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State of Maharashtra Vs. Madhukar Anant Walavalkar - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 563 of 1978
Judge
Reported in1983(2)BomCR390
ActsEvidence Act, 1872 - Sections 115
AppellantState of Maharashtra
RespondentMadhukar Anant Walavalkar
Appellant AdvocateN.D. Hombalkar, A.G.P.
Respondent AdvocateK.J. Abhyankar, Adv.
DispositionAppeal allowed
Excerpt:
contract - estoppel - section 115 of evidence act, 1872 - proclamation issued by government - under terms of proclamation property subject matter of proclamation - conditions in proclamation were all fixed by government - none of subordinate officers of government had right to make even slightest variation in any of terms of proclamation - therefore such officers could not make any representation to plaintiff which militated against any of terms of proclamation - this being position plaintiff's reliance upon any of principles of estoppel is not justified. - - as is well-known, the forests are divided into various coupes. 16, 17 and 18 were clearly shown on the map. (c) the evidence clearly shows that the plaintiff had bargained for cutting and removing 6727 trees from the agreed.....sharad manohar, j.1. this appeal is filed by the state of maharashtra against the decree passed by the learned civil judge (s.d.), thane in favour of the respondent who was the plaintiff in the trial court partly decreeing the plaintiff's suit to the extent of rs. 50,000 with interest thereon. the original plaintiff has filed cross-objections against that part of the decree which denied to the plaintiff a part of the suit claim.2. it will be convenient stating the facts of the case in chronological order. most of the facts are admitted, at least, at this appeal stage whenever there is some dispute relating to the facts we might give indication about that position.(a) the plaintiff is a forest contractor and quite an experienced forest contractor for the matter of that. the contract in.....
Judgment:

Sharad Manohar, J.

1. This appeal is filed by the State of Maharashtra against the decree passed by the learned Civil Judge (S.D.), Thane in favour of the respondent who was the plaintiff in the trial Court partly decreeing the plaintiff's suit to the extent of Rs. 50,000 with interest thereon. The original plaintiff has filed cross-objections against that part of the decree which denied to the plaintiff a part of the suit claim.

2. It will be convenient stating the facts of the case in chronological order. Most of the facts are admitted, at least, at this appeal stage whenever there is some dispute relating to the facts we might give indication about that position.

(a) The plaintiff is a Forest Contractor and quite an experienced Forest Contractor for the matter of that. The contract in question relates to the felling of trees and their removal from the forest coupe in question. There was a project of granting permission for settlement in certain villages in district Thane and for that purpose certain portion of the forest had to be cleared off by felling the trees and removing the trees and shrubberies therefrom. As is well-known, the forests are divided into various coupes. In the instant case, we are concerned with Coupe No. 4 situate in village Panchghar, district Thane. It is no longer in dispute before us that in all 28 plots were included in this Coupe No. 4 and all of them were to be utilised for the purpose of settlement by granting rights to various persons on permanent tenure basis of those plots. But a large number of plots were to be given for the purpose of permanent settlement and the other, the remaining few, were to be given on Eksali leases. It is the contention of the present-appellant (who will be referred to hereafter as the 'defendant') that out of the 28 plots in said Coupe No. 4, plots of Survey Nos. 1 to 11, 13 to 15, 19, 20 and 22 to 28 were to be granted for settlement immediately and for that purpose the work of de-forestation of these plots had to be commenced immediately. The remaining plots, Survey Nos. 12, 16 to 18 and 21 were reserved for Eksali leases and hence the de-forestation was not to start as regards the said plots. We may mention here that the facts that said Survey Nos. 12, 16 to 18 and 21 were not intended to be given for cutting of the trees thereon was not at all in dispute either before us or in the trial Court. The only question which is canvassed by the respondent (who will be referred to hereafter as the 'plaintiff') is as to whether these plots were so demarcated by the defendant as to make him aware of the fact that he got no right to cut trees upon the same.

