C.B. Capoor, J.C.
1. This petition under Article 226 of the Constitution of India has been filed by Rajkumar Rajindra Singh against Himachal Pradesh Administration through the Secretary (Forests) and Chief Conservator of Forests and Chaudhary Gopal Singh and Co., the Forest Contractors. The petition arises in the following circumstances:
The petitioner is the second son of late Raja Padam Singh the then ruler of Bushahar State hereinafter referred to as the Raja. By his order dated 14-9-1999 B. corresponding to 28th of November, 1942 A.D. the Raja made a gift in favour of the petitioner and his mother Rani Sahiba of Katochar of land comprised in Khatas Nos. 1 and 2, Khatauni Nos. 1 to 25 consisting of 106 plots situate in Chak Adu, Tehsil Rampur, now in Mahasu District, and got mutation effected and sanctioned in pursuance of the aforesaid gift. The gifted land inter alia included Khasra Nos. 606, 222, 34 and 341 and it is in respect of those 4 plots that controversy centres in the instant case. The petitioner was minor when the aforesaid gift was made and his mother granted occupancy rights in favour of certain zamindars in respect of plots Nos. 222 and 341 a,s a result of which the number of the plots gifted increased to 110. By his order dated 25-10-2003 B. corresponding to 7th January 1946, the Raja conferred the entire estate referred to above on the petitioner and in pursuance of the aforesaid order got mutation effected and sanctioned. The Raja and the mother of the petitioner respectively died in April 1947, and July 1949, and as at that time the petitioner was minor his estate was taken under the management and supervision of the Court of Wards. By Notification dated 24th of March 1956, the estate of the petitioner was released from the management of Court of Wards. Shortly afterwards he found that certain old boundary pillars stood in the aforesaid 4 plots and in order to avoid any misunderstanding he made a representation dated 28th of October 1957, to the Chief Conservator of Forests Himachal Pradesh to have the aforesaid boundary pillars removed and also requested him to get the trees marked for sale. The Deputy Commissioner Mahasu was ordered to make an inquiry into the matter. During trio course of the inquiry, the local right holders stated in writing that they had no objection to the felling and sale of the trees by the petitioner provided their grazing rights were not interfered with. As a result of the inquiry he (i.e., the Deputy Commissioner) held that Khasra plots Nos. 34, 222 and 606 were un-measured waste land having no internal boundaries and that according to the revenue papers they were the property of the petitioner. He permitted the Forest Authorities to mark the trees standing on the aforesaid plots silviculturally subject to the rights of the estate right holders, and subject to the furnishing of an affidavit as to his proprietary rights by the petitioner. On 15-12-1958 the aforesaid plots were demarcated on the spot by the Tehsildar Rampur in pursuance of the order of the Deputy Commissioner Mahasu. On 14-2-59 the petitioner brought to the notice of respondent No. 1 the reports submitted by the Tehsildar and the Deputy Commissioner, Mahasu and requested for permission to fell and remove the trees and informed him that he had entered into an agreement with respondent No. 2 for the sale of the trees, and had received earnest money from him. On 19-2-1959 respondent No. 1 informed the petitioner that the Divisional Forest Officer Bushahar Division hereinafter referred to as the Divisional Forest Officer had been instructed to mark trees in the area silviculturally and permitted him to get the trees felled and removed by respondent No. 2. On 5-3-1959, the Divisional Forest Officer informed the petitioner that Range Officer Nogli had been directed to do the needful and further that before the trees could be marked the boundaries had to be demarcated again. A joint demarcation of boundaries was carried out on spot by revenue and forest authorities. This joint demarcation was objected to by the Divisional Forest Officer with respect to Compartment No. VIII B of Khasra No. 341 and the Tehsildar Rampur was required to demarcate the boundaries personally but the demarcation made by him was not