Hari Singh vs Divisional Forest Officer, Cachar Division and Others

G. Mehrotra, C.J.—In pursuance of a sale notice dated the 20th August 1963 issued by the Divisional Forest Officer, Cachar inviting tenders for the sale of Cane Mahal No. 3 of Cachar Division under Lakhipur Range for the years 1963-66, the Petitioner along with others submitted his tender on the 16th September 1963. The Petitioner offered an amount of Rs. 6.543.00 nP. and the Respondent No. 4 Safique Uddin Ahmed offered a sum of Rs. 6,667.67 nP The Divisional Forest Officer by his letter dated the 5th October 1963 inquired from the Petitioner whether the Petitioner was agreeable to raise his offer to the extent of the higher tendered amount of Rs. 6,667.67 nP to which the Petitioner replied that he was agree able to raise his offer He also invited the attention of the Divisional Forest Officer to the provisions in the sale notice that as belonging to the backward community he was entitled to certain preferential treatment.

The Divisional Forest Officer by his Memo dated the 16th October 1963 agreed to settle the said Mahal with the Petitioner on terms and conditions mentioned in the said order The Petitioner made arrangements to operate the Mahal. But he was informed by Memo dated the 7th January 1964 that on an appeal being filed by Respondent No. 4, the Mahal had been settled with Respondent No. 4 Safique Uddin Ahmed by the Conservator of Forests, Shillong. The order of the Conservator of Forests on appeal has been challenged by the Petitioner by means of this petition under Article 226 of the Constitution.

The order of the Conservator of Forests reads as follows:

I find that there is valid and reasonable grounds for admittance of the appeal petition. Hence the appeal petition is admitted and the Divisional Forest Officer''s settlement order is set aside.

The settlement of the Cane Mahal No. 8 for 1963-66 is hereby made with the Appellant Shri Safique Uddin highest tenderer at his offer of Rs. 6,667.67 nP.

The contention of the Petitioner is twofold. Firstly it is urged that the Conservator of Forests has disposed of the appeal without hearing the Petitioner and has thus violated the principles of natural justice. Under the conditions of the sale notice there was a right of appeal given to the opposite party. There was a lis between the Petitioner and opposite party No. 4. The order of the Conservator of Forest affected the right of the parties and in these circumstances he has to act judicially and dispose of the appeal after hearing the parties. Secondly it is urged that the settlement is to be made by the Divisional Forest Officer and when the Divisional Forest Officer had accepted the tender of the Petitioner and had made settlement with him, he had acquired a right to get settlement which could not be set aside by the Conservator of Forests without giving the Petitioner an opportunity to be heard and thus he is entitled to a relief of mandamus directing the opposite parties not to give effect to the order of the Conservator of Forests and further directing the Conservator of Forests to hear the appeal after giving an opportunity to the Petitioner to represent his case.

In the application it is further stated that the Petitioner has come to know that certain allegations were made against the Petitioner in the appeal which have been accepted by the Conservator without giving the Petitioner an opportunity to meet those allegations.

Mainly two objections have been taken by the opposite party Firstly it is urged that when the Petitioner applied under the sale notice under the terms of the said sale notice the tenderer has no right to get settlement and thus by refusal to settle the Mahal with the Petitioner no right of his has been infringed, which he could enforce by means of a petition under Article 226 of the Constitution. Secondly it is urged that in hearing the appeal the Conservator of Forests has not to act judicially and thus no writ of certiorari could issue quashing his order even if no hearing was given to the Petitioner.

Clause 6 of the Sale notice is as follow.:

6(a) Notwithstanding the fact that the tenders will be received by the Divisional Forest Officer, the orders of settlement will be given by the respective competent authority as shown below:

(i) The Governor of Assam when the value of the tender exceeds Rs. 50,000.

(ii) The Conservator of Forests, Assam when the value of the tender exceeds Rs. 10,000 but does not exceed Rs. 50,000.

(iii) The Divisional Forest Officer, if the value of the tender does not exceed Rs. 10,000.

(iv) In the event of Government passing orders meanwhile changing the limitations and powers of the appropriate settlement authorities, the settlement shall be ordered by such authorities as will be ordered by the Government.

(b) There is no obligation on the part of the officer holding the sale or the Conservator of Forests, Assam or the Governor of Assam to accept the highest or any tender or to assign the reason for rejecting any tender.

(c) Mahal will not be settled with more than one person jointly except in the case of a Co-operative Society, Firms or Joint Stock Company duly registered in the office of the Registrar concerned.

Clause 7(a) of the sale notice is as follows:

7(a) Any tenderer wishing to represent against the orders of settlement must file an appeal affixing Court Fee Stamp of Rs. 7.50 nP. (seven and fifty naye paise) within 15 days from the date of communication of acceptance of the lender to the successful tenderer to the appropriate, authority through the Divisional Forest Officer Cachar Division. The appropriate appellate authority is:

(i) The Conservator of forest, Assam against the order of settlement passed by the, Divisional Forest Officer. Cachar Division

(ii) The Governor of Assam against the orders of settlement passed by the Conservator of Forests, Assam.