For the purpose of cutting the trees, the usual practice is to invite tenders from the various contractors who give their bid for the cutting and purchase of trees which are the subject matter of the contract. The contractors have to carry on the operation of cutting in the first instance and they have to remove the trees thereafter in accordance with the rules. For this purpose, the boundary of the Coupe from which the trees are to be cut is required to be fixed in the first instance. Simultaneously, the trees which are subject to cutting are required to be marked. This aspect of fixing the boundaries was completed by October 1970. Likewise, the work of marking the trees that were to be cut was also completed by October 1970. In this appeal, we are concerned with the trees in plots Survey Nos. 16, 17 and 18. It is already mentioned above that the trees in the said plots were not to be cut because those plots were excluded from the contract for cutting. Normally, therefore, there would be no question of marking those trees for cutting, but it is common ground now that while the marking started it was done in a somewhat haphazard manner. Instead of starting the marking from Plots Nos. 1 to 11, thereafter from 13 to 15, thereafter from 19 and 20 and thereafter from 22 to 28, what was done was that the trees on plots other than 16, 17 and 18 were marked uptil No. 1342. No. 15 was not marked for reasons which are somewhat understandable. They started marking on trees on Plot No. 16 even before marking trees on Plot No. 15. The marking on trees of Plot No. 16 started with No. 1343. Trees on Plot No. 16 were marked No. 17 were marked and part of the trees of Plot No. 18 were also marked. The relevant mistake in that behalf was realised by the Officer-in-Charge of the marking while his marking was on the way to Plot No. 18. Upon realising this mistake, he stopped that marking when he finished marking on tree No. 2575. Thereafter the work of marking trees on Plot No. 18 was stopped and marking on trees of Plot No. 15 started, once again from No. 1343. All the trees which were to be cut were marked thereafter. The result was that so far as the Nos. 1343 to 2575 were concerned, there was double marking. The trees which were to be lawfully cut from the plots which were the subject matter of the contract were serially numbered from 1 to 6727. They were from Plot Nos. 1 to 11, 13 to 15, 19, 20 and 22 to 28 as mentioned above. But the trees on Plot Nos. 16, 17 and part of 18 also bore duplicated Nos. 1342 to 2575. The contention of the defendant is that these trees marked with Nos. 1342 to 2575 on Plot Nos. 16, 17 and 18 were not intended to be cut at that time and hence were not intended to be made subject matter of the contract for cutting and removal.

(b) So far as fixing of boundary is concerned, we may refer at this stage itself to the Working Plan devised for the purpose of laying down the rules regarding inter alia, de-forestation and cutting of trees. As mentioned above, when the plots are to be given on contract for removal of the trees on the plots, the plots required demarcation. For the purpose such as this, a Working Plan is prepared for each district and the Working Plan for the district of Thane is already prepared and published by the Government. It purports to be for the years 1969-70 to 1988-89. It is titled as 'Working Plan for the reserved forests of Thane District'. The said Working Plan has made elaborate rules on various aspects involving the question of demarcation of coupes. Chapter 14, section 1 is the relevant part of the said Working Plan for our purpose and Rule 404 of the same runs as follows :

'Demarcation of coupes.---(i) Annual coupes will be demarcated by cutting and clearing 3 metre wide lines and by erecting pillars or posts in the middle of the lines at suitable intervals except where the coupe boundary runs along a big nalla, a wire line or a road. Coupe number and the name of felling series will be written on the pillars on the side a way from the area of the coupe.

(ii) Along the entire periphery of the coupe, i.e. on the edge of the 3 metre cut lines, boundary trees will be so selected as trees on either side will be visible from one another. On the boundary trees two tar bands and a red band in between will be given. The lower tar band will be at breast height and the upper one will be 15 cm. above it. Just below the lower hand, serial number of the tree in Arabic numerals will be painted in tar. Before giving the bands and the numbers, the loose bark will be properly scraped. A list of the boundary trees will be prepared in the following form :---

Serial No. Species Girth at b.h. Remarks

(1) (2) (3) (4)

The boundary trees will not be marked for felling.'

The above Rule is of great significance and relevance for the purpose of deciding the question that arises for our decision in this appeal.

While fixing the boundaries for the coupe, the outer boundaries were fixed by the officers concerned wherever necessary. But even a casual glance at the map, to which we will presently refer, would show that so far as the disputed Plots Nos. 16, 17 and 18 are concerned, a nalla having the minimum width of 35' and maximum width of 150' runs through this coupe and the fact that such a nalla existed was never in dispute. Even a superficial glance at the map shows that these disputed Plots Nos. 16, 17 and 18 lie on the eastern side of the nalla. There are no plots situate to the further east of Plots Nos. 16, 17 and 18. This means that disputed Plots Nos. 16, 17 and 18 are patently segregated plots and it is not possible for anyone to miss the location of these plots if one has a mere glance on the said map. Even this aspect of the factual situation has a very substantial bearing upon the question which we are required to decide in this appeal.

While fixing the eastern boundary, therefore, the officer concerned, following said Rule 404 did not fix any boundary for the western side of Plots Nos. 16, 17 and 18 because the nalla is the natural western boundary. No boundary is necessary for the eastern side. There is no dispute that the boundaries for the other plots were properly fixed and it is also not disputed that the northern and southern boundaries of Plots Nos. 16, 17 and 18, taken together, were properly fixed.

