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Jhelum Forest Company Vs. Conservator of Forests, Kashmir, North Circle - Court Judgment

LegalCrystal Citation
SubjectCivil;Arbitration
CourtJammu and Kashmir High Court
Decided On
Case NumberLetters Patent Appeal No. 3 of 1977
Judge
Reported inAIR1983J& K12
ActsArbitration Act, 1940 - Section 2
AppellantJhelum Forest Company
RespondentConservator of Forests, Kashmir, North Circle
Appellant Advocate J.L. Chowdhry, Adv.
Respondent Advocate S.A. Salaria, Adv.
DispositionAppeal dismissed
Cases ReferredJammu Forest Company v. State of Jammu and Kashmir
Excerpt:
- .....dispute be referred for arbitration to the nominated arbitrator, namely, the chief conservator of forests. clause 44 of the agreement provides as under:'every dispute which may at any time arise between the parties hereto in respect of this agreement or the subject-matter thereof shall be referred to the chief conservator of forests, unless, he is a party to the agreement in which case the dispute shall be referred to the government, whose decision thereon shall be final and binding on both the parties.'the learned single judge held that the alleged dispute was not a dispute in the contemplation of the arbitration clause and refused to make any reference. for this, he relied upon clause 11 of the agreement which reads;'the purchaser(s) will be allowed to commence fellings any time after.....
Judgment:

1. By virtue of an agreement deed dated 31st of Jan., 1962, the appellant purchased the right to convert and remove the Umber from the trees marked for felling in compartment No. 70, Buniyar Range, Jhelum Forest Division. The period of agreement was stipulated to last till the end of Nov., 1965. The appellant was, however, allowed several extensions and the last extension expired in the year 1969. The Government found that an amount of rupees three lakhs and odd was due and payable by the appellant on account of arrear royalty under the agreement. The competent authority issued a certificate to that effect and required the Collector to recover the amount as arrears of land revenue. Thereupon the appellant filed an application, being arbitration application no. 14 of 1975, in this Court. His contention was that the value of the remnant stock in the forest was four lakhs and odd and that he was entitled to claim allowance for this amount and as a result of set-off, the Government was liable to pay the excess amount to him. His further contention was that this position not being acceptable to the Government, a dispute existed between the parties. Relying upon Clause 44 of the agreement he prayed that the dispute be referred for arbitration to the nominated arbitrator, namely, the Chief Conservator of Forests. Clause 44 of the agreement provides as under:

'Every dispute which may at any time arise between the parties hereto in respect of this agreement or the subject-matter thereof shall be referred to the Chief Conservator of Forests, unless, he is a party to the agreement in which case the dispute shall be referred to the Government, whose decision thereon shall be final and binding on both the parties.'

The learned single Judge held that the alleged dispute was not a dispute in the contemplation of the arbitration clause and refused to make any reference. For this, he relied upon Clause 11 of the agreement which reads;

'The purchaser(s) will be allowed to commence fellings any time after the trees have been made over him/them and all produce must be removed beyond the coupe boundaries concerned or to the launching stream by the 15th of Dec. of the following year of a particular year's coupe. The original fellings must, however, be completed by the end of May of the following year of the various year's coupe, - failing which the purchaser(s) shall be liable to be charged up to Re. 1/- per tree per month remaining un-felled by the date specified above, at the discretion of the Conservator of Forests. All the timber remaining in the coupe after the period mentioned in this clause shall remain the property of the Government.'

The learned single Judge argued that with the expiry of the period of agreement, the remnant stock became the property of the Government and consequently it was idle to contend that any dispute existed between the parties as regards any such stock. The argument of the learned counsel for the appellant is that since the appellant had contended that the remnant stock was his property which was denied by the other side, a dispute clearly existed between the parties and the finding to the contrary of the learned single Judge was erroneous. In support of this argument he relied upon the decision of this Court in the case of Jammu Forest Company v. State of Jammu and Kashmir (AIR 1968 J & K 86). In that case it was held that if one party asserts a right and the other repudiates the same, that is a dispute. Similarly any question on which the parties join issue is in dispute irrespective of the fact whether or not the Court can legally enquire into it. It is analogous to a cause of action before a Civil Court. Where there at a difference between the parties about the liability of each other a dispute is clearly made out in terms of Section 2(a). Applying this test to the present case, we do not think that any dispute exists between the parties. Clause 11 clearly does not create any right in favour of the appellant in respect of the remnant stock. Consequently any assertion made by him that the remnant stock is his property cannot be said to be a assertion of a right. On a parity of reasoning the denial on the other side cannot be construed as a repudiation of a right asserted by the appellant. That does not, however, clinch the matter. Because, further argument of the learned counsel for the appellant is that by a subsequent order, being Govt. Order No. 170-Agri. of 1972 dated 16-2-1972, the Govt. was pleased to grant certain concessions to the forest lessees and one of these concessions was that a lessee shall be entitled to claim allowance for the remnant stock left by him in the forest at the expiry of his lease and, if that be so a dispute clearly existed and as such the learned single Judge was not justified in declining reference to arbitration. We are not, however, inclined to agree with this argument. The order, in our opinion, was not intended to operate retrospectively in the sense that it would be applicable to the leases which had become a spent-force with the lapse of time. On the other hand, the order was applicable to subsisting leases and the leases which would come into existence in future. In any case, the order did not operate to amend the bilateral agreement executed between the parties in regard to the right to convert and remove the timber from the forest. If that be so, any benefit claimable thereunder, would not fall within the arbitration clause. Consequently the said clause could not be invoked to claim any reference to arbitration on the basis of the said order.

2. In the view expressed above, the learned single Judge was justified in refusing to make reference to arbitration. That makes it unnecessary for us to go into the question whether the application for arbitration could lie before the appellant had made the payment or whether it was filed within the period of limitation prescribed therefor, in regard to which also arguments were addressed before us. We leave those questions open.

3. The result, therefore, is that the appeal fails. It is dismissed accordingly, but we make no order as to costs.


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