Shah, J. - (1.) At an auction held by the Forest Officer, Ram Sanehi Singh - respondent in this appeal - purchased the right to cut timber for the period November 1, 1965 to October 31, 1966 from forest lots in the Mailani and Gola Ranges of South Kheri. On January 10, 1967 the Divisional Forest Officer, South Kheri Division, passed an order that the sleepers "against the tally" dated October 29, 1966 in the allotment of 1965-66 season being "wrong" since they were cut in the month of November 1966, do stand cancelled and that the sleepers be "passed against" the tally after getting the hammer-marks cancelled and be "re-inspected against the allotment for 1966-67 season". By that order the timber which the respondent claims was actually removed by him with the sanction of the forest authorities under the tally dated October 29, 1966 was to be treated as if it was removed in November 1966.
(2.) The respondent moved a petition in the High Court of Allahabad for a writ restraining the Divisional Forest Officer, South Kheri Division, Sub-Divisional Officer, Gola Forest Division and Conservator of Forests (Central Circle) Lakhimpur Kheri, from giving effect to the order cancelling his "sleeper tally" pursuant to the order dated January 10, 1967 and for a writ of certiorari quashing that order and for incidental reliefs. The petition was dismissed by a single Judge of the Allahabad High Court holding that the Divisional Forest Officer had acted in exercise of authority conferred upon him by the terms of the contract, and that the remedy of the respondent was to claim relief in a regular suit for enforcement of the agreement or for damages and not in a petition under Art. 226 of the Constitution. The learned Judge also held that the petition raised questions of fact which could be tried not in a writ petition under Art. 226 of the Constitution but in a suit. He further held that that there was no evidence in support of the plea that the authorities acted mala fide.
(3.) In appeal against the order dismissing the petition, a Division Bench of the High Court of Allahabad reversed the order holding, following the judgment of this Court in K. N. Guruswamy v. State of Mysore, (1955) 1 SCR 305 that where a party interested in a contract claims that he has not received the same treatment and he has not been given the same chance as anybody else he is entitled to move a petition under Art. 226 of the Constitution. The High Court held that the order made by the Divisional Forest Officer in exercise of the statutory authority was liable to be quashed, because it was made on "irrelevant considerations". The Court also observed that since a competent officer duly authorized had already "passed the railway sleepers" and the decision had been given effect to, it was not open to the Divisional Forest Officer to rescind the order. The High Court did not consider the plea that the Divisional Forest Officer acted mala fide. With certificate granted by the High Court this appeal is filed by the Forest Authorities.;