accepted by the Forest Department and two Gazetted Officers, one of the Revenue Department and the other of the Forest Department were ordered to submit a report with regard to that compartment and they reported that there was a dispute about it. By letter dated 4-8-1959, the Divisional Forest Officer informed the petitioner that Khasra Nos. 1 and 606 of Chak Adu had been declared to be notified forests under Section 4 of the Himachal Pradesh Private Forests Act and action was feeing taken to notify Sainji Forests and the remaining Khasra Numbers of Adu Forests as private forests of the petitioner. As required by S. 11 of the Himachal Pradesh Private Forests Act, the petitioner was required to pay a fee of Rs. 22882.98 nP. which fee was deposited. He requested respondent No. 1 to allow respondent No. 2 to fell trees in Compartment Nos. IX(C) and IX(B) in Khasra No. 341 and that request was acceded to by the Divisional Forest Officer, by his letter dated 10-7-1959. Respondent No. 2 commenced working in the aforesaid compartments and engaged a large number of labourers for the felling of the trees. The Divisional Forest Officer vide his letter dated October 1959 informed him that the Conservator of Forests had instructed him to stop felling of any tree in Adu Forests till the demarcation was made and finalised by a responsible revenue officer. He represented against the aforesaid order and the Chief Conservator of Forests and Secretary Forests vide his letter dated 16-11-1959 accorded permission to the petitioner to fell trees from the aforesaid 4 Khasra plots, on the furnishing of an affidavit by him. On 14-2-1959 permits for the removal of walnut barks from all that 4 Khasra Numbers were issued in fayour of the petitioner's contractor Shri Dharampal. On 13-1-1960 the Divisional Forest Officer informed him that the Lieutenant Governor Himachal Pradesh had ordered that security be furnished to the tune of Rs. 5,39,000/- and accordingly he furnished the required security. On 27-5-1960, the respondent No. 1 through the Conservator of Forests Simla Circle asked the petitioner to execute a fresh bond which direction was also complied with. By letter dated 25-5-1960 the Divisional Forest Officer informed him and respondent No. 2 that the timber converted in Compartment No. IX (C) would not be permitted to be removed till further order and that no felling would be permitted in other compartments namely VIII(C), IXA, IXB, X(A) part and X(B) part. The petitioner made a representation to respondent No. 1 on 30th of May, 1960 and on 2-6-1960 the Divisional Forest Officer informed him to stop work completely in Adu Forest until the matter is finalised. On 23-7-60 the respondent No. 1 informed him that it had been decided to recover from him the price of the trees at the market rates prevailing during the year 1960-61 and by another letter dated 2nd of August 1960 the Divisional Forest Officer informed him that the price of the trees felled from Compartments Nos. IX(B) and IX(C) will be Rs. 305811.70 nP.
2. The contention of the petitioner is that the aforesaid orders requiring him to pay royalty were unconstitutional, illegal and ultra vires, in view of the facts that respondent No. I had recognized him to be owner of the aforesaid 4 plots, that a declaration under Section 4 of the Private Forests Act had been made in respect of one of the aforesaid plots, that the fee as required by Section 11 of the Himachal Pradesh Private Forests Act had been deposited by him. His prayer is that respondent No. 1 be ordered by a writ of mandamus or any other appropriate writ, direction or order to withdraw the various illegal orders passed by it restraining the petitioner and respondent No. 2 from felling the marked trees standing on the disputed Khasra Nos. 341, 34, 606 and 222 situate in Chak Adu and from removing the timber of the trees felled or which may hereafter be felled.
3. Respondent No. 1 has contested the petition and two preliminary objections have been raised namely that the Himachal Pradesh Administration is not a legal entity and cannot be sued and the Union of India is a necessary party and secondly that the title of the petitioner to the disputed property is contested and the proper remedy for him is to file a regular suit.
