M. C. JAIN, J. - (1.) THIS special appeal under section 18 of the Rajasthan High Court Ordinance, is directed against the order of the learned single Judge, dated 5. 8. 1976, whereby the demand of Rs. 35,963. 80 made by the Divisional Forest Officer, Udapur, in his Notice of Demand dated 5. 7. 72, in pursuance of the direction of the Chief Conservator of Forest, was quashed, as the same suffered from serious infirmity of not giving the appellant an opportunity of being heard It was further directed by the learned single Judge that the Chief Conservator of Forest shall now determine whether the appellant is at all liable, after giving him an opportunity of being heard. The appellant was directed through his counsel to appear before the Chief Conservator of Forest on 6. 9. 1976.
(2.) THE controversy in this appeal lies in a very narrow compass as substantially the writ petition of the appellant has been accepted. THE appellant's only grievance is with regard to the direction given by the learned single Judge to the Chief Conservator of Forests for deciding the matter afresh. Before adverting to the controversy in the present appeal, it would be proper to recall a few material facts in order to view the matter in its correct perspective. The appellant is a contractor of forest produce. An auction of the bamboos in forest coupe Ramkund No. 4 Jhadol range forest division, was held on 20th of December, 1971 for the working season from 1. 10. 71 to 30th June, 1972. The cutting period was to expire on 31st March, 1972. The bid was finally knocked down in favour of the appellant for Rs. 50, 000/- and an agreement (Annexure 1) was duly entered into between the appellant and the State of Rajasthan. The Divisional Forest Officer, Udaipur, sent a communication dated 23. 4. 72 (Annexure 3) to the appellant directing him not to remove the felled material from the coupe till the enquiry into the alleged illicit felling in the neighbouring area is completed. It was informed that while inspecting his bamboos coupe Ramkund No. 4 on 22. 4. 72 in the presence of his agents, it was noticed that there were illicit fellings of bamboos in the neighbouring area for which he is liable under clause 39 of the agreement. Thereafter, the appellant received the impugned notice dated 5. 7. 72 (Annexure 6) from the Divisional Forest Officer demanding a sum of Rs. 35, 968. 35 paise, by way of compensation for illicit felling to be deposited within a period of 15 days, also recovery was to be effected in accordance with the rules. The appellant was informed that as a result of the enquiry, the forest authorities had come to the conclusion that 14065 bamboos of 5" circumference and 15820 bamboos of lesser circumference have been felled illegally by the appellant. The appellant then made a representation to the Chief Conservator of Forest on 2. 9. 72 (Annexure 7), in which he disputed his liability and maintained that he had not made any illegal felling. He also made a grievance that he had not been able to exploit coupe No. 4 fully and that he was not at all responsible for any damage done to the neighbouring forest area. He also submitted that no enquiry had been made in his presence and that the forest authorities had themselves permitted local inhabitants to cut trees for the domestic use and that he could not be held responsible for not checking that. His representation did not meet with success. So, he filed the writ petition challenging the aforesaid demand. Before I the learned single Judge, it was contended by the appellant that no enquiry was held in his presence and all proceedings leading to the imposition of penalty or determination of compensation were violative of principles of natural justice. The learned single Judge upheld this contention and quashed the demand. The learned single Judge found that the penalty imposed on the appellant was by the Chief Conservator of Forest, which is borne out not only from the counter filed by the respondents but is also borne out from the representation of the appellant dated 2. 9. 72. That being so, the learned single Judge found that clause 39 of the agreement cannot be invoked by the respondents, because that only empowers the Divisional Forest Officer to forfeit the earnest money and determine the balance of amount. On behalf of the appellant, it was urged before the learned single Judge that as clause 39 was out of picture, the only manner in which the respondents could seek to realise any compensation, which they may claim against the appellant, was by resorting to a remedy before a court of law and that it was not open to the Chief Conservator of Forest to himself determine the amount and then seek to realise it. The learned single Judge took into consideration the view expressed by this Court in D. B. Special Appeal No. 308/1970 decided on 2. 3. 72 and found that this contention of the appellant cannot be accepted that the Chief Conservator of Forest was not competent to determine the compensation because power under clause 44 of the agreement clearly vests such an authority in him and this clause 44 of the agreement in question is identical to clause 46 of the agreement in the aforesaid D. B. Special Appeal. Consequently, the learned single Judge quashed the demand and directed the Chief Conservator of Forest as stated above. Dissatisfied with this part of the order of the learned single Judge, the present appeal has been filed.
(3.) WE have heard Shri C. K. Garg, learned counsel for the appellant and Shri D. S. Shisodia, Government Advocate for the State of Rajasthan. Shri Garg contended that clause 44 of the agreement is an arbitration agreement and the position of the Chief Conservator of Forest under this clause is that of an arbitrator. The Chief Conservator of Forest can only exercise his power as an arbitrator when a reference is made to him by both the sides. No such reference was made by any of the parties to the agreement in the present case and without reference having been made by both the sides, the arbitrator cannot exercise any jurisdiction. The provisions of the Arbitration Act would be attracted by clause 44. In the absence of reference by both the parties, the Chief Conservator of Forest will have no jurisdiction and the learned single Judge erred in giving the impugned direction to the Chief Conservator of Forest to determine the matter after giving opportunity of being heard to the appellant, Shri Garg vehemently and strenuously urged that in the absence of reference by both the sides, the only course open to the party, who wants to enforce clause 44 is by resorting to the remedy provided under sec. 20 of the Arbitration Act. He submitted that the direction of the nature given by the learned single Judge is beyond Certiorari jurisdiction and is not in consonance with the provisions of the Arbitration Act, and is thus, unsustainable in law. Before dealing with the contentions of Shri Garg, we may reproduce here clause 44 of the agreement, for ready reference: ;