1. This is an application under Article 226 of the Constitution by Maharaj Ranvijai Singh of Nahan for the issue to the respondents, the Divisional Forest Officer Nahan, the State of Himachal Pradesh and the Conservator of Forests at Nahan, of a writ of mandamus or prohibition, or such directions or orders as may be necessary, preventing them from proceeding with the recovery of Rs. 2,907/12/- as value of trees alleged to have been cut by the petitioner's contractors from Government Forest.
2. The private forest of the petitioner, Known as the Bikram Bagh, and the reserved forest belonging to the Government, known as the Pairiwala, adjoin each other. The petitioner sold some trees in the year 2003 B., corresponding roughly to 1946 A. D., to certain contractors, who felled and removed them. The Forester made a report to the Divisional Forest Officer on 4-1-2004 B. that the contractors had cut and converted into charcoal 150 'kokath' and 44 'khair' trees from the said Government forest. The Divisional Forest officer, after personally verifying the correctness of the Forester's report, made a report to the Conservator of Forests on 19-1-2004 B. Both the reports stated that the stumps of the cut trees bore the hammer mark of the petitioner. The Conservator of Forests directed the Divisional Forest Officer by his letter dated 17-3-2004 B. to realise the price of the 'khair' trees at Rs. 50/-per tree and that of the 'kokath' trees at the standard rates from the petitioner.
3. After the above intra-departmental communications, beginning with the Forester's report and ending with the Conservator's fixation of price of the trees and his direction to the Divisional Forest Officer to realise the same from the petitioner, there ensued an exchange of correspondence between the Divisional Forest Officer and the petitioner consisting of demands by the former for recovery of Rs. 2,907/12/- at the said rates and repudiation of the demands by the latter. The petitioner denied that his contractors had cut any trees from the State forest and Insisted on an inquiry on the spot in his presence before he could be made liable. The Divisional Forest Officer rejected the petitioner's request for an inquiry on the ground that the amount had already been fixed by the Conservator and persisted in his demand for recovery of that amount. In more letters than one the Divisional Forest Officer threatened to take the matter to Court if the amount demanded was not paid. In some of these letters of demand he described the claim as price and in others as compensation. There is also a difference between the parties as to whether the first demand was only made on 24-12-1949, as contended by the petitioner, or whether there had been several demands before that commencing with one dated 27-9-2004 B. It is noteworthy that the demand dated 24-12-1949 was sent to the petitioner per registered post acknowledgment due, & that when referred to the earliest demand relied upon by the respondents, i. e. the one dated 27-9-2004 B., the petitioner (in his letter dated 31-7-1950) did not deny having received it but only pleaded that due to the death of his manager, one Ram Kishan, certain papers had been misplaced.
4. The last demand by the Divisional Forest Officer was made on 12-8-1950. It was describedas such and it was stated therein that the petitioner should communicate his final decision by 15-8-1950 otherwise the writer would be compelled to take the matter to Court. To this the petitioner does not appear to have sent any reply. On 19-9-1950 the Divisional Forest Officer addressed a letter to the Deputy Commissioner wherein, after giving a brief history of the case, it was stated that every effort had been made to persuade the petitioner to compound the case on payment of Rs. 2,907/12/- as compensation but without any result, and that the only alternative left was 'to chalan the case in the Court'. The Deputy Commissioner was asked to exert his influence to recover the compensation, and it was stated in the end that as the case had already been much delayed an early action was requested. A copy of this letter was sent on 30-9-1950 by the Deputy Commissioner to the petitioner with the request to compound the case. About a year later, i. e. on 25-9-1951, the Tahsildar attached the petitioner's car. The petitioner's allegations are that the attachment has been made under directions of respondent 3, the Deputy Commissioner of Sirmur, at the instance of respondent 1, the Divisional Forest Officer Nahan, in order to realise the amount in question as arrears of land revenue, and that the Tahsildar threatened to attach other property of the petitioner also for the realisation of that amount. These allegations have not been denied in the respondents' reply.