4. On the merits the case of respondent No. 1 is as below:
According to mutation dated 28-10-99, 263 Bighas and 4 Biswas of land only was granted while the area sought to be claimed is about 1719 acres and includes 1st Class demarcated protected forests comprised in Compartments Nos. VIIIB, VIIIC, IXA, IXB, IXC, part of XA and part of XB. The aforesaid compartments have all along been in its ownership and possession. The Raja leased the entire and sole control of his forest.to the Punjab Government in 1864 A.D. which lease was renewed on 29-9-1942 for a period of 50 years with effect from 1st of April 1941 and he had no right to make a grant in respect of the leased forests to any one. On 1st of April 1949 the leased forests were transferred to the Hirnachal Pradesh Government and since then that Government has been exercising control over them. In the Forest Settlement report of Bushahar State prepared during the year 1916 to 1920 the area claimed by the petitioner has been recorded as demarcated forests. The forests in dispute along with other forests were declared to be protected forests vide Notification dated. 25-2-1952. According to the working plans prepared for the year 1929 to 1958 and the revised working plan for the years 1947-48 to 1958-59 the plots in dispute are demarcated forests. The area in dispute has been exploited by the Forest Department from time to time according to the Working Plan. By the second grant dated 25-10-2003 B. only basa land fetching an income of Rs. 9000/- per annum was granted to the petitioner. The mother of the petitioner was not competent to grant nautor land and she did not grant any such land to any zamindar. During the time the petitioner's property was under the management of the Courts of Wards the respondent No. 1 was in possession of the disputed property and sold trees standing thereon during the years 1952 to 1954. The disputed plots were not measured during the revenue settlements which took place in the Bushahar State as they were demarcated forests under the control of the Punjab Government. The Deputy Commissioner Mahasu had no authority to decide the question of title and as a matter of fact he did not decide that question. The demarcation made by the Tehsildar Rampur has not been accepted by the Forest Department. The permission to mark and fell the trees was given on the misunderstanding that the Deputy Commissioner, Mahasu had held the disputed property to be that of the petitioner. The affidavit furnished by the petitioner led the Chief Conservator of Forests to believe that the area may be belonging to the petitioner. The Union of India is in any case not bound by any order that the Chief Conservator of Forests may have made. Khasra Nos. 1 and 606 of Chak Adu were declared as notified forests under Section 4 of the Himachal Pradesh Private Forests Act, under a mistaken notion. Such a notification could not be issued with regard to the forests owned by the Government and on 28th of July, 1960, another notification was issued by the Government denotifying the forests in Chak Adu as private forests. The petitioner has not felled any tree in Khasra Nos. 34, 222 and 606. As soon as the Government found that the petitioner had no title to the disputed Khasra Numbers it restrained him from removing the timber or cutting any other tree and required him to pay the price at the market rates prevailing during the year 1960-61. Even if it be held that the petitioner was the owner of the disputed property the same automatically vested in the Government under Section 27 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, with effect from 26th of January 1954, when the said Act came into force, and lastlythat as the petitioner did not get possession over the said plots his title was extinguished by virtue of Articles 142 and 144 of the Limitation Act.
5. Respondent No. 2 has supported the petition. The petitioner and respondent No. 1 have marked the Annexures which they have appended to the petition and the written-statement alphabetically and in order to avoid confusion the Annexures appended to the written-statement filed by respondent No. 1 will be referred to as R. A. and so on.
6. In view of the contentions advanced on behalf of the parties the following questions arise for decision:
(1) Whether the Union of India is a necessary party? If so, with what effect on the case?
(2) Whether the petition is not maintainable because of there being serious dispute on the question of title?
(3) Whether the petitioner is the owner of the disputed Khasra Numbers 34, 606, 341 and 222?
(4) If question No. 3 is answered in the affirmative, whether the petitioner is bound by the terms of the lease made by the Raja in favour of the Punjab Government on 29th of September, 1942, and whether he is entitled to fell and appropriate or sell the trees standing in Khasra Nos. 341, 34, 606 and 222.
(5) Whether respondent No. 1 is estopped from asserting its rights if any, in the aforesaid plots.
7. FINDINGS.-- Question No. 1. According to the 2nd part of the 1st Schedule to the Constitution of India, Hirnachal Pradesh is a Union Territory. Article 239(1) of the Constitution of India runs as below:
'Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.'
8. The petitioner has impleaded neither the President nor the Administrator appointed by him for the administration of the Himachal Pradesh Territory. The Himachal Pradesh Administration which figures as the main respondent to the petition is not a juristic entity, and cannot sue or be sued. Any order that may be passed in this case will not bind the President or the Administrator and will not be effective. The Ctame of the petition is thus materially defective.