(iii) In the event of Government passing orders appointing any other body as the appellate authority over the settlement orders passed by the Divisional Forest Officer. Conservators and Governor of Assam as specified class...the appeals thus preferred shall be filed to such Government appointed body instead of those as specified in the preceding sub-clause.

Any tenderer willing to represent against the orders of settlement passed by the Governor of Assam may file a properly stamped petition for review to the Governor of Assam through the Divisional Forest Officer Cachar Division.

The contention is that the Divisional Forest Officer is not bound to accept the highest tender and not bound to assign any reason for rejecting it and when the settlement officer passed an order for settlement with the Petitioner. It was a provisional order subject to confirmation in appeal. There was thus no final order of settlement by the Divisional Forest Officer in favour of the Petitioner and thus he acquired no right under that order to get settlement.

Reliance has been placed on the case of Parbananda Das Vs. Executive Engineer, Relif and Rebabilitation, Engineering Division and Others In this case the tender was called for by the Executive Engineer Belief and Rehabilitation, Engineering Division, Assam for development work of the Urban Colony at Bongaigaon The Petitioner submitted his tender The Executive Engineer however accepted the tender of the Petitioner The work order was given to the Petitioner. Some appeal was filed against that order to the Government. This appeal was allowed without hearing the Petitioner. It was held by this Court that there being a contract entered into according to the Petitioner, if that contract was subsequently cancelled by the Government, the remedy of the Petitioner was by means of a suit. No right of his was infringed for which he could get a relief under Article 226 of the Constitution. This case is thus distinguishable on facts. In the case of Kumud Chandra Das Vs. Divisional Forest Officer and Others, notice was issued inviting lenders for settlement of forest Mahal. It was held in this case that the order of settlement is an administrative order and unless there was violation of any statutory rides or principles there was no scope for issue of any mandamus even if those terms were violated Dealing with the question of the nature of the order of settlement it was held that it was an administrative order. As to the right of hearing relying upon another Division Bench decision of this Court it was held that the Government was not bound to give hearing to the Petitioner.

Some other unreported decision of a Bench of this Court in the cases of Dharani dhar Kalita v. Stale of Assam Civil Rules Nos. 546 and 543 of 1961 (Assam); Malum Chandra Das v. State of Assam Civil Rule No. 508 of 1961 (Assam); Kuladhar Saikia v. State of Assam Civil Rule No. 509 of 1961 (Assam) and Lakhan Lal Singh v. State of Assam Civil Rule No. 510 of 1901 (Assam) have been relied upon Civil Rules Nos. 508. 509 and 510 of 1961 (Assam) related to the settlement of Sand Mahals. Civil Rules Nos. 546 and 543 of 1961 (Assam) dealt with the question of tenders for the outright sale of marked sal and other trees in the coupes in question The argument in those cases covered a very wide range and the contention of the opposite parties was that the Mahal belonged to the Government The right to settle vested in the Government and if the Government by certain administrative instructions directed settlement with any party, no mandamus can issue In the present case it is not a settlement made by the Government but by the Conservator of Forests, who cannot claim any right to the ownership of the Mahal and he heard the appeal in pursuance of the conditions of the sale notice.

The Senior Government Advocate in his argument himself has relied upon Rule 10 of the rules framed under the Assam Forest Manual for the power to issue sale notice inviting lenders for settlement. Rule 10 reads as follows:

No lease for any fixed period giving the right of removing India rubber cane, kutcha or cutcha, lac. agar ivory or any other forest produce shall be given otherwise than in accordance with the general or special orders of the Conservator who is empowered to authorise sales in respect of such leases, by auction, tender or any other method at such rates as he may decide in his discretion.

If the sale notice is issued under this rule, there is a statutory provision providing for the issue of sale notice and inviting tenders. Thus condition 7(a) of the Sale notice will be binding on the parties. In fact the Conservator of Forests himself acquired jurisdiction to decide the matter under the provisions of the sale notice. The conditions of the sale notice provide that court fee is to be paid on an application for appeal. In these circumstances the principles of natural justice were violated in this case when the Petitioner was not heard and the order was passed by the Conservator of forests behind his back We are dealing with the case where the Conservator of Forests in the exercise of his own rights under the conditions of the sale notice has heard the appeal and it cannot be said that there was no duty cast upon him to hear judicially this appeal, even though the order of settlement may be an administrative order.

In the result, we allow this petition, quash the order of the Conservator of Forests and Send back the case to him to hear the appeal filed by the opposite party No. 4 Safique Uddin Ahmed after giving an opportunity to the Petitioner to be heard.

No orders as to the cost of this petition