C.S.P. Singh, J. - (1.) THE Petitioner who is a forest contractor, by this writ petition challenges the order of the Divisional Forest Officer, Bahraich dt. 24 -9 -1971 by which he revoked the auction of boulders and bajri of lot No. 90, 91 and 94 of West Nishangara Range, Katerniaghat, distt. Bahraich made by the Asstt. SDO Nanpara on 4 -8 -1971.
(2.) THE facts necessary for the decision of the writ petition may now be stated. The State of UP in exercise of its powers conferred on it by Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, framed the U.P. Minor Minerals (Concession) Rules, 1963. Rule 23 of the Rules provided for the notification of the area for auction. Rule 24 empowers the State Govt. by notification in the U.P. Gazette to withdraw any area notified Under Rule 23 from the system of lease by auction. Rule 27 prescribes the procedure for auction. Since the issues involved in this petition turn to a great extent on the interpretation to be put up on Rule 27, the same may be reproduced: 27. Procedure for auction - -The following shall be the procedure for grant of auction leases: (a) At least thirty days before the auction is to be held, the Distt. Officer shall notify, in the manner given below, the date, time and place of auction and the terms and conditions of the lease - - (i) copies of a notice giving the above particulars shall be put up on the notice board at the office of the Distt. Officer and at some convenient place close to the area; (ii) a copy of the notice shall be sent to the Gaon Sabha or any other local authority in whose jurisdiction the area is situate; (iii) the notice shall be published by beat of drum in the locality where the area is situate; and (iv) in any other manner considered suitable by the Distt. Officer. (b) The Distt. Officer may appoint any officer subordinate to him as the Presiding Officer of the auction. (c) The details of the area and the terms and conditions of the lease shall be read out to the intending bidders at the time of auction. (d) Any person intending to bid shall deposit Rupees one hundred with the Presiding Officer in advance as earnest money. (e) On completion of the auction, the result shall be announced and the provisionally selected bidder shall immediately deposit 25 per cent of the amount of bid for one year, as security for execution of the lease and due observance of its terms and conditions and an equal amount as first instalment of royalty. The bid shall not be treated as accepted unless confirmed by the State Govt. or such other authority who may be authorised by the State Govt. to grant the lease. (f) The earnest money shall be refunded at the end of the auction except that which was deposited by the provisionally selected bidder, in whose case it will be adjusted towards security. (g) The Presiding Officer shall submit the papers to the Distt. Officer who shall, unless he is himself authorised to grant the lease, forward them to the State Govt. or to the Officer authorised by it to grant the lease. After the auction is held, Rule 28 envisages the grant of a lease to the highest bidder. It, however, empowers the State Govt. to accept the bid of any other person on a consideration of certain circumstances with which we are not concerned at present. Rule 29 provides for the execution of a lease deed in form MM6. This lease has to be executed within a period of one month of the receipt by the bidder of the order about the acceptance of the bid or within such further period as the authority competent to grant the lease may allow him to do. In case such lease is not executed on account of any default on the part of the bidder, the State Government is authorised to revoke the bid and to forfeit the security amount. The power of confirmation given Under Rule 27(e) to the State Govt. or such other authority nominated by the State Govt. was in the present case conferred on the Divisional Forest Officer by Govt. Order No. 3369M/18 -F -M -68, 63 dated 16 -1 -65. The area in dispute was duly notified Under Rule 23 of the Rules for being leased out by auction. During the hearing of the petition, I asked the Standing Counsel to produce the relevant records relating to the matter and the records have been produced. From a perusal of the record, it transpires that the Divisional Forest Officer wrote a letter to the Distt. Officer that the area fell within reserved forest and previously the auction for stone and bajri was being conducted by the Divisional Forest Officer, but in view of Rule 27(b) of the aforesaid Rules, the same had now to be conducted by the Distt. Officer or such other officer as may be appointed by them in that behalf and inasmuch as it had been agreed with the Distt. Officer and