9. Questions Nos. 2 and 3. It has been helcf in the case of Union of India v. T. R. Varma reported in (S) AIR 1957 SC 882 that where there is a question on which there is a serious dispute which cannot be satisfactorily decided without taking evidence it is not the practice of the Courts to decide it in a writ petition. The aforesaid ruling was followed by the Allahabad High Court in the case of Altafur Rahman v. Collector Central Excise Allahabad, reported in AIR 1960 All 551.
10. It has next to be seen if there is a serious dispute between the parties on the question of title.
11-14. (After going through the contentions and evidence His Lordship proceeded:) Keeping in view the contentions put forward on either side there can, however, be no doubt that there is a serious dispute between the parties on thepquestion of title and such a dispute cannot be decided merely on affidavits. 1, therefore, refrain from recording any finding on the question of title.
15. Question No. 4. For the purposes of this question 1 will assume that the petitioner is the owner of the disputed Khasra numbers and would examine if his proprietary rights will be subject to the lease executed by the Raja in favour of the Punjab Government in September 1942 hereinafter to be referred as the lease. A copy of that lease is Annexure R.B. According to the lease the term 'forest' means and includes (a) demarcated forests, i.e., forests which are defined and stated as demarcated forests in the forest settlement of Bushahar State, including the forest settlement for the Sutlej valley in 1921, (b) forests reserved for the use of the Raja i.e., the forests defined and stated in appendix 1 to the lease. It is common grouad that the disputed plots are not comprised in the forest reserved for the use of the Raja, (c) undemarcated forests.
16. The other terms material to the matter in hand are as below:
(a) The Raja granted to the Punjab Government the entire and sole control of the whole of the forests of Bushahar excepting those reserved for the use of the Raja. (b) The consideration for the lease was payment inter alia of the whole net surplus on the working of the forests included in the lease. (c) The Raja granted to the Punjab Government all his rights in unclaimed waif, drift and windfall timber, subject to the right of seizure by the Raja of the waif timber which did not bear axe or saw mark, on the left bank of the Sutlej river between Pat bungalow and the Nogligad. (d) The Punjab Government was to appoint and maintain at its own expense such offi-cers and such subordinate establishment as may appear to it to be necessary or expedient for the purposes of controlling, managing and working the said forests and controlling and managing the transport and floating of timber, and for conserving forests included in the lease. (e) The budget so far as it related to the revenue and expenditure of the Bushahar State Forests for each fiscal year commencing from the year 1942-43 was to be sent to the Raja for his information and the Raja could, if he considered it necessary, make any comment or proposal in respect of the budget.
17-18. (His Lordship referred to the contentions of the petitioner and proceeded:)
19. On a perusal of the terms of the lease there is no doubt that the forests of the then Bushahar State with the exception of the forests reserved for the use of the lessor were put underthe control of the Punjab Government and the lessor had no right to exploit or work those forestsor appropriate any timber exceot as provided by Clause (5) of the lease relating to the unclaimedwaif, drift, and windfall timber and by paragraph 5 of the Schedule to the lease, according to which the Raja could indent to the Divisional Forest Officer for any timber which he might require for state purposes.
20. I am, therefore, of the opinion that under the terms of the lease the Raja did not have any right to cut any tree of the forests leased out to the Punjab Government except as provided in the lease itself and if he himself did not have any such right he could not transfer any such right to the petitioner during the subsistence of the lease.
21. It was urged on behalf of the petitioner that the Kaja revoked the lease when he executed Patta in favour of the petitioner and his mother in 1942 and in favour of the petitioner in 1946. It has been contended that the Raja was the absolute monarch and as such had the power to revoke the aforesaid lease even unilaterally. I may be mistaken, but so far as I have been able to see, it has not been pleaded either in the petition or in the replication that the Raja revoked or intended to revoke the lease when he made a grant in favour of the petitioner and his mother in 1942 or in favour of the petitioner in 1946. The petitioner's pleading in my opinion has been that the Raja uad not divested himself of his proprietary rights when he executed the lease and that he had the right and the power to transfer proprietary rights in disputed plots in favour of the petitioner even after the execution of the lease, vide paragraph 2 of the replication. I may at once say that no exception can be taken to the aforesaid proposition of law. It is, however, quite different when it is contended that the Raja had revoked or intended to revoke the lease.
