Mohd.Amin Dugga vs State of J&K and Others

The petitioner was allowed to work for department extraction of timber In compartment No. 19 (b) Lidder Division to t he tune of 52450 Cfts

purely on the terms and conditions laid in the technical sanction vide communication No. CC(K)/L/Deptt. Excett. 352122 dated 25.11.2002

issued by respondent No. 3/Chief Conservator of Forest, Srinagar. This allotment was made at the rate of Rs 30 as extract on change and 033

paisa per Km/Cft as transportation change. This allotment was made on the condition that the petitioner will complete the work within a period of

one month after the fulfillment of required formalities under rules and obtaining necessary affidavit from there allottee to the effect that he will

complete the work within the stipulated period as indicated in the communication. The case of the petitioner is that he could not start the work

immediately on account of blockage of the road leading to the Compartment by the locals of the area. The road was cleared after two months and

thereafter the works also could not be started on account of snow fall. The concerned authorities were communication about the factual position.

The petitioner, however, stated to have started the extraction/transportation work in the month of January/February, 2003. after having extracted

1500 qtls of fire wood, the compartment again became inaccessible due to fresh snow fall. After ending March, 2003 about 8000 cfts were

transported and handed over to the respondent/authorities. The petitioner further stated to have approached the Minister with the representation

upon which respondent No.3 was directed to allow the work of the Compartment in terms of the instructions already issued. The respondent No3,

however, instead of complying with the instructions/directions given by the Minister of his representation, directed to accommodate the petitioner

somewhere else in the Division and, for malafide and extraneous considerations, allowed respondent No7 to undertake the balance

extraction/transportation work left over by the petitioner, aggrived of his action of the respondent No3 in allotting the work to the respondent No7

videNo.CFS/0304/D Week/372 dated 14.08.2003 being contrary to the policy decision/instructions of the Government and violation of the

principles of natural justice, approached the Court for seeding its quashment by issuing writ of certiorati with the further direction to the

respondents to allow the petitioner to undertake the extraction/transport of the balance timber from the said Compartment without hindrance, by a

writ of mandamus.

The stand of the respondents, in their objections, is that the petitioner was allowed to extract the timber from the compartment on the condition

that he will complete the said work within a period of one month. The petitioner could extract timber only to the tune of 5954 efts upto ending

March 2003 and no choice was left with the respondent but to cancel th£ authorization issued .in his favour. The cancellation of authorization

was necessitated by in the discharge of legal obligation by the respondents to provide timber to the needy persons. As the stock with the

department had already exhausted to respondent No.7 who within a period effective from 14.08.2003 to 22.08.2003, was able to extract

2500cfts, of timber as evidenced from annexureA to the objections. Further submission of the respondents is that the extraction work was allotted

by the department to the petitioner only on the condition that it will be completed within a period of one month. This being the terms of the

authorization and the petitioner having not completed the work of extraction/transportation within the said period, as a consequence, the allotment

stands cancelled. It is stated that no fundamental statutory right is vested in the petitioner so as to invoke the writ jurisdiction of the court. It is

further stated that the petitioner has suppressed the fact of having filed a civil suit in the court of City Judge, Srinagar. It is submitted that a person

cannot be allowed to pursue two parallel remedies, the writ petitioner is not entitled to a relief in the writ petitioner.

Heard learned counsel appearing for the respective parties and considered the rival contentions in context with the pleading and documents on

record in support thereof.

It may be pointed out at a first clash that the power of the High Court to issue the writs under Article 226 can be exercised for a.twofold

purpose, viz, the enforcement of (a) fundamental rights, as well as of (b) nonfundamental or ordinary legal rights. The jurisdiction to enforce the

fundamental rights arises where the action has been taken under a statute which is ultra vires the Constitution; or where the action taken is

procedurally ultra vires or where the authority, being under an obligation to act judicially, passes an order which is in violation of the principles of

natural justice.