(c) With a view to proceed with the cutting operation, necessary proclamation for auction of the contract for cutting the trees on the relevant plots was issued on 13-12-1970. The proclamation makes on secret of the fact Plots Nos. 16, 17 and 18 were excluded from the cutting operation. In fact Plots Nos. 12, 16, 17, 18 and 21 are the only plots which are conspicuously excluded from the proclamation. Obviously, therefore, only the remaining plots were offered for cutting of trees on the same. The plaintiff filled and submitted his tender for cutting of trees on the said plots. He offered a sum of Rs. 1,37,899/- for that purpose and his tender being the highest one was accepted by the officers concerned. It is pertinent to note that in his tender he has mentioned Plots Nos. 1 to 11, 13 to 15, 19, 20 and 22 to 28 only. It is, therefore, clear that he was fully aware of the fact that the disputed Plots Nos. 16 to 18 were not available to him for cutting of the trees at all and evidently he had not quoted the price of Rs. 1,37,899/- as against the right to cut trees on the said plots. In pursuance of the acceptance of his bid, he executed a Kabulayat on 3-2-1971. This Kabulayat incorporates the agreement between the parties for cutting of the trees on the plots in question. On that date, he also deposited one fourth of the purchase price. What is noteworthy is that even in the Kabulayat he has mentioned only Plots Nos. 1 to 11, 13 to 15, 19, 20 and 21 to 28 to be the subject matter of the contract. It is, therefore, clear that as per the agreement he was fully aware of the fact that he had never the right to cut trees on Plots Nos. 16, 17 and 18. There is no dispute at this stage that the plaintiff took possession of the plots mentioned in the agreement on 7-2-1971. His present grievance, however, is that what was mentioned in the agreement included also that portion which is included in Plots Nos. 16, 17 and 18. According to him, he had no means to be aware of the fact that the area which is covered by Plots Nos. 16, 17 and 18 as per the say of the defendants, forms part of the excluded area as mentioned in the proclamation or Kabulayat. In other words, his contention is that he did not know as to which area was covered by Plots Nos. 16, 17 and 18 even till this date but, all the same, he insists that the area which is now described as Plots Nos. 16, 17 and 18 is not that area and that this area was included in the area for which he had bargained. We have to examine whether this contention can be accepted.

For the purpose of persuading the Court to accept the above contention, the plaintiff relied upon the incident dated 8-2-1971. The incident is nothing but the so-called protest lodged by the plaintiff as regards the part played by the defendants/officers on 8-2-1971. He wrote the so-called protest-letters to the Conservator of Forest. It is at Exh. 60 in this proceeding. The protest relates to his grievance that he was not given possession of the trees of the girth as detailed in columns Nos. 8 to 16 of the proclamation in general and of columns Nos. 9, 12, 13, 15 and 16 of the same in particular. In other words, his grievance was that although he got possession of the correct numbers of trees which were mentioned in the proclamation, the trees did not have that girth for which he had bargained. According to him he had expected trees of the girth mentioned in Columns Nos. 8 to 16 and he had not got trees of that girth. What is noteworthy is that there is not an iota of word in the said so-called protest-letter saying that the trees which are situate in Plots Nos. 16, 17 and 18 were the trees for which he has bargained. In fact he does not mention anywhere in the letter that he was unable to locate Plots Nos. 16, 17 and 18. He does not even state that he was disallowed from taking possession of trees on Plots Nos. 16, 17 and 18 by the officer on the ground that Plots Nos. 16, 17 and 18 were excluded from the contract. He makes no grievance of the fact that he was unable to distinguish Plots Nos. 16, 17 and 18 from the remaining plots in the coupe.

(d) The balance of the amount was paid by the plaintiff/contractor on 23-2-1971. It appears that even before he paid this balance he had cut some of the trees and grievance is made in this behalf by the defendant. However, that grievance is not the subject matter of the present litigation and hence we do not propose to refer to the evidence laid by the parties in that behalf.

The cutting operation relating to the trees on the undisputed portion was completed on 1-3-1971 and the panchanama in that behalf was made. We may state here that there is no dispute about the correctness of the panchanama. The panchanama mentions the various boundaries as also the result of the cutting operation. Heavy reliance was sought to be placed on the panchanama by the plaintiff to show that there is nothing in the panchanama to indicate that Plots Nos. 16, 17 and 18 were properly demarcated from the plots available for the cutting operation. We will refer to this aspect of the matter a little later.

On 5-3-1971 the plaintiff executed a receipt as regards the trees of which possession was taken by him and this receipt is the first document which seeks to strike a note of protest of some relevance. He has stated here as follows :

The Forest Department has now brought to my notice that about 1800 trees and shrubs in the said coupe are not included in the Coupe. In that respect I want to state that the said trees and shrubs are within the limits of the said Coupe and before filling in the tender and at the time of sanctioning the tender, the Forest Department had made it known that the said trees and shrubs are in the said Coupe and it is after relying on the same, that I filled in the said tender. Now I have been misled by stating that the said trees and shrubs are not included in the said Coupe. Even if it were made known to me at the time of the sanctioning of the tender or before that the said trees and shrubs do not come in the said Coupe, I would not have filled in the said tender.

Hence, it is my say that the above trees and shrubs are the materials of this very Coupe and that I should get those trees and shrubs. But I do not get such full possession. Therefore, I have taken the possession of the said Coupe without prejudice to my right on the said trees and shrubs.''