5. On the eighteenth day after the attachment, i. e. on 13-10-1951, the petitioner filed the present application for the aforesaid relief. The grounds on which the application is based are that the question of whether any trees belonging to the Government were sold by the petitioner or cut by his contractors has never been inquired into in the presence of the petitioner or determined by a competent Court; that the compensation claimed was fixed by the Conservator behind the back of the petitioner; that the Conservator was not invested with any power to assess the compensation under the Indian Forests Act, 1927, and it could only be fixed by a competent Court; and that instead of resorting to a Court of law, as respondent 1 admittedly wanted to do, the respondents have adopted a mode of realisation of the amount claimed which is not warranted by law. It is also pleaded that the amount claimed is highly exaggerated.
6. The respondents in their reply pleaded that the amount claimed was assessed by the Government of the ex-State of Sirmur after complete satisfaction and verification through the revenue department that the trees in question had been cut from the Government forest; that the Conservator of the Sirmur State Government was fully competent to assess the amount, and his orders are binding on the petitioner; that it was not, possible to hold any further inquiry in the petitioner's presence after such a long time, nor was it necessary; that what was assessed was not compensation but only price or value of the forest produce in question; and that the mode adopted for its realisation was legal.
It was further pleaded by the respondents that the present petition deserves to be thrown out for the additional reasons that the petitioner has been guilty of laches, that there was no demand for justice or its refusal, and that another remedy by suit has not been availed of. One other plea, namely, that the State of Himachal Pradesh could not be represented by the Chief Conservator of Forests but by the President of India, was given up in the course of arguments before me. It may be stated, however, that the State of HimachalPradesh is not sought to be represented, but has only been sued through the Chief Conservator of Forests.
7. The main question for determination in this case is whether the procedure adopted by the respondents for realising the amount in question is legal and valid. But certain objections, in the nature of preliminary objections to the determination of the said question by this Court in exercise of its extraordinary powers under Article 226 of the Constitution, were raised on behalf of the respondents. These objections were based on grounds of laches and another remedy already mentioned. To these was added a third one in the course of arguments, and that was that as the amount in question had already become due on 17-3-2004 B. (sometime in 1947 A. D.) when it was assessed by the Conservator of Forests Sirmur State, the petitioner could not seek his remedy by a writ petition as Article 226 was not retrospective. To my mind, the first and third of these grounds are quite untenable, and these may be disposed of summarily.
8. However long may the question of the petitioner's liability in respect of the trees have hung fire, it was only on 25-9-1951 that his car was attached for realisation of the same. If respondent 1 made repeated demands from him in writing, the petitioner parried them by denying his liability. Such wordy warfare might have continued ad infinitum for all the petitioner cared. It was only when going beyond mere demands, the respondents had the car of the petitioner attached on 25-9-1951 that his rights, as he imagines them, were affected. The present petition was, however, filed on the eighteenth day after the attachment, as adverted to above, and therefore, quite promptly. I hold that the present petition does not suffer from laches.
9. Nor has the plea based on a retrospective effect, or rather want of effect, of Article 226 has any force. And this for the same reason that the executive act which has given petitioner cause of action for the institution of the present application accrued to the petitioner after the commencement of the Constitution, i. e. on 25-9-1951, when his car was attached.
10. The third preliminary objection raised on behalf of the respondents must, however, prevail. There is no doubt that wherever there is a wrong there is a remedy, but it cannot always be remedy by invocation of the extraordinary jurisdiction of this Court under Article 226 of the Constitution. There must be exceptional reasons for asking for the exercise of that extraordinary jurisdiction, for otherwise the ordinary legal remedy by a suit under the general law, would be rendered wholly nugatory. Such an exceptional reason must in my opinion be invariably held to exist where an application for relief under the said Article is based on infringement of one of the fundamental rights guaranteed by the Constitution. Such an exceptional reason would also seem to exist where, though not for enforcement of any of the fundamental rights, such an application is moved for 'any other purpose', if that purpose cannot be served by an ordinary suit. It has, therefore, been held that the extraordinary jurisdiction in question may be invoked if the alternative remedy by suit is less convenient, beneficial or effective. It is on this last-mentioned ground that the petitioner takes his stand in the present patently 'any other purpose case'.