Mr. Attar, learned counsel appearing for the petitioner, vehemently urged that similarly situated person, in pursuance of the policy decision of the

Government, who happened to be authorized to do extraction/transportation work in the year 2002 in different Compartments in the Forest

Department were allowed to continue with the said work even in the year 2003 also. But, in the case of the petitioner, who after having

approached the Minister, obtained an order directing respondent No. 3 to allow the petitioner to undertake the extraction/transportation work of

the Compartment in terms of instructions already issued, respondent No. 3 instead of carrying out the instructions issued by the Minister, for mala

fide reasons, allotted the extraction/transportation work to respondent No. 7with an observation that the petitioner shall be accommodated

somewhere else in the Division. Further submission put across by Mr. Attar is that the action of respondent No. 3 was contrary to the policy

decision/instruction issued by the Government from time to time in allowing the similarly situated persons to continue the extraction/transportation

work and, thus, violative of Article 14 of the Constitution, being discriminatory, unreasonable and infir. According to Mr. Attar, the petitioner was

allowed to undertake the extraction/transport work even after the expiry of stipulated period in pursuance of an order authorizing the petitioner to

extract/transport timber form the allotted Compartment, and therefore legally enforceable right is vested in the petitioner and thus, his allotment

could not be cancelled without issuing a notice and affording an opportunity of being heard in accordance with the principles of natural justice.

The debate addressed by Mr. Attar appears to be attractive, but cannot be accepted for multiple reasons.

It is not in dispute that the petitioner was allowed the extraction/transpiration of timber in the allowed Compartment to the time of 52450 Cfts.

The allotment was subject to the condition that the petitioner would complete the work within a period of one month. This was necessitated

because of the stock in the Department having exhausted and to cater to the need of the public to provide them timber. It is further borne out from

the documents on record that the petitioner could extract timber only to the tune of 5954 Cfts. Upto 31st March 2003. He could not complete the

work and extract the whole timber, as per his commitment in the undertaking and even after the extended period. In order to discharge their legal

obligation to the needy persons to provide timber, the department was left with no option but to cancel the allotment of the petitioner and allow

respondent No. 7 to complete the unfinished job and extract/transport the timber from the allotted Compartment. It is not in dispute that the

petitioner was authorized to extract the timber from the Department. This authorization was subject to a condition that the work would be

complete within a period of one month. The petitioner having not completed the work, the question arises as to whether this authorization vest any

legal or fundamental right to the petitioner to continue the extraction work even in breach of the conditions of such authorization. It is well settled

proposition of law that to enforce the authorization which is not supported by any statutory law, relief under Article 226 is not available. The

authorization admittedly did not have any statutory force but was only in exercise of the discretionary powers of the Chief Conservator of

Forest/Respondent No. 3 Apart from that, it may at the most be taken as a temporary allotment of work to be completed within a stipulated

period indicated in the order and also acknowledged by the allottee in his undertaking.

Mr. Attar, learned counsel appearing for the petitioner, however, submitted that it was a contract awarded to the petitioner for

extraction/transportation of timber. He further submitted that thought there was a condition in the order that the work allotted has to be completed

within a period of one month, even if it is not completed, the allotment cannot be cancelled in violation of the principles of natural justice.

The submission of learned counsel cannot be accepted as t he contract, not supported by any statutory force, cannot be enforced in exercise of

writ jurisdiction under Article 226 of the Constitution. The allotment of a work to the complete within a stipulated period does not vest any right,

muchless, legally enforceable right in the petitioner, alleged to have been violated and sought to be enforced in exercise of writ jurisdiction under

Article 226 of the Constitution when the work is not concluded within the stipulated period and also the extended period and the same stands

cancelled and allotted to some other person. It was purely an allotment of extraction/transpiration of timber by respondent No. 3 in exercise of his

discretionary power which has been cancelled because of the conduct of the petitioner himself for having and completed the work of

extraction/transportation not even within the stipulated period but also the extended period. It is apt to point out that remedy available under Article

226 of the Constitution is an equitable remedy. The principle that he who seeks equity must do equity equally applies in the case of the petitioner

Respondent No. 3 cancelling the allotment of the petitioner under the terms of the authorization was well within its rights and in doing so, no

fundamental or legally enforceable right of the petitioner is violated, as claimed in the writ petition.

