S.N.DEEDWANIA, J. - (1.) THESE eight writ petitions under Article 226 at the Constitution raise common questions of law and, therefore, it will be convenient to dispose them by this order.
(2.) THE relevant facts as stated in S.B. Civil Writ Petition No. 916 of 1979 are these. Petitioner Babulal took Kyari Forests on contract for extracting gum during the working seasons 1975 -76 and 1976 -77. For some alleged breach of contract, the security deposit and gum of the petitioner have been forfeited, the non -petitioners are about to auction the gum. The impugned order is contained in Ex. 1 dated May 24, 1979. Before passing this order, no notice whatsoever was issued to the petitioner to give him an opportunity to explain the dispute. Non -Petitioner No. 2 Divisional Forest Officer, Udaipur passed further order on 8 -6 -79 (Ex. 2) imposing a heavy penalty and directed forteiture of the security and auction of the gum toward relization of the penalty. These actions of non -petitioner No. 2 are illegal, unauthorised and without any jurisdiction Three years after the contract, had been performed, the security amount and the gum of the petitioner could not have been forfeited. Both the orders Exs. 1 and 2 are bad being in violation and breach the principles of natural justice. Under the provisions of the Rajasthan Forests Act, the non -petitioner No. 2 was not empowered to pass such orders. The petitioner was given a contract for collecting gum and all sorts of resins were included in the same and there is no distinction so far as salar gum and other gum is concerned. Therefore, the petitioner did not commit breach of any terms of the contract. The alleged irregularity was also not committed by him. Non -petitioner No. 2 had arrived at his finding regarding the breach of contract without any evidence and also he had no jurisdiction under the terms of contract to arrive at such a finding. The non -petitioners in their reply averred that non -petitioner No. 2 has not passed impugned orders under any law but under the terms of the contract. Blazing of salar trees was against the agreement signed by the contractor petitioner. He could not blaze the salar trees under clause 25(b) of the agreement. There is no question of any arbitrary decision as non -petitioner No. 2. has acted according to the terms of the agreement. Anx R/1 the agreement between the parties is very explicit. In short the defence appeared to be that non -petitioner No. 2 was taking action under the terms of the agreement, Anx. R/1 and, therefore, the writ petition filed by the petitioner is not maintainable. The facts in other writ petitions are more or less similar except that they relate to different periods of contract and different areas of the forest and also punitive action taken is different, inasmuch as, the weight of gum seized, the amount of security deposit forfeited and the penalty imposed are varying. One additional factor may be noticed in the writ petition of Mahavir Prasad v. State of Rajasthan and Anr. S.B. Civil Writ Petition No. 1037 of 1979 that a show cause notice was given to the petitioner and he justified his action of extracting the gum even from the salar trees. The impugned orders in this writ petition are Ex. 2 and 3, which relate only to imposition of the penalties. In writ petition No. 923 of 1979 the petitioner was required to pay a sum of Rs. 23061/ - towards the penalty. I have heard the learned Counsel for the parties and perused the record of the case carefully.
(3.) BEFORE considering the preliminary objection taken by the learned Counsel for the non -petitioners, I would like to focus the controversy between the parties, which crystalised during the course of the arguments. Learned Counsel for the petitioner argued that no doubt, under term 31 of the contract, the Divisional Forest Officer has the right to forfeit some part of the earnest money and may also determine the' damages for injury caused to the forest and till the contractor deposits such damages, he is not entitled to take away the forest produce, It is also specific under term 4 of the agreement that the contractor is not entitled to remove any forest produce except that for which he has been granted a contract. The dispute between the parties is whether the petitioner could collect gun from all trees or only from Kadaya (Sterenlia) trees. However all these powers are subject to term 35 of the agreement, wherein, if there is a dispute between the parties about the interpretation of any of the terms of the agreement or on any question which is directly or indirectly connected with the agreement, then all such questions have to be submitted to the Chief Conservator of Forest and his decision is final. The non -petitioners did net adopt this course and did not refer any question in dispute between the parties to the Chief Conservator of Forest. In absence, thereof non -petitioner No. 2 was not entitled to pass police orders in the nature of the impugned orders Exs. 1 and 2 My attention was drawn in this respect to Chief Conservator of Forests and Ors. v. Ratan Singh Hans : AIR1967SC166 . On behalf the respondent it was urged before the High Court, as also before this Court, that where a dispute arose between the Divisional Forest Officer and the contractor, whether the contractor