22. On the record there is no material on the basis of which it may be inferred that the Raja either revoked or intended to revoke the lease. (After referring to the relevant record His Lordship continued:)
23. In this view of the matter it is not necessary to go into the question as to whether the Raja could have terminated the lease unilaterally at his sweet will and pleasure and I do not propose to record a categorical finding thereon, and would in brief notice the contentions put forward on behalf of the contestants in that connection.
24. It has been contended on behalf of the petitioner that the Raja was an absolute monarch and his word was law and he had the right and the power to put an end to any contract to which he was a party at his sweet will and pleasure irrespective of the fact whether the other party to the contract consented to termination or not. On the other hand it has been contended on behalf of respondent No. 1 that the transaction of lease was entered into between two sovereign powers viz; The Raja of Bushahar and the Punjab Government and was in the nature of an international agreement and could not have been terminated unilaterally at the sweet will and pleasure of the Raja. This proposition of law was met on behalf of the petitioner by saying that neither the State of Bushahar nor the Punjab Government was a sovereign power on account of the fact that the British Crown exercised rights of paramountey over the former and of suzerainty over the latter.
25. While it is true that historically speaking sovereign states are the normal type of subjects of international law a dependant state may also be recognized by the States as a subject ofinternational law vide pages 25, 32 and 33 of a Manual of International Law by Schwarzenberger. Howsoever absolute the powers of the Raja may have been he could not have put an end to a contract entered into by him with Government of another State, arbitrarily and at his sweet will and pleasure. The Raja might have exercised his absolute powers over his subjects but he could not have done so over Government of another State. I am further of the opinion that even if legally the Raja could have terminated the lease arbitrarily he would not have and could not have dared to do so on account of the functioning of. the political department. That department and the viceroy and Governor-General of India would have seen that the Raja kept to his word and did not terminate the lease capriciously.
26. On behalf of the petitioner it was contended that the interest of the lessor had merged in that of the lessee when the State of Rampur Bushahar merged in the Union of India. It is well settled that there is no merger unless the interests of the lessor and of the lessee become vested in the same person in the same right. A lease is not extinguished if a lessee purchases or acquires a part of the reversion only. Vide Faqir Bux v. Murli Dhar, 58 Ind App 75 : (AIR 1931 PC 63). According to the petitioner the rights of the lessor in the disputed plots inhere in him and as such on his own showing there could not have been a merger of the interests of the lessor and lessee on the merger of the State of Rampur Bushahar in the Union of India. On behalf of the petitioner reliance was also placed upon Clause (f) of Section 111 of the Transfer of Property Act and it was urged that the lease had been impliedly surrendered. Implied surrender occurs by the creation of a new relationship or by relinquishment of possession and in the instant case neither a new relationship has come into existence between the lessor and lessee nor has possession been relinquished by the lessee in favour of the lessor.
27. Respondent No. 1 has filed copy of a letter dated 28th November 1948 from Deputy Secretary to Government East Punjab, Revenue and Development Departments to the Deputy Chief Commissioner Himachal Pradesh on the subject of transfer of the Bushahar State Forests and termination of the lease thereof. It has been stated in the aforesaid letter that the Governor of East Punjab has been pleased to decide that the Bushahar State Forests covered by the lease dated the 25th of September, 1942 be transferred to the Himachal Pradesh Government and the lease terminated subject to the certain conditions which need not be detailed for the purposes of this case. It was vehemently argued on behalf of the petitioner that as the lease had been terminated, it could not be treated as subsisting. The word 'terminated' appears to have been used as both the Punjab Government and the Government of Himachal Pradesh were under the impression that the rights of the lessor had passed on to the Government of India. If, however, the disputed plots are held to have been transferred to the petitioner there would be no merger of the lessor and lessee rights. No intimation of the termination of the lease was made to the petitioner and in case the petitioner is held to beproprietor of the disputed plots the Punjab Government could not have terminated the lease unilaterally. The effect of the aforesaid letter is that the lessee rights were assigned to the Government of Himachal Pradesh by the Government of Punjab. It was also argued on behalf of the petitioner that while the lease was in favour of the Punjab Government the aforesaid letter of 28th November 1948 was written by the Government of East Punjab and as such it had no validity. The contention is devoid of merits. As a result of the partition of the country the portion of Punjab which formed part of the territory of India was at first known as East Punjab and later on as Punjab. The rights under the lease, it could not be gainsaid devolved on the Government of East Punjab which was quite competent to transfer the same to the Government of Himachal Pradesh. I, therefore, hold that even if the petitioner is assumed to be the owner of the disputed plots, his proprietary rights will be subject to the terms of the lease and that he did not have a right to cut or appropriate any tree in the demised forests except as provided by the lease.