the Divisional Forest Officer that the area had to be auctioned, an authorisation may be sent by the Distt. Officer to him to act as the Presiding Officer of the auction, as envisaged by Rule 27(b) of the Rules. The Divisional Forest Officer included the area in the auction list published by him, which fixed 23rd and 24th July, 1971 as the date of the auction. The Distt. Land Reforms Officer, on 23 -7 -1971, wrote a letter to the Divisional Forest Officer that the relevant notification, on the basis of which the auction was being made should be sent to him, so that further action may be taken. The Divisional Officer by his letter dated 23 -7 -1971 sent the relevant notification and sent another letter of date requesting him to take early action in the matter, as the work of irrigation department was in progress in the area and the period of lease had already expired on 30 -7 -1971. The Distt. Officer fixed the date of auction for 4 -8 -1971 and appointed Sri Inder Deo Singh, Asstt. Sub Divisional Officer, Nanpara to be Presiding Officer for the auction. The Range Officer seems to have issued a notice informing the persons interested of the date of auction. Copies of these were sent to Sri M.C. Kapoor, Asstt. Engineer, Irrigation, as also to the Hindustan Company, which as appears from the statement made on behalf of the State Govt. was one of the contractors of the Irrigation Department. The auction was thereafter held by the Sub Divisional Forest Officer on 4 -8 -1971 and the bid of the Petitioner was the highest. He made a total bid of Rs. 91,050/ - for lots Nos. 90, 91 and 94 which are the subject matter of dispute in the petition. The Petitioner thereafter gave a cheque for Rs. 9,150/ - in the name of Range Officer, Katerniaghat and the same was accepted by the Asstt. SDO, Nanpara, distt. Bahraich. This amount was thereafter deposited in the account of the State. It transpires that the Irrigation Department wanted -the auction to be cancelled, for one Malkhan Singh, Executive Engineer, Sarda Sahayak Khand Bahraich, wrote a letter on 13 -8 -1971 to the Divisional Forest Officer, who had the power to confirm the lease that the auction should not be confirmed and the Department was prepared to pay the auction money as the material comprised in lots were urgently required by it. A copy of this letter was also sent to the Conservator of Forests. Another letter was sent by one Sri G.K. Mishra, Superintending Engineer, VIII Circle, I.W. Lucknow to the Chief Engineer for taking up the matter with the State Govt. for cancellation of the notification, for including the area for the purposes of it being leased out and reserve it in favour of the Department. It had also been pointed out in this letter that in the last working season an amount of Rs. 1,20,000/ - had been paid as royalty and in the present season the estimate was in the neighbourhood of Rs. 2,00,000/ -. Thereafter, the matter was taken up before the State Govt. A telegram dated 9 -9 -1971 was sent by the State Govt. to the Distt. Officer Bahraich for taking steps for ensuring that the auction was not accepted by the Divisional Forest Officer. The Divisional Forest Officer had, however, confirmed the bid about four days earlier i.e. on 5 -9 -1971. This bid was, however, confirmed subject to the contractor depositing the full security amount as envisaged by Rule 27(e) of the Rules. This amount was 25 per cent of the amount of the bid. As has already been seen, the contractor had already deposited an amount of Rs. 9,150/ - i.e. 10 per cent of the bid money and after receiving the letter of the Divisional Forest Officer dated 5 -9 -1971, he obtained a treasury challan from the Divisional Forest Officer being challan No. 14 and deposited an amount of Rs. 14,000/ - on 7 -9 -1971 through the challan in the State Bank of India. Thereafter, the Petitioner was given form No. MM6 which is the form on which the lease has to be executed for signature and both the Petitioner and the Divisional Forest Officer who was the confirming authority signed the form. The Petitioner alleges that he went to make the deposit of first instalment on 11 -9 -1971 but the said amount was not accepted by the Respondents and he was also prevented from working the mines. The Divisional Forest Officer seems to have been contracted by the Distt. Officer after he had received the telegram from the State Govt. and the Divisional Forest Officer by his letter dated 7 -9 -1971 informed him that he had already confirmed the bid and further that the acceptance would not create any obstruction in the working of the irrigation Department. The Distt. Officer thereafter wrote a letter on 14 -9 -1971 to the Under Secretary, Industries Department drawing