On 9-3-1971 thereafter he wrote a letter to the Conservator of Forest and for the first time made a grievance about the absence of the boundary mark so as to enable the location of Plots Nos. 16, 17 and 18. In the said letter he does not refer to the nalla on the western side of the three plots which is evidently the natural boundary for the said plots. But he states that the boundary was to denoted by the tar-band on the trees on the boundary line and since no trees were marked by the tar-band along the western boundary of the said plot, he contended, the said plots must be deemed to be the subject matter of the contract taken by the plaintiff. He contended that he had taken possession of the remaining trees but by him without prejudice and further that he had the right to fell and remove the trees which are to east side of the nalla evidently implying thereby the trees in Plots Nos. 16, 17 and 18. But it is noteworthy that even in this letter he does not let out as much as a murmur that the trees which he complains of are not on Plots Nos. 16, 17 and 18. He doesn't even contend that it was not possible for him to locate the situation of Plots Nos. 16, 17 and 18. He does not state that though he was not entitled to the trees of Plots Nos. 16, 17 and 18, since Plots Nos. 16, 17 and 18 are themselves undetectable he was entitled to remove the trees on those plots. There was some internal correspondence between the various officers of the Department. As a sequel of the same on 9-2-1973 by the letter (Exh. 44) the Under Secretary, Revenue and Forests Department, rejected the plaintiff's contention. On 30-3-1974 a notice as required by section 80 of the Civil Procedure Code was given by the plaintiff re-iterating the contentions and the pleas once again and the present suit was filed by him on 29-7-1974. The reliefs that were prayed in the suit were :

(a) declaration that the plaintiff was entitled to the trees standing on Survey Nos. 16, 17 and 18 of village Panchghar in Shahpur Taluka of Thane District;

(b) in the alternative for declaration that the State was estopped from challenging the plaintiff's right to the said trees on Survey Nos. 16, 17 and 18.

(c) for recovery of a sum of Rs. 1,00,000/- from the Government as damages or compensation.

Briefly speaking, the plaintiff's contention were that:

(a) there was no demarcation of Plots Nos. 16, 17 and 18 from the plots which were made available for the contract of the cutting operation;

(b) the trees on the said plots were marked for cutting in the same manner in which the trees on the other undisputed portion of the lands were marked ;

(c) on account of the above two circumstances, the plaintiff was misled by the officers concerned into believing that the said trees on Plots Nos. 16, 17 and 18 were available for the plaintiff for being cut and removed and it is because of this belief engendered in the mind of the plaintiff that he gave such a high bid as the one for Rs. 1,37,899/-; and

(d) in the above-mentioned circumstances the defendant was estopped from contending that the plaintiff was not entitled to cut and remove the trees on Plots Nos. 16, 17 and 18.

The defendant filed its written statement and pointed out that the plaintiff was at all the times aware of the fact that he was not entitled to cut and remove the trees on Plots Nos. 16, 17 and 18; that there was no reason for the plaintiff to be unaware of the exact location of Plots Nos. 16, 17 and 18 because the nalla running to the west of the said plots was the natural boundary of the said plots. It was pointed out that the numbering of the trees on Plots Nos. 16, 17 and 18 was just a mistake and that the plaintiff was fully aware of the said mistake which was evident from the known duplication of the numbering. Every allegation of misrepresentation or misleading was denied. It was further pointed out that the plaintiff had cut and taken away the number of trees which he had bargained for and he had no right to make any grievance at all.

(e) On these pleadings, issues were framed and the parties went to trial Issue No. 1 is as follows :

'Does plaintiff prove that the trees standing over Survey Nos. 16, 17 and 18 in village Panchghar in Shahpur Taluka were included in this coupe?'We have set out the above issue because if the issue is read as it is, it can be said that it does not convey the correct contention of the plaintiff. The plaintiff could not have contended that the trees standing on Survey Nos. 16, 17 and 18 were not included in the coupe. There was no dispute that Survey Nos. 16, 17 and 18 were there in the coupe. Further, there could not exist any legitimate dispute on the question that by an express agreement the trees on Plots Nos. 16, 17 and 18 were excluded. However, it appears that the parties understood the contention of the plaintiff rightly and led the evidence on the same, the contention being that though trees on Plots Nos. 16, 17 and 18 as such were not to be cut, still the Forest Officers concerned never gave any indication to the plaintiff as to where Plots Nos. 16, 17 and 18 were situate and further that he was misled by the markings made on the trees on Plots Nos. 16, 17 and 18.

The second issue relates to the representation allegedly made by the officers of the Forest Department to the plaintiff and issue number three relates to the estoppel pleaded by the plaintiff against the defendant. The parties led the evidence on these issues. After examining the said evidence, the learned Judge recorded a finding that Plots Nos. 16, 17 and 18 were not the subject matter of the contract at all. He held further that by virtue of certain facts such as marking on the trees on Plots Nos. 16, 17 and 18 and the absence of laying down the specific boundaries around Plots Nos. 16, 17 and 18 without which boundaries, the exclusion of the said plots from the subject matter of the contract was physically impossible, the plaintiff was misled into believing at the time of entering into the contract that the trees on Plots Nos. 16, 17 and 18 were also the subject matter of the contract. The learned Judge does not seem to have addressed himself to the question as to whether the plaintiff had been allowed to cut the number of trees for which he had bargained as per the contract or not. The only question considered by the learned Judge was whether the plaintiff was misled into believing that the trees on Plots Nos. 16, 17 and 18 were also available to the plaintiff for cutting or not and on that point he recorded the finding in the affirmative in favour of the plaintiff. He, therefore, held that some sort of estoppel operated against the defendant and that, hence, the plaintiff was entitled to recover damages from the defendant in that behalf. However, on the question of quantifying the damages, the learned Judge seems to have decided to strike some kind of via media. He, therefore, decreed the plaintiff's suit for a sum of Rs. 50,000/- with interest at 6% per annum from the date of suit till realization with no order as to costs.

