enquiry into the process of determination of compensation. In support of his stand, he relied upon the observations of the Supreme Court in the case of Union of India (UOI) Vs. Col. J.N. Sinha and Another, , where it had been stated that Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the Courts should do so. But if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice". The House of Lords in the case of Wiseman and Anr. v. Borneman and Ors. (1971) A.C. 297, dealt with a case of want of natural justice. Lord Guest observed:

It is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final questions affecting parties'' rights and duties, if the statute is silent upon the question, the Courts will imply into the statutory provision a rule that the principles of natural justice should be applied. This implication will be made upon the basis that Parliament is not to be presumed to take away parties'' rights without giving them an opportunity of being heard in their interest....

Lord Reid Added:

... Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For a long time the Courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose.

It is true that the Forest Contract Rules are not statutory, yet since a quasi-judicial adjudication is contemplated, we see no justification to rule out application natural justice. Undoubtedly, the amount assessed by the Divisional Forest Officer is collectable as a public demand. Once the requisition is sent for collection of the amount and the Certificate Officer draws up and signs a certificate, it amounts to a decree and the certificate-debtor becomes obliged to pay up the amount. In these circumstances, we are inclined to agree with the contention raised on behalf of the Appellant that in the absence of an enquiry where the Plaintiff should have been given an opportunity of being heard, the determination is opposed to the fundamental principles of natural justice and, therefore, cannot be allowed to be enforced. The principle indicated by the Supreme Court in the case of Maula Bux Vs. Union of India (UOI), , was sought to be pressed into service. We think, the facts of that case are very different and the ratio laid therein would have no application to the matter before us. Accordingly, the assessment of compensation made by the Divisional Forest Officer being not in accordance with law is not enforceable and the demand before the Certificate Officer, therefore, should not be permitted to be collected.

The appeal succeeds. The certificate for part of the claim for which the suit had been dismissed is also liable for cancellation. The Appellant as Plaintiff in the Court below had paid declaratory court-fee of Rs. 150/. only though court-fee in the suit should have been paid as provided in Schedule I, Article 3 as amended in this State. It is true that objection regarding sufficiency of court-fee was raised neither in the Court below nor here. Section 12 of the court-fees Act confers jurisdiction on this Court in the matter of collection of deficit court-fee in the proceeding in the Court below and u/s 4 of the Act, the memorandum of appeal was not acceptable in this Court unless appropriate court-fee had been paid. Counsel for Appellant, however, has undertaken to pay the deficit court-fee both in the Court below as also in this Court so far as the subject-matter of appeal is concerned. We accordingly direct that the Stamp Reporter shall calculate appropriate court-fee bout in the plaint as also on the memorandum of appeal in regard to the amount involved in appeal and can upon counsel for Appellant to pay the same. If the deficit court-fee is paid within a fortnight from receipt of the demand, the judgment rendered in this appeal shall operate and in the event of failure to do so, the appeal shall stand dismissed without further reference to the Court on the score that the appropriate court-fee on the memorandum of appeal has not been paid. Parties shall bear their own costs.

K.B. Panda, J.

I agree.

Decided accordingly.