his attention to the fact that the bid had already been confirmed by the Divisional Forest Officer and pointed out that inasmuch as no valid agreement had been executed the State should issue the necessary direction for the cancellation of the lease. The Under -Secretary, Industries Department sent a communication on 14 -9 -1971 to the Distt. Officer Bahraich, asking him to suggest to the Divisional Forest Officer to rescind his confirmation of the lease. Coming now to what transpired between the contractor and the Divisional Forest Officer, it appears from the record, that the Divisional Forest Officer had by his letter dated 10 -9 -1971 written to contractor that the contract should be on water -mark paper and should be stamped and without the necessary stamps being affixed, the agreement will not be executed. It does not appear that the Petitioner was not willing to comply with this order, but the Divisional Forest Officer who seems to have been acting under the orders of the State Govt. issued an order on 24 -9 -1971, which the Petitioner alleges was received, by him in October, cancelled the approval of the auction for lots Nos. 90, 91 and 94, on the ground that the Petitioner had not complied with the legal requirements for confirmation of the bid made by him. The auction in respect of only three lots was cancelled i.e. lots Nos. 90, 91 and 94. Lot No. 93 was excluded. Counsel for the Petitioner has urged that the Divisional Forest Officer had no authority under the Rules to cancel the Lots. In the alternative, it has also been contended assuming that he had such a power, the lease could not be cancelled without any notice to the Petitioner and that the order has been passed on extraneous consideration. The second contention raised by the learned Counsel for the Petitioner is amply substantiated by a decision of the Supreme Court in The D.F.O South Kheri v. Ram Sanehi Singh (C.A. No. 1638 of 1969 Dt. 15 -1 -1970). In that case, the Respondent had purchased the right to cut timber for the period 1 -11 -1965 to 31 -10 -1966 from forest lots in the Mailani and Gola Ranges of South Kheri. On 10 -1 -1967, the Divisional Forest Officer, South Kheri Division, passed an order that the sleepers 'against the tally' dated 29 -10 -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 reinstated against the allotment for 1966 -67 season. By that order the timber which the Respondent claimed had been actually removed by him, with the sanction of the forest authorities under the tally dated 29 -10 -1966, was to be treated as if it was removed in November 1966. One of the contentions on behalf of the State was that since the dispute arose out of the terms of the contract and the Divisional Forest Officer under the terms of the contract had authority to modify any action taken by a subordinate forest authority, the remedy of the Respondent was to institute an action in the civil court and that the writ petition was not maintainable. The Supreme Court did not accept this contention and observed as under: But in the present case the order is passed by a public authority modifying the order or proceeding of a subordinate forest authority. By that order he has deprived the Respondent of a valuable right. We are unable to hold that merely because the source of the right which the Respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ. In view of the judgment of this Court in K.N. Guruswamy v. The State of Mysore : 1955 SCR 305, there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power. The Supreme Court also came to the conclusion that the order could not be passed without an opportunity being given to the Petitioner. Referring to this aspect of the matter, it placed reliance on an earlier decision in State of Orissa v. Dr. (Miss) Binapani Dei : AIR 1967 SC 1269 where in it has been held that even administrative orders which involve civil consonance have to be passed consistently with the rule of natural justice. Their Lordships observed as under: The Divisional Forest Officer in the present case set aside the proceeding of a subordinate authority and passed an order which involved the Respondent in considerable loss. The order involved civil consequences. Without considering whether the order of the Divisional Forest Officer was vitiated because of irrelevant considerations, the order must be set aside on the simple ground that it was passed contrary to the basic rules of natural justice.
(3.) IN the present case, there is no suggestion that any opportunity was given to the Petitioner before passing the impugned order and as such the order of the Divisional Forest Officer revoking the confirmation is patently wrong and deserves to be quashed on this ground alone.;