3. Mr. Hombalkar, the learned Assistant Government Pleader, invited our attention to the various aspects of the evidence which, according to him, proved beyond doubt that :

(a) the plaintiff had never bargained for cutting trees on the disputed Plots Nos. 16, 17 and 18;

(b) the disputed Plots Nos. 16, 17 and 18 were clearly shown on the map. The map was drawn in conformity with the rules and the plaintiff had seen the map and was aware of the position of the disputed Plots Nos. 16, 17 and 18 from the map. He was aware of this map and of the position of the plots at all the relevant times. It was, therefore, futile on the part of the plaintiff to contend that he could not locate Plots Nos. 16, 17 and 18 which were not meant for his cutting operation.

(c) the evidence clearly shows that the plaintiff had bargained for cutting and removing 6727 trees from the agreed plots. There was no dispute that he had removed all those trees from the undisputed plots save, perhaps 172 trees; but the balance of those 172 trees was also reasonably explained, if one refers to the letter dated 20-3-1971 written by Shri B.N. Karnataki, Sub-Divisional Forest Officer to the Forest Officer. Contention therefore, was this aspect would by itself falsify the plaintiff's contention that he was entitled to cut anything more than the contracted number of trees and to cut the trees also on the disputed Plots Nos. 16, 17 and 18.

4. Mr. Abhyankar, the learned Advocate appearing for the defendant, on the other hand, contended that the dispute was not relating to the question as to whether the plaintiff was given right to cut trees on Plots Nos. 16, 17 and 18 at all. He contended that the real dispute was as to whether it was open for the defendant now to contend that the plaintiff was made aware of the exact situation of the Plots Nos. 16, 17 and 18. In this connection, he invited our attention to the panchanama (Exh. 42) and pointed out that the panchanama fully vindicated the plaintiff's contention, namely, that between the undisputed plots and the disputed Plots Nos. 16, 17 and 18 there exists no boundary. Admittedly, the trees on Plots Nos. 16, 17 and 18 were also marked for cutting in the same manner in which the trees on the undisputed plots were marked. Mr. Abhyankar pointed out that this position existed even on the date when the proclamation was issued by the Forest Department. He contended that mere fact that Plots Nos. 16, 17 and 18 were excluded under the proclamation as also under the Kabulayat did not mean that the plaintiff was aware of the exact location of Plots Nos. 16, 17 and 18. He could be said to be aware of the same only if there existed a boundary between the disputed and undisputed plots erected as per the rules. He invited our attention to some portion of the evidence of the plaintiff and defendant and contended that even according to the defendant the boundary could be denoted only by the markings of tar-band on the trees on all sides of the boundary. Admittedly, this marking on the trees along the side of western boundary of the three undisputed plots was not made. He also relied upon the panchanama made after the cutting work was complete and pointed out that as per the panchanama the western boundary of the disputed plots is not marked by the department at all. He contended that so far as the nalla was concerned it no doubt divided the undisputed plots from the disputed plots. But he pointed out that the nalla exists also in the midst of the undisputed plots. His contention, therefore, was that the nalla could never be considered to be the boundary. At any rate, he contended, the plaintiff could not be imputed with the knowledge of the nalla being the boundary between the disputed and the undisputed plots.

As a second line of argument, Mr. Abhyankar contended that this was clearly a case of estoppel, if not, a promissory estoppel, operating against the defendant. He particularly relied upon Condition No. 15 of the Conditions of Tender in which it is stated that only the boundary of the coupe shown on the site shall be deemed to be the correct boundary. Relying upon this stipulation in said Condition No. 15, Mr. Abhyankar contended that as per the general rule of interpretation of documents, when there is a conflict between areas and boundaries, the boundaries must prevail. Likewise in the instant case, the boundary is uncertain. This means, according to him, that the undisputed plots cannot be said to be outside the said boundary and if they are not outside the boundary the plaintiff is entitled to cut the trees on the same and the defendant is estopped from questioning the plaintiff's right in that behalf.

After carefully examining the entire evidence we are satisfied that Mr. Hombalkar's contention has got to be accepted. We are of the view that the plaintiff's contention is wholly unfounded and his grievance is firstly an imaginary grievance and secondly a clear after-thought.