Looking to the nature of transaction and dealing in the present case besides the conduct of the petitioner, it cannot be said that there had been

violation of principles of natural justice by not issuing a notice before cancellation of the authorization to extract/transport timber, particularly when

the time was the essence of the performance of the job in the authorization/allotment communication and the undertaking given by the petitioner.

It was next submitted by Mr. Attar that the Government has taken a policy decision to allow the persons t o have been authorized to do

extraction/transpiration work to continue with the work though they have not completed within t he stipulated period provided in the

authorization/allotment and the undertaking obtained from them in this behalf. His further submission is that even the Minister also referred to the

instructions issued from time to time to the Forest department to allow the allottee to continue with the work, in his endorsement on the

representation made by t he petitioner. But contrary to the instructions referred to in the endorsement of the Minister, respondent No. 3 noted on

the representation that the petitioner be accommodated somewhere else in the Division and allotted the balance work to be extracted/transported

by respondent No. 7 in exercise of his powers, arbitrarily and actuated with mala fides. It is well settled that to enforce the instructions it must have

statutory force. That apart, policy matters of the Government have been placed on record or brought to the notice of the court during the course of

arguments. To the contrary, it is more in the larger interest of the public to allot the Compartment and allow the extraction/transportation of the

complete it not only within the stipulated period but also the extended period and thereby impeded the discharge of obligation of respondent No. 3

to provide timber to the needy persons. This contention of the learned counsel is also devoid of any substance to merit acceptance.

Another argument put forth by Mr. Attar learned counsel appearing for the petitioner, is that he had clearly made a mention with regard to filing

of the application in the Court of District Judge, Srinagar for withdrawal of the suit, and therefore, the writ petition is maintainable.

On going through the record of the trial court, it is found that the application for withdrawal of the suit has been made on 19.08.2003 on the

ground that the petitioner (plaintiff in the suit) prays for filing a fresh suit. However, the order permitting withdrawal of the suit came to be passed

by the trial Court on 21.8.2003. The writ petition, admittedly, has been field in the court on 18.8.2003. This clearly shows that the application for

withdrawal of suit was never field before the District Judge on the date of presentation of the suit in the High Court. It is further emanated from the

record that the order of withdrawal was passed on 19.8.2003, when notice was issued and impugned order was directed not to be given effect till

filling and consideration of the objections. When the notice was issued and stay order was passed by the High Court in the Writ Petition, The Civil

Suit was Still Pending before the trial Court, in respect of the same subject matter as was agitated in the writ petition. It is well settled that the

petitioner cannot pursue two parallel remedies in respect of the same matter at the same time and ordinary this rule should prevail.

14 The Apex Court in caser Awadh Bihari Yadav and others Vs. State of Bihar and others ( AIR 1996 SC 122), dealing with the similar matter,

held that a party cannot pursue two parallel remedies in the respect of the same matter at the same time. Ordinarily, the above rule should prevail.

There may, However, be extraordinary circumstances or situations which may warrant a different approach. But no such situation or circumstances

neither emanate from the averments of the petition nor have been pointed out by Mr. Attar, learned counsel appearing for the petitioner, which

could have persuaded the court to deviate from the rule ordinary to prevail in such cases and adopt the course suggested in case of extraordinary

situation. This contention of the learned counsel also, being without any substance, cannot be accepted.

What is, therefore indisputably gatherable from the aforesaid circumstances, when taken in cumulative, is that the discretionary power

exercised by the Competent authority in the given situated excludes arbitrariness and ensures fairness.

The petitioner has not been able to carve out a prima facie case to maintain the writ petition in exercise of jurisdiction under Article 226 of the

Constitution.

In result, there is no merit in this petition and as such, the sane is accordingly dismissed at preliminary stage of admission.