GANI JOO AHSAN JOO AND SONS Vs. CONSERVATOR OF FORESTS, JAMMU FOREST CIRCLE

JUDGEMENT

(1.) THE Conservator of Forests, Jammu Forest Circle, issued a notice inviting tenders for the right to convert and remove timber from trees marked for felling in Compartments 101 (a), 99 and 100 (b) of Dudu Range, Udhampur Division. The petitioner was the successful tenderer. His tender was accepted by the Government, being the competent authority, under Govt. order No. Fst/33/64 of 1964 dated 18 -4 -1964 (Annexure C to the petition.) Thereafter the parties exectuted a formal deed on 14 -5 -1964 as provided in the tender notice. The deed was signed on behalf of the state by the Coservator of Forests contrary to the directions contained in Government order No. 187 of 1963 dated 7 -3 -63 (annexure b to the petition) which required such deeds to be signed by the Chief Conservator of Forests. Upon the execution of the deed, however, the coupe was handed over to the petitioner and he was allowed to start the work (Annexure p to the petition). He actually worked out the lease but fell in arrears as regards the payment of royalty. The Government started action for the recovery of the arrear royalty as arrears of land revenue as per letter No. 188 dated 14 -4 -1972 addressed by Divisional Forest .Officer Udhampur Division, to Collector, Recovery of Forest arrears, Jammu (Annexure ËœA to the petition). Aggrieved by this action, the petitioner filed the present writ petition challenging the recovery proceedings as ultravires, illegal and without jurisdiction on the ground that the contract was void and the obligations thereunder unenforceable. The petition came up for hearing before a learned single Judge of this court, D. D. Thakur, J, who referred it to a larger bench observing :

(2.) THERE is no dispute that the formal deed is void and unenforceable as it was executed and signed on behalf of the State by an unauthorised person. Even so, argued Mr. Amar Chand on behalf of respondent, a valid and binding contract could be spelt out from the offer and acceptance. That can be so only if the formal deed constitutes the record of the previously concluded contract and does not itself create a contract because if the contract is embodied in a formal deed, other evidence will be inadmissible under section 91 of the Evidence Act to prove the contract. In substance, therefore, the contention of Mr. Amar Chand is that in the present case the formal deed does not itself create the contract, but it is merely the record of a previously concluded valid and binding contract between the parties. The contention of Mr. Mehta on behalf of the petitioner, on the other hand, was that the formal deed constituted a completed contract and not only the record of a previously concluded contract based on offer and acceptance. In any case, he further argued, the contract based on the offer and acceptance also suffered from the vice of not conforming to the provisions of section 122 of the Constitution of Jammu and Kashmir and was therefore unenforceable.

(3.) THE principal question that falls for determination in this case is whether the formal deed itself created a contract or it was merely the record of a previously concluded contract between the parties. Whether an agreement deed is a completed contract or merely the record of a previously completed contract depends on the intention of the parties as deducible from the language of the deed and, where the deed is on a doubtful tenor, evidence may be given of the surrounding circumstances to show how the language of the deed is related to the existing facts.