11. The first case relied upon by the learned counsel for the petitioner was that reported as -- 'Nalini Kanjan v. Annada Shankar', A. I. R. 1952 Cal. 112. That was an application for a writof certiorari for quashing of orders passed under the Workmen's Compensation Act. The alternative remedy pleaded in that case as a bar to the application was remedy by way of appeal under the Act. It was no doubt held that even though there be an alternative remedy a writ will be granted where the application is by an aggrieved party and it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction. But it was pointed out that an appeal was in fact preferred but as the defendants of the deceased could not be traced and service could not be effected on them the appeal was struck out. It was, therefore, a case of total non-existence of the suggested alternative remedy and not merely of its not being equally convenient, beneficial or effective. Another distinguishing feature is that in that case the absence of jurisdiction was apparent on the face of the proceedings. That cannot, however, be predicated of the proceedings taken in the present case to realise the amount. It is a matter of controversy in this case whether the amount sought to be recovered from the petitioner was compensation or price. If the latter, it was argued on behalf of the respondents that it was realisable as arrears of land revenue under Section 82, Indian Forests Act, 1927.
12. The other cases cited on petitioner's behalf fall in one category and they are: -- 'Tan Bug Taim v. Collector of Bombay', A. I. R. 1946 Bom, 216; -- 'Lady Dinbal Petit v. M. Section Noronha', AIR 1946 Bom, 407; and -- 'Municipal Corporation Bombay v. Govind Laxman', AIR 1949 Bom, 229. They are all cases of petitions under Section 45, Specific Belief Act, but the principles dealing with various writs, whether under that section or under Article 226 of the Constitution, are generally identical. I have said that these cases fall in one category for it was held in all of them that the legal remedy by suit could not be held to be an adequate legal remedy within the purview of proviso (d) to the said section where the giving of a notice under some statutory provision (60 days' notice under Section 80, C. P. C., in the first two cases and one month's notice under Section 521, City of Bombay Municipal Act, in the third) was a condition precedent to the institution of the suit. A scrutiny of the facts of these cases will, however, show that in each of them the mischief sought to be avoided would have been perpetrated while the person wronged awaited the expiry of the period of notice.
In the first case it was the execution of the order of requisition under Rule 75A, Defence of India Rules. The same was the case in the second, and in fact the Government categorically refused to stay proceedings of arbitration for determination of the amount of compensation payable in respect of the requisitioned property in order to enable the owner to give the requisite notice as a preliminary to the filing of suit against the Government.
In the third case if the requisite notice were to be given the rate-payer would not have been able to obtain the injunction he sought to restrain the Municipality from expending municipal fund contrary to the provisions of the City of Bombay Municipal Act. Where, on the other hand, the purpose of the suit is not frustrated by the giving of the requisite notice, it cannot be said that the remedy by suit is not adequate simply because the institution of the suit is conditional on the giving of such a notice. Thus, it is not every suit which must be preceded by a statutory notice, but only a suit the purpose of which will be thwarted by the giving of such a notice, that can properly be described as affording no adequate remedy.
Judged by this standard, it cannot be said that the alternative remedy of a suit would not have afforded equally adequate or efficacious relief to the present petitioner. There is nothing to indicate -- indeed, the petitioner himself does not suggest, that the very purpose of the suit would have gone if he awaited the expiry of a notice to the Government under Section 80, G. P. C. To take into account the only mischief to which the petitioner might possibly have fallen a prey, there is no suggestion that, taking advantage of the period of notice, the Government would have sold the attached car. There is also nothing tangible to support the petitioner's contention that further property belonging to him would have been attached. On the contrary, an undertaking was given by the learned Government Advocate in the course of arguments before me that, if the petitioner were minded to file a suit, which must, of course, mean a suit without unreasonable delay, the Government would do nothing further to his detriment by taking advantage of the period of the statutory notice. I, therefore, hold that the alternative remedy of a suit could not in this case be said to be less adequate or efficacious.