his servants or agents had caused damage in a reserved forest, the question could be decided in the manner appointed in CI. 9 of the contract alone i. e. by arbitration of the officer denominated, and not by the Divisional Forest Officer. In dealing with the validity of the order imposing penalty upon the contractor, the High Court upheld that argument. Rule 15 in the first instance declares that the forest contractor shall be responsible for any damage done either by himself, or his servants or agents it then proceeds to state that compensation shall be assessed by the Divisional Forest Officer whose decision shall be deemed to be that of an arbitrator, subject to an appeal to the Conservator of Forests. The rule does hot confer upon the Divisional Forest Officer authority to, determine, when a dispute is raised, whether damages has been caused in a reserved forest by the contractor, his agents or his servants. The rule only declares that for damage that may be done, by the contractor, his servants or agents, in the forest, the contractor shall be liable; the rule also invests the Divisional Forest Officer with, authority to determine the amount of compensation payable by the contractor, but not to determine whether the contractor, his servants or his agents have committed breach; of the contract. Clause 9 of the contract confers authority upon the Chief Conservator of Forests to adjudicate upon disputes, inter alia, as to the performance or breach of the contract. By CI. 1 read with the Schedule to the contract 'the contractor had to fell or uproot trees marked with a geru band or to fell these oh coupes and Section lines which bear a marking banner impression on the stup buttonds and all Karra over 9 at P.R. whether marked or not. It was the case of the Divisional Forest Officer that the contractor had, contrary, to the terms of the contract, cut trees not market with the geru band. Plainly, the Divisional Forest Officer that the contractor had committed a breach of the terms of the contract, and when the contractor denied the breach, a dispute arose between the parties as to the performance or breach of, the terms of the contract and it had to be referred to the Chief Conservator of Forests. It is corceded, and in our judgment Counsel is right in so conceding, that the expression 'shall be referred to' means 'shall be referred to the Officer, demominated as an arbitrator to decide the dispute.' It was urged however, that by virtue of CI. 6 of the contract, the Forest Contract Rules were made part of the contract, and the Divisional Forest Officer was invested with authority not only to determine the amount of compensation which may be payable by the contractor for damage done in a reserved forest, but also to determine whether the Contractor .or his agents or servants had been responsible for causing the damage. This, for reasons already stated, we are unable to accept. It was then urged that in any event a decision was in fact given by the Chief Conservator of Forest in this case, and that decision complied with the requirements of CI. 9 of the contract. But as already stated, the Divisional Forest Officer passed on order holding the respondent liable to pay compensation for damage done in a reserved forest and assessing the compensation at Rs 8500/ - and penalty at Rs. 500/ -. That order was confirmed in appeal by the Conservator of Forests, and in exercise of his revisional jurisdiction' the Chief Conservator of Forests upheld the order of conservator of Forests'. The Chief Conservator of Forests did not purport to act as an arbitrator, he recorded no evidence, and expressly held that the Divisional Forest Officer was not obliged to refer the case for arbitration under CI. 9 of the Contract. The trial was not of a proceeding in arbitration, but of a proceeding in exercise of supervisory or revisional jurisdiction. If in truth the dispute had to be referred for adjudication to the Chief Conservator of Forests, his decision that he found no reason to interfere with the 'finding of the Divisional Forest Officer' who was one of the parties to the dispute, Cannot conceivably be regarded as an award between two contesting parties. It must therefore be held that the order passed by the Divisional Forest Officer imposing liability for compensation for damage done by illegal fellings cannot be sustained. The second part of the order imposing penalty under Rule 30(1) also suffers from the same infirmity. It is true that under the rule the Divisional Forest Officer had power to impose penalty in a sum not exceeding Rs. 500. But exercise of that power is conditioned by the existence of a breach by the forest contractor of any of the terms of the contract. Where a dispute arises whether there has been a breach of any of the terms of the contract, it is for reasons already stated, to be determined by the Chief Conservator of Forests. That has admittedly not been done. The order imposing penalty under Rule 30(1) must also be set aside. It may be observed that the terms of the agreement between the parties in the aforesaid case were akin to the terms entered into by the parties in these petitions. I have purposely quoted in extenso from the aforesaid authority to show that the controversy before the Supreme Court and before me is similar. ;