Siba Kanta Medhi vs Debajyoti Bora and Others

V.K. Khanna, C.J.—This appeal has been filed against the judgment and order of the learned single Judge given in Civil Rule No. 3588/95 on 14.2.96 allowing the Civil Rule filed by Debajyoti Bora, the Petitioner/Respondent, in respect of the settlement of Doboka Sand Mahal under Nagaon South Division, Hojai in favour of Respondent/Appellant Sri S.K. Medhi.

We have heard Mr. B.K. Sharma, assisted by Mr. P.K. Tiwari, learned Counsel appearing for the Respondent/Appellant Sri S.K. Medhi, Mr. B.D. Das, learned Counsel appearing for the Petitioner/Respondent Sri Debajyoti Bora; and Mr. B. Banerjee, learned Addi. Senior Government Advocate appearing for the State of Assam. Mr. Banerjee has also produced before us the original records.

Mr. Sharma, learned Counsel appearing for the Appellant/Respondent Sri S.K. Medhi has urged before us that the order which has been passed by the competent authority in respect of settlement of the Mahal is a direct settlement order Rule 3(iii) of the Assam Sale of Forest Produce, Coupes and Mahals Rules, 1977. In the alternative, it has also been urged that even if it is treated to be an conversion, the view taken by the learned single Judge that the extension could not be granted under Rule 21(3) is not correct in a such as the aforesaid rule only places a prohibition for making extension for a period more then three years and this case extension has only been made for a period of two years.

Mr. B.D. Das, learned Counsel appealing for the Petitioner/Respondent, (sic) however, urged that from the records, it is clear that the case of the Petitioner/Respondent was not at all considered. He has placed reliance on Annexure-4 to the writ appeal and has stated that the aforesaid letter clearly states that (sic) settlement has been made in favour of the Respondent/Appellant only on the (sic) that he could not remove the balance value paid quantity of 505 cub. mtr. of (sic) from the aforesaid Mahal.

We have perused the original records and also the. Note-sheets and from (sic) original recouls it is clear that as far as the Petitioner/Respondent is consered. he had initially offered for settlement of Mahal offering a price of 5% above the price at which the Mahal had been settled during the previous year. Of course, it is true that later on he has raised the aforesaid offer from 5% to 20%. As far as the Respondent/Appellant is concerned, he had offered to pay 15% more than the price for which the Mahal had been settled in the earlier year. It may be noted that there was an application by one Mukhtar Hussain for settlement of the Mahal in his laveur. In his application originally he had not quoted any rate, but later on he was prepared to get the Mahal settled in his favour by offering 25% more over and above the price at which the Mahal had been settled in the earlier year.

After carefully considering the arguments raised by the learned Counsel for the parties, we are of the opinion that this is a case where extension has not been granted and that there has been direct settlement of the Mahal in terms of the provisions of Rule 3(iii) of the aforesaid Rules, 1977. Rule 3(iii) of the Rules, 1977 runs as follows:

Mode of sale. The forest produce shall be sold by any of the following methods:

(i) ....

(ii) ....

(iii) By negotiation direct by Government or on behalf of Government of Assam in Forest Department or in any other manner as decided by Government on its own discretion.

From the aforesaid, it is therefore clear that one of the methods for settlement of the Mahal which has been provided under the statutory rubes is by negotiation and it is implicit under the rules that the aforesaid power will be exercised in public interest, in order to raise revenue and in a fair manner.

The question which therefore arises for consideration is as to whether by settling the Mahal in favour of the Respondent/Appellant, the State Government has acted fairly and in public interest. A bare perusal of Annexure-5 to the writ appeal, which has not been challenged by any of the parties before us, shows that the State Government was getting Rs. 18,750/- more than what it had got in the earlier year, i.e. Rs. 1,25,000/- by settling the Mahal in favour of the Respondent/Appellant, it was getting Rs. 1,43,750/-. However, from the record, it is clear that the previous balance quantity of 505 cub. mtr. for which payment had always been made had not been lifted by the Respondent/Appellant. The short question which therefore arises is that even if the Mahal had been settled in favour of the Petitioner/Respondent, the further gain which the State Government would has got would be slightly over Rs. 6,000/- but, however, by adopting that course the State Government had to return the value of 505 cub. mtr. of sand for which (sic) Respondent/Appellant had already made the deposit with the State Government and admittedly the value of the aforesaid balance quantity of 505 cub mtr. much more than what the State Government would have got by settling the Mahal in favour of the Petitioner/Respondent.

In view of what has been stated above, it is therefore clear that as far as the public revenue is concerned, on totality of circumstances by settling the Mahal in favour of the Respondent/Appellant, the Government would be getting on totally more revenue. As far as the question of fairness is concerned, it has not been disputed that at the first instance the Petitioner/Respondent had only offered 5% more price over the settled price of the earlier year and he had thereafter revised it to 20% which was also taken into consideration. It is, therefore, clear that even if the revised offer of the Petitioner/Respondent has been taken into consideration for the settlement of the Mahal in his favour it would not have brought more Revenue to the State. The decision of the State Government to settle the Mahal in favour of the Appellant on the admitted facts cannot therefore be said to be arbitrary resulting in unfair treatment to the Petitioner/Respondent.

For the reasons stated above, we are of the opinion that the settlement made in favour of the Respondent/Appellant does not suffer from any vice requiring interference by this Court in exercise of its extra-ordinary power under Article 226 of the Constitution.

In the result, the judgment and order passed by the learned single Judge dated 14.2.96 is set aside and the appeal is allowed. However, looking to the entire facts and circumstance of the case, the parties shall bear their own costs.