28. Section 48 of the Transfer of Property Act provides that where a person purports to create by transfer at different times rights in or over the same immovable property and such rights cannot exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. It would thus appear that if the lease is subsisting and proprietary rights in the disputed plots vest in the petitioner, he is bound by the terms of the lease.
29. Question No. 5. In order to support a finding in his favour, the petitioner has in the main relied upon the following documentary evidence :
(a) Mutation orders in pursuance of the orders of the Raja dated 14-9-99 and 25-10-1930 Bikrami, copies of which are Annexures A and B.
(b) Extract from jamabandi for the years 2000-2001 and 2004-2005: Annexure C.
(c) Reports of Tehsildar and other officers on the delimitation of the boundary: Annexures G and M.
(d) Letters sent to the petitioner or his attorney general by the revenue officers and by the officers of the Forest Department and letters sent by the revenue officers to officers of the Forest Department, or vice versa; Annexures H, I, K, L, O, P, S, SI, CC and HH.
(e) Letters or orders issued by the manager of Court of Wards during the time that the estate of the petitioner was under the management of the Court of Wards: Annexures D and E.
(f) Letter sent by the Secretary to Himachal Pradesh Administration Forest Department to the petitioner: Annexure RY.
(g) Notification dated 10th of June, 1959 made by the Himachal Pradesh Government under Section 4 of the Himachal Pradesh Private Forests Act regarding Khasra Nos. 1 and 606. Reference to the aforesaid notification was made in the letter Annexure O.
30. Broadly speaking the aforesaid documentary evidence may be divided into two categories :
(1) Letters or orders sent or made by officers ofthe Government or by the manager Court of Wards during the time that the estate of the petitioner was under the management of the Court of Wards. Items Nos. (a) to (e) fall under this category.
(2) Letters sent or notification made by or on behalf of Government. Items Nos. (f) and (g) fall under this category.
31. There is a clear distinction between an act done by an officer of Government and byGovernment. An officer of Government does not represent Government unless he is authorised todo so. In the case of Ranshah Bapu v. Govt. of the Central Provinces, reported in AIR 1949 PC 140, the facts were as below:
In the jamabandi prepared in the settlementof 1922-23 for a certain village in a zamindari in Chanda District, under the head of Siwai income, certain amount was shown as bazar dues and this was included in the total income upon which Government revenue was assessed. In 1935 Government disputed the claim of the zamindar to levy bazar dues as being in contravention of the terms of the Wajib-ul-arz.
It was held by their Lordships of the Judicial Committee that the Government was not estopped from disputing the claim of the zamindar.
32. In the case of Sursingji Dajiraj v. Secy.of State, reported in AIR 1926 Bom 590, it was held that where Wanta lands forming a part of the Talukdari estate, liable to payment of jama, are by mistake recorded in papers as rent-free Wanta lands, the lands do not become rent-free Sands and such record does not operate as anestoppel agatnst the Goyernment.