5. We have already seen that the plaintiff could never contend that he was entitled to cut trees on the disputed Plots Nos. 16, 17 and 18. The very agreement which he has entered into as evidenced by the Kabulayat (Exh. 41) puts the question beyond any pale of doubt. The proclamation excluded Survey Nos. 16, 17 and 18 from the contract. The tender submitted by the plaintiff himself specifically excludes Plots Nos. 16, 17 and 18. The Kabulayat executed by him follows the same pattern and excludes said Plots Nos. 16, 17 and 18 from the operation of the contract. As a matter of fact, Mr. Abhyankar himself contended that directly he did not make any claim to trees on Plots Nos. 16, 17 and 18 because if it was proved that he was conscious of the exact location of Plots Nos. 16, 17 and 18 then he could not lay any claim to the trees on those plots because such a claim would be ruled out by his own Kabulayat. But the gravamen of his contention was that the defendant did allow the plaintiff to be aware of the exact location of the situation of Plot Nos. 16, 17 and 18 and misled him to believe that the trees on those plots were available for him for cutting and removal.

To our mind, this contention must be rejected. In the first place, to the Kabulayat is annexed a map which shows the situation of the various plots. The fact that the map was annexed to the Kabulayat at the time of the execution of Kabulayat by the plaintiff cannot be denied by him. In the evidence, he has stated as follows :---

'The plan of the coupe from which the trees are to be auctioned is usually annexed to the agreement. In the plan on page 18 of Ex. 41 Plots Nos. 16, 17 and 18 are included'.

It is therefore, futile on the part of the plaintiff to contend that the map or plan was not a part of the Kabulayat or that he had not seen the map. Moreover, he has not even stated that he has not seen the map or that the map was not annexed to the Kabulayat. As a matter of fact, there exists an endorsement on the map stating that the marking on the trees on Plots Nos. 16, 17 and 18 are cancelled. But the plaintiff had denied the fact that any such endorsement existed on the date when he signed the Kabulayat. This is what the plaintiff says in this behalf :

'The endorsement made on this plan to the effect that the markings on the trees in Plots Nos. 16, 17 and 18 is cancelled was not made when I signed on the said map'.

We do not wish to enter into the controversy whether the endorsement was made prior to the plaintiff's signature on the Kabulayat or after his signature. For the present, we assume that what the plaintiff says is correct and that the endorsement in question on the map did not exist on the date when the Kabulayat was executed by the plaintiff. But the point is that even without the endorsement, by a mere glance at the map, one can see that the disputed Plots Nos. 16, 17 and 18 are noticeably distinct and segregated from the remaining undisputed plots. This is so because the nalla of the minimum width of 35' at some places and the maximum width of 150' at some other places flows separating the disputed plots from the other undisputed plots and a sheer-glance at the map would give the plaintiff the requisite information about the location of the plots which are excluded from the contract. It is true that the trees on those Plots Nos. 16, 17 and 18 were marked in the similar manner as were the trees on the undisputed plots were marked. But again admittedly, the numbers on the trees were duplicated. The plaintiff himself contends in his plaint itself that there was duplication of numbering of the trees and that the numbers 1343 to 2575 found place on the trees on the disputed plots as well as on the trees on the undisputed plots. Any reasonable person would, therefore, notice, in the first place, by looking at the map, that the three plots which were to be eastern side of the nalla and which started from the southern portion of the coupe were the plots which were excluded from the operation of the contract. All other plots might be included but not these. With the help of the map and having guidance of the nalla therefore, any reasonable person could locate the exact situation of the said three disputed Plots Nos. 16, 17 and 18 and the trees on those plots could not be cut by the contractor concerned. The mere fact that the trees were marked would not give the right to the contractor to cut them because it is not the marking on the trees that gives him the right to cut. What gives him the right are the terms of the contract. The terms in the contract specifically state that he was entitled to cut trees only on Plots Nos. 1 to 11, 13, 15, 19, 20 and 22 to 28. This means that the remaining plots are specifically excluded. It is, therefore, futile on the part of the plaintiff to contend that he was misled into believing that the trees on the disputed plots were also included in the contract.

The contention that there existed no boundary between the disputed and undisputed plots and the reliance upon the relevant panchanama for that purpose are equally fallacious. We have already set out the relevant Rule No. 404 of the Working Plan. The Rule leaves no room for doubt that when a boundary of a big nalla or a wire line or a road exists, an artificial boundary as required by the Rule need not be laid down. When there exists a natural boundary, the question of adding a further un-natural boundary should not arise. This is probably one of the instances where the rules are not inconsistent with commonsense. Now in the instant case, it is an admitted fact that there exists a big nalla between the undisputed plots and disputed plots. There was, therefore, no question putting another artificial boundary between the same.

The position in this behalf is made clear by the evidence of the defendant's witness, Shri Kulkarni. In his Examination-in-Chief, he has stated as follows :---

'In this map no boundary marks are shown by the side of the streamlet because, as per the Working Plan Code no such marking has been shown in respect of natural boundaries such as streamlet'.