13. The learned counsel for the petitioner argued the same point from another angle. He argued that the suit in the present case would have had to be a suit for a declaration that nothing was due by him to the State as compensation for, or price of, trees cut from State forest, and for an injunction to restrain the respondents from realising the amount. He further argued that he could not have obtained the consequential relief of injunction without establishing his right to the substantive relief of declaration, but that a declaratory relief of that nature which affected only the pecuniary relationship between the parties to a contract could not be granted under Section 42, Specific Belief Act. And he cited the following rulings in support of his contention:--'Sripatrao v. Shankarrao', AIR 1930 Bom, 331,--'Nathu Ram v. Mula', AIR 1937 Lah 25 and--'Gopal Das v. Mui Raj', AIR 1937 Lah 389.
The declaration in question in the present case would have nothing to do with any pecuniary relationship between the parties to a contract, but with alleged liability of the petitioner in damages as a tort-feasor. The main distinguishing feature, however, appears to me to lie elsewhere.
The rule enunciated in the above rulings appears to me to be founded, though not so expressed in the rulings, on the principle underlying the proviso to Section 42, namely, that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. If, therefore, A is under any pecuniary liability to B, the latter would not be granted merely a declaration as to the existence of the liability because, being able to seek the further relief of recovery of the amount due under the liability, he omits to do so. It will be noticed that in all the three rulings cited the person claiming declaration was in the position of B in the above illustration who could claim recovery of the amount in respect of which merely a declaration was sought.
The present petition is, however, not in the position of B but of A, so that he could only seek a declaration as to his non-liability since the question of seeking further relief in respect of that liability did not arise. The hypothetical suit suggested by the learned counsel for the petitioner would not consequently come under the ban of the principle underlying the rulings cited by him. It is true, as argued by him further on the authority of--'Kishori Lal v. Beg Raj', 54Pun L. R. 428, that Section 42, Specific Relief Act, is exhaustive on the subject of declaratory decrees, and that, therefore, a declaratory decree can be passed only in cases which are covered by that section, but the hypothetical suit in question would not violate that principle either. The ruling just referred to is based on--'Sheoparsan Singh v. Ramnandan Prasad Singh', AIR 1916 P. C. 78, which lays down:
'The Court's power to make a declaration without more is derived from Section 42 of the Specific Relief Act, and regard must therefore be had to its specific terms.'
The hypothetical suit would not, however, be for a declaration 'without more,' for there would also be the consequential relief of injunction.
Finally, all the above difficulties vanish if, instead of praying for a declaration that no amount is due by the petitioner to the respondents in respect of the alleged liability, he prays for the declaration that the trees, if any have| been cut by his contractors, belonged to the petitioner, besides praying for the said prohibitory injunction. In that case, the declaratory relief would clearly fall within Section 42 because the declaration would relate to petitioner's legal character as owner of the trees. Furthermore, the petitioner might confine himself merely to seeking the appropriate injunction.
14. This disposes of all the possible obstacles suggested by the learned counsel for the petitioner to the petitioner claiming relief by the alternative remedy of a suit. I, therefore, hold that the petitioner is not entitled to claim relief by invoking the extraordinary jurisdiction of this Court by a writ petition under Article 226 of the Constitution. It may be that no trees have in fact been cut by the petitioner's contractors, or that, even if cut, they belong to him, or that the respondents have adopted an illegal procedure for realising what they claim as their dues. But all these, and any other relevant matters can well be agitated by suit, and, if the petitioner succeeds in substantiating his allegations, he can obtain the appropriate relief, including relief of an ad interim injunction restraining the respondents from enforcing their claim pending the suit.
15. The application is rejected and the rulenisi obtained by the petitioner on 20-10-1951 isdischarged. The petitioner will pay the costs ofthe respondents, which I fix at Rs. 60/- (Rupeessixty).