33. In the case of Attorney General for Ceylon v. A. D. Silva, reported in 1953 AC 461: Crown property, consisting of certain naval war supplies in particular, a quantity of steel plates--lying on customs premises in Ceylon, was advertised for sale by public auction on Marcn 4, 1947, in the Government Gazette by the principal Collector of Customs who, by mistake, had treated the goods as unclaimed and had obtained thesanction of the Chief Secretary to sell them. Some weeks before the sale, an officer of the Services Disposal Board in Ceylon, who had been appointed by the Ministry of Supply in England, who had taken over the goods in November, 1946, had contracted on January 23, 1947 to sell the goods to a firm in Ceylon. At the auction sale the respondent had bought some steel plates and other goods and on the refusal of the principal Collector,on becomng aware of the earlier contract, to deliver the goods to him, the respondent claimedagainst the Attorney General for Ceylon, as representing the Crown, damages for breach of contract. It was held that the principal Collectorof Customs had no authority actual or ostensible, to enter into a contract binding on the Crown for the sale of the goods to the respondent, and further that a public officer has not by reason of the fact that he is in the service of the Crown the right to act for and on behalf of the Crown inall matters which concern the Crown; his right to act for the Crown in any particular matter must be established by reference to statute or otherwise. The act of the Collector in advertising the goods for sale could not be said to be the act of the Crown and nothing done by the Collector or by the Chief Secretary amounted to a holding out by the Crown that the Collector had the right to enter into a contract to sell the goods.
34. On behalf of the petitioner reliance was placed upon a ruling of the Bombay High Court, reported in Secy. of State v. Tatya Saheb Yeshwantrao Holkar, AIR 1932 Bom 386. The facts of that case were that as a result of proceedings under the Land Acquisition Act there was an adjudication by the High Court that a sum of Rs. 37,000/- and odd was payable by the Government to the defendant and the Government as a result of those proceedings took possession of the land acquired, and paid the sum of Rs. 37,000/-. Thereafter the Government realised that the land acquired belonged to it and filed a suit for recovery pf Rs. 37,000/- and odd. The High Court held that having regard to the whole course of the land acquisition proceedings, the Government must be taken to have represented by the notification that the land did not belong to Government and they could not be allowed to contradict that representation on which the defendant had acted to his detriment. It will have been noticed that in that case notifications were issued by the Government under the Land Acquisition Act for the acquisition of certain land and it is clearly distinguishable from those cases in which the Goyernment is sought to be made bound by acts of their officers.
35. The manager of the estate of the petitioner while it was under the management of the Court of Wards cannot even be considered an officer of Government qua the letter sent or acts done by him as manager. The Government was not a party to the mutation proceedings and the mutation orders Annexures A and B cannot have any binding force on it. I am, therefore, of the opinion that the documentary evidence of the first category cannot form the basis of the plea of estoppel against the Government.
36. Now I advert to the documentary evidence of the second category. Annexure R Y is a copy of letter dated 16-11-59 written by the Secretary Forest and Chief Conservator of Forests Himachal Pradesh to the petitioner, whereby pending final delimitation and demarcation of the boundaries of his private forests vis-a-vis the forest areas the Himachal Pradesh Administration allowed in his favour the marking and felling of trees in Khasra Nos. 341, 606, 222 and 34 on the affidavit furnished by him. As the aforesaid letter was written by the Secretary of Himachal Pradesh Administration, it must be held to have been written on behalf of the Government. It cannot, however, form the basis of a plea of estoppel for more reasons than one. Firstly the permission was granted on an affidavit furnished by the petitioner to the effect that he was the owner of the aforesaid plots and that if he is not held to be the owner and is found to have felled the trees illicitly he shall be liable for the payment of compensation and price of the trees so felled at themarket rate obtaining in the forest department vide paragraphs 1 and 4 of Annexure J the copy of the affidavit.
37. Secondly the aforesaid letter was written in November 1959, whereas the petitioner had entered into an agreement for the sale of the trees in the aforesaid 4 plots on 25-9-58 and had also accepted earnest money from respondent No. 2, the buyer. It could not, therefore, be said that the petitioner had acted to his detriment or prejudice on the faith of the contents of the aforesaid letter. One of the ingredients essential for the prevalence of the plea of estoppel is that the person pleading estoppel mast have acted to his prejudice relying upon the declaration, act or omission on the part of another person. Section 115 of the Indian Evidence Act, reads as below:
'When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.'
37a. The elements, extent and limits of the rule of estoppel have been enunciated at pages 1204 and 1205 of Corpus Juris Volume 21: in the following words: .