Even in the cross-examination, what has been elicited from him is as follows :---

'I had seen Working Plan Code prepared by S.P. Jadhav, D.F.O. In 1947 wherein it is stated that streamlet should be taken as natural boundary of Government Forest. This working plan was for Thane district. That plan is in our office'.

6. Even the plaintiff's evidence is significant on this point. In his cross-examination he has stated as follows :---

'I had fully read all contents of proclamation along with the schedules Ex. 39. It is not true that there was no coupe bearing No. 4 but that plots in all 23 together were allotted as Block No. 4. It is true that a marking list and the plan had to be prepared before publishing the proclamation. The information regarding the number of trees to be sold and the marking list has been given in the proclamation. It is true that as per the proclamation Plots Nos. 12, 16, 17, 18 and 21 were not mentioned'.

His further statement in the cross-examination is as follows :---

'It is true that marking numbers from 1344 to 3406 were repeated on the trees, but I noticed this subsequently. I did not notice and it did not strike me while inspecting the coupe about the repetition of the number. I carefully inspected all the trees from all the plots 1 to 28. I noticed this repetition of numbers when I had gone to take possession after deposit of 1/4th amount. It is not true that I did not go to the coupe before submitting my tenders. I did not feel when I found repetition of numbers that there is some glaring mistake'.

A little later, he has further stated as follows :

'It is true that the streamlet flows south-north as well as east-west. It is true that whatever a plot was touching this streamlet there were no markings about the boundary on the trees.''

The fact that the Department treated the nalla as a boundary is also clear from the internal correspondence between the officers. In the report given to the Divisional Forest Officer, the Sub-Divisional Forest Officer has stated as follows :---

''This nalla also form the eastern outer boundary of coupe of S. Nos. 3 to 5. It is all along this coupe boundary nalla, that, the outer coupe boundary is not laid out on the ground by giving tar bands etc. The contention of Divisional Surveyor is that, all the Survey Nos. are previously marked on the ground by boundary stones or boundary cairns. Moreover, this nalla portion forms the outer natural boundary of the coupe and as such he did not lay out this boundary on the ground.''

The plaintiff gives explanation about this nalla as boundary in his deposition. In this connection he states as follows :

'I say the streamlet was not natural boundary because the trees on either side were marked and for no other reason.'

This means that he was aware of the fact that Plots Nos. 16, 17 and 18 were situate beyond and to the east of the nalla. He does not state anywhere that he was not aware of the exact situation of the plots and the above statement gives clear indication of the fact that he was aware of the situation. His only contention is that because the trees on the plots on the western side of nalla which were the undisputed plots were marked and likewise the trees on the disputed plots on the eastern side of it were marked, he claimed the right to cut trees on the disputed plots.

Now this evidence clearly cuts across Mr. Abhyankar's contention based upon Condition No. 15 in the Conditions of Tender. Mr. Abhyankar's contention was that because there was no boundary fixed segregating the disputed plots from the undisputed plots, the plaintiff became entitled to cut the trees on the disputed plots also. In other words, according to him even when he could see the natural boundary for the disputed parts in the form of the streamlet, still he was entitled to ignore the same and to cut the trees even beyond the boundary.

To our mind, even his contention that the streamlet was not the natural boundary because the trees on either side were marked cannot be accepted because the plaintiff clearly knew that he was entitled to the trees on the plots which were the subject matter of the contract, not to all the trees which were marked. In other words, the marking as such did not really give him the right. If there were trees on the undisputed plots which were not marked he could not cut them. But the converse was not true and he had no reason to believe that it was true. What he conveniently believed was the converse, namely that all those trees which were marked were permitted to be cut. To our mind, this belief is a convenient belief but cannot be said to be an honest belief or a legitimate belief. The plaintiff has no jurisdiction to assume that merely because the trees were marked he was entitled to cut them as if they formed part of the contract.

7. Moreover, the immediate reaction of the plaintiff is also of a telltale character. In his evidence he has clearly stated as follows :

'On 8-2-197 itself I realised that possession of Plots Nos. 16, 17 and 18 would not be delivered to me and that I will have to approach the Court. I realised on 8-2-1971 itself that if possession of Plot Nos. 16, 17 and 18 is not delivered to me then I would suffer a loss. I did not feel like cancelling the agreement when I realised that I would not get trees in the three plots and I would be at loss on 8-2-1978 itself'.

He has no doubt given some explanation for not cancelling the agreement immediately. The explanation cannot convince anybody because on his own showing all that the Conservator of Forest had assured him was that he would look into the dispute. No promise was given to him that whatever the plaintiff said would be swallowed by the conservator hook, line and sinker.