'To render the rule operative it is essential that the party invoking estoppel was misled by the acts or conduct of the party against whom the estoppel is claimed and that he changed his position in reliance thereon and was justified in so doing and that he was prejudiced thereby - - - -. No estoppel arises where the conduct relied on to create the estoppel was superinduced by the acts of the party invoking the doctrine.'
38. On page 707 of Phipson on Evidence 9thEdition, the following observations have beenmade:
'If two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time neither can be estopped as against the other from asserting differently at another time.'
39. Thus even if the Secretary forest is held to have made a representation of fact, there would be no estoppel as the petitioner was also saying that he was the owner of the aforesaid plots. It is a well established principle that there is no estoppel when both parties are equally acquainted with the facts.
40. On 10th of June 1959 a notification under Section 4 of the Himachal Pradesh Private Forests Act was issued by the Himachal Pradesh Administration in respect of Khasra Nos. 1 and 606. It is significant that the notification related to only one of the disputed plots. The notification was undoubtedly a representation by Government, that plot No. 606 was a private forest. It has, however, been contended on behalf of respondent No. 1 that the said notification was void. The contention is based on the provisions of Section 2 of the Himachal Pradesh Private Forests Act, according to which the Act does notapply to any land which is vested in Government or which is a reserved or protected forest under the Indian Forest Act 1927, and according to respondent No. 1 Khasra No. 606 is such land. It has further been contended on behalf of respoadent No. 1 that the aforesaid notification has been rescinded retrospectively by a subsequent notification. On behalf of the petitioner on the other hand it has been contended that the notification dated 10th of June, 1951, was not void and that it could not be cancelled retrospectively. I do not propose to go into the question as to whether the notification dated loth of June, 1951, was void or could be cancelled retrospectively as even if it be held to be valid and to have been cancelled prospectively, it would not bring the doctrine of changed situation into play. The aforesaid notification was made long-after the petitioner had entered into an agreement of sale with respondent No. 2 and as such the latter could not be said to have acted to his detriment on the faith of the notification.
41. It was next contended on behalf of thepetitioner that even if Section 115 of the IndianEvidence Act be not applicable the principleunderlying that Section would be applicable tothe instant case as that section did not exhaustively deal with the principle of estoppel and myattention was invited to Sections 41 and 43 ofthe Transfer of Property Act. None of those Sections has, however, any application whatsoever to the instant case. The conditions requisite for the application of Section 41 are thatthere must be an ostensible owner with the consent express or implied of the true owner andthe transferee must have acted in good faith andmust have paid consideration. Section 43 is basedon the principle of feeding the grant by estoppel.In other words that section comes into play whena transfer is made by a person who has no titleto the property transferred but later on he acquires title to that property. The principle ofestoppel, therefore, can be of no help to thepetitioner.
42. On behalf of the petitioner reliance has also been placed upon a decision of this Court in Civil Writ Petn. No. 22 of 1960; Smt. Vijey Kumari Thakur v. Himachal Pradesh Administration reported in part in AIR 1961 HP 32. In that case an agreement for sale was entered into by the petitioner after permission had been accord ed to her by the Government to sell the trees, and that fact distinguishes that case from the instant case in which the agreement for sale was entered into prior to the according of sanction on behalf of the Government for the felling of the trees. For the foregoing reasons the question is answered in negative.
43. To sum up my conclusions are as below:
(1) That there is a serious dispute between the parties on the question of title and that question cannot be decided merely on affidavits.
(2) That even if the petitioner is assumed to be the owner of the disputed plots he will be bound by the terms of the lease dated 25th of September, 1942, executed by the Raja in favour of the Punjab Government.
(3) That in accordance with the terms of the aforesaid lease the lessor did not have and exhypothesi his transferee cannot have the right to cut or appropriate any tree of the demised forests except in accordance with the conditions laid down therein.
(4) That respondent No. 1 is not estopped from asserting its rights, if any, in the disputed plots.
(5) That the petition is defective for want of joinder of necessary party.
44. In view of the aforesaid findings, no writ by way of mandamus or any other writ, direction or order prayed for can be issued to respondent No. 1.
45. In fine the petition fails and is hereby dismissed with costs to respondent No. 1.