8. That apart, the immediate reaction of the plaintiff is in fact not the one which he innocently wants the Court to believe. On the plaintiff's own showing, he lodged a protest on 8-2-1971 immediately after he took possession of the undisputed plots. That protest is to be found in the letter dated 8-2-1971. Significantly enough, there is not one word about his right to cut trees on Plot Nos. 16, 17 and 18. It is not his contention that he was entitled to possession of the plots which were to the east of the nalla. It was not his contention in the said letter dated 8-2-1971 that he could not locate as to where Plot Nos. 16, 17 and 18 were situate. All that he contended was that he had not been given trees of the girth mentioned in Columns Nos. 9, 10, 12, 13, 15 and 16 of the proclamation. In other words, he had no dispute with the quantity of the trees. He wanted trees of a larger girth and his complaint was that he was not getting those trees for cutting. Now, it will be noticed that the grievance sought to be agitated in this litigation is a far cry from the grievance which was made by the plaintiff on the spur of the moment. The grievance at the earlier opportunity was in fact without any basis whatsoever. It had no basis on the terms of the contract; it has no basis in the evidence adduced before us. The fact that the grievance was a baseless grievance is more or less an implied admission, because at no time thereafter was the grievance pursued. But in the place of that grievance the plaintiff comes out with a grievance that he was kept in the dark as to the exact location of Plot Nos. 16, 17 and 18. To our mind, this is an evident after-thought and the grievance is totally unfounded.

9. We have also examined the correspondence between the officers of the Department having bearing on the subject and we are satisfied that the final findings recorded by the officers concerned are fully borne out by the evidence on record before us. As a matter of fact, if we look at the finding there is no room left for doubt that whatever the plaintiff had bargained for, he got in full measure, may, in a somewhat over-flowing measure. As a matter of fact, the officer concerned had recorded a finding that the plaintiff had cut a larger number of trees than he was entitled to. We called upon Mr. Abhyankar to satisfy us that he was allowed to cut less number of trees and in fact, cut, ultimately the lesser number of trees than he had bargained for. He could not bring to our notice any evidence in that behalf. On the other hand, he could not even deny the correctness of the finding arrived at by the officer to the effect that as a matter of fact larger number of trees were in fact cut by the plaintiff than he was entitled to. By the present suit what the plaintiff wants to do is that in addition to the number of trees he had bargained for, he wants to cut the trees on Plots Nos. 16, 17 and 18 to which he was in terms disentitled by virtue of his own Kabulayat, let apart the proclamation and his tender. Having had a minute as well as a comprehensive view of the matter, we are fully satisfied that the plaintiff's contention is itself a misleading contention. He poses himself as a victim of misrepresentation. What turns out is that he is the author of one misrepresentation meant for the Court.

In this view of the factual position, it can hardly be disputed that the plea of estoppel has no legs to stand upon. Mr. Abhyankar, however, contended that the representation or mis-representation in the instant case consisted of negligence on the part of the officers of the Department in not laying down the boundary so as to demarcate the disputed portion from the undisputed portion of the coupe. In this connection, he invited our attention to the judgment of the Supreme Court in the case of New Marine Coal Co. (Bengal) Pvt. Ltd. v. The Union of India, : [1964]2SCR859 , and contended that the negligence on the part of the Department, consisting of omission on its part to demarcate the western boundary of the disputed plots gave rise to formation of certain impressions or beliefs in the mind of the plaintiff upon which he acted to his detriment.

In our opinion, the very basis of his contention vanishes once we notice that there existed no negligence on the part of any of the officers of the Department that the disputed plots were already demarcated by the natural boundary of the nalla, nor did there exist any representation on their part to the plaintiff pursuant to which the plaintiff could be said to have acted to his detriment. The grievance of the plaintiff that the absence of artificial boundary gave rise to negligence on the part of the officers of the Department is a statement which needs just to be stated as rejected.

Our attention was not invited to any part of the evidence on the strength of which it could be said that any of the officers of the Department made any particular representation to the plaintiff to the effect that he was entitled to cut trees on the disputed Plots Nos. 16, 17 and 18. But even assuming that there was any such representation made by any of the officers, it could be of no avail to the plaintiff because the representation must be made in order to invoke the plea of promissory estoppel, or of any estoppel in the matter of that, it is necessary that the person making representation must have the authority to make the representation. The agent's representation binds the principal provided the agent has the authority on behalf of the principal to make the representation. In the instant case, the proclamation was issued by the Government and the terms of the proclamation, the property which was the subject matter of the proclamation, the conditions in the proclamation were all fixed by the Government. None of the subordinate officers of the Government had a right to make even the slightest variation in any of the terms of the proclamation. It, therefore, follows that they could not make any representation to the plaintiff which militated against any of the terms of the proclamation.

This being the position, to our mind, the plaintiff's reliance upon any of the principles of estoppel is unjustified. If any authority was necessary for this proposition, it can be found from the judgment of the Supreme Court in the case of M/s. Jit Ram Shiv Kumar and others v. The State of Haryana and another, : [1980]3SCR689 . This is what the Supreme Court observed in para 50 of the said judgment :

'The Government would not be bound by the act of its officers and agents who act beyond the scope of their authority and a person dealing with the agent of the Government must be held to have notice of the limitations of his authority'.

10. No other contention was advanced on behalf of either of the parties.

11. The appeal is, therefore, allowed. The plaintiff's suit is dismissed with costs. The cross-objections also stand dismissed with costs. The plaintiff shall pay the costs of the defendant throughout.


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