Abdul Gani Lone vs J&K Forest Development Corporation & Others

Sanjeev Kumar, J

1) The petitioner claims to be a registered Amani Labour Mate working with J&K Forest Development Corporation [“the Corporation”]. In the year 2015, the petitioner was engaged as Mate for extraction/transportation of timber from Compartment No.55/Matchil of Zangli Forest Division by the Corporation which work the petitioner completed successfully. Vide sanction 31 of 2015 dated 18.12.2015, post facto sanction was accorded for the work in question and the rate of Rs.168.38 per cft was fixed to legitimize the execution of contract. A formal deed of agreement was also executed between the Corporation and the petitioner. Subsequently, the petitioner was also allotted additional marking to the tune of 0.026 lac cft. standing and firewood 50 quintals in Compartment No.55/Matchil, providing therein specifically that the rate structure for this additional marking will be communicated to the petitioner separately. The Divisional Manager concerned was also asked to obtain a stamped undertaking from the petitioner to the effect that the rate and other terms and conditions, as may be fixed by the SFC Management, would be acceptable/binding upon him in letter and spirit. Thereafter vide sanction 50 of 2017 dated 18.09.2017, the SFC Management fixed the rate of Rs.161.70 per cft. for extraction of timber and Rs.133.40 per quintal for extraction of firewood. The petitioner accepted the rates without any protest or demur.

2) On the analogy of allotment of additional markings in Compartment 55/Matchil, the Corporation decided to allot markings to the tune of 0.042 cft standing and firewood (100 quintals) in Compartment 47/Matchil. Pursuant to a decision taken by the Corporation on 18th May, 2018, the Chief General Manager (North) vide its communication dated 25th April, 2019, asked Divisional Manager, Extension Division Zangli, to allot the aforesaid work to the petitioner with a stipulation that the rate structure in this case also would be communicated separately. There was a further stipulation to obtain a stamped undertaking from the petitioner to the effect that the rate structure and other terms and conditions that may be fixed by the SFC Management would be acceptable/binding upon him.

3) Pursuant to the aforesaid communication, the General Manager (North), on the recommendations of the Divisional Manager, allotted the work of extraction/transportation of additional markings in Compartment No.47/Matchil of Zangli Forest Division on Amani basis in favour of the petitioner. The petitioner accepted the allotment, extracted/transported the requisite timber, standing as well as firewood, to the satisfaction of the Corporation. As is the consistent practice with the Corporation, the Management decided the rates to be paid to the petitioner for the work executed by him in Compartment No.47/Matchil. Accordingly, vide sanction No.230 of 2019 dated 30.09.2019, post facto sanction was accorded for allotment of work of extraction/transportation of additional marking to the tune of 0.082 lac cft from Compartment No.47/Matchil at the rate of Rs.130.47 per cft. The amount payable to the petitioner was, accordingly, worked out and released in his favour.

4) The petitioner has so far received 90% of the payment due to him and the release of rest of the amount is awaiting completion of certain formalities at the end of the petitioner. The petitioner, after having received most of his payment on the rates fixed by the Corporation in terms of sanction No.230 of 2019, has filed the instant petition challenging the unilateral fixation of the rates by the SFC Management.

5) Mr. Mir Majid Bashir, learned counsel for the petitioner, submits that the rate of Rs.130.47 per cft fixed by the SFC Management is arbitrary, irrational and to the serious prejudice of the petitioner. He submits that for the similar work and in the similar terrain/topography, the petitioner was paid the rate of Rs.161.71 per cft and Rs.168.38 per cft and, therefore, the fixation of rate of Rs.130.47 per cft is arbitrary and violative of Article 14 of the Constitution of India.

6) The respondents have filed their reply affidavit. It is submitted that at the time of allotment of work in favour of the petitioner, he was made aware that the rate structure would be communicated separately and whatever rate the SFC Management ultimately fixes would be binding upon him. The petitioner accepted the allotment with the aforesaid conditions and executed the work. The SFC Management ultimately took a decision having regard to various factors and approved the rate of Rs.130.47 per cft. The petitioner accepted the rate and received 90% of the payment whereas rest 10% payment has to be released in favour of the petitioner after he completes requisite formalities.

7) Having heard learned counsel for the parties and perused the material on record, it is seen that the Corporation has been engaging the Mates for extraction/transportation of timber in various compartments of different forest divisions without inviting tenders or offers from the intending Mates/Labour contractors. The allotment of work of extraction/transportation of timber for consideration is nothing but a distribution of largesse or a benefit on the citizens and, therefore, such largesse or benefit cannot be distributed by the Corporation which is a “state” within the meaning of the term contained in Article 12 of the Constitution of India without inviting tenders or following similar process of law. It is further seen that in the instant case, the petitioner has been picked up from nowhere for allotment of contract for extraction/transportation of timber in two compartments of Zangli Forest Division.

8) Be that as it may, the petitioner was thrice granted this contract. Firstly, the contract was granted in respect of Compartment No.55/Matchil at the extraction rate of Rs.168.39 per cft. Obviously, the petitioner accepted the rate and executed the work. In the year 2017, he was given additional marking in the same compartment and this time at the extraction rate of Rs.161.70 per cft. This rate too was not disputed by the petitioner and the amount due was accepted by him without any protest or objection. It needs to be noticed that additional marking in Compartment No.55/Matchil was allotted to the petitioner on the following terms:

The rate structure shall be communicated separately;

The petitioner shall give a stamped undertaking to the effect that the rate structure, as may be fixed by the SFC Management, shall be acceptable and binding upon him;

9) As stipulated in the communication dated 25th August, 2017, the SFC Management on its own fixed the extraction rate of Rs.161.70 per cft. This was, as agreed to at the time of taking over additional work in Compartment No.55/Matchil, also accepted. It is on similar terms and conditions, the markings in compartment No.47/Matchil were also handed over to the petitioner for extraction and transportation of timber. The communication dated 25th April, 2019 issued by Chief General Manager (North) makes it abundantly clear that it was left to the SFC Management to determine the rates of extraction etc. On the similar lines, the petitioner was asked to give an undertaking on stamped paper that whatever rates are fixed by the SFC Management, the same would be acceptable to him. Pursuant to the aforesaid communication, the petitioner took over the work and executed the same to the satisfaction of the respondents. The Management ultimately worked out and fixed the rate of Rs.130.47 per cft. Even this rate was not initially protested by the petitioner. He received most of the payment and as per respondents 90% and raised the dispute thereafter. The petitioner entered into a contract with the respondents with his eyes wide open and knew that the SFC Management will fix the extraction rates as it had done earlier also and those rates would be binding on him. He accepted the allotment, entered the forest and extracted/transported the marked timber. It is, thus, too late for the petitioner to object to the fixation of rate by the SFC Management. As observed earlier, such labour contracts cannot be allotted by the State to handpicked persons and rather should be thrown open for competition. Had the Corporation invited quotations or tenders, it would have automatically arrived at a just rate for allotment of the contract. Surely, it has not happened in the instant case. The petitioner, who is obviously a blue eyed person of the Corporation, had been doing the work of extraction of timber with the Corporation not on the terms and conditions mutually settled and agreed but on the trust of the Management. He had been accepting the rates whatever were fixed by the Management. It is only in the instant case when the extraction rate fixed by the SFC was slightly on the lower side that the petitioner resented, that too after having received 90% of the payment without any protest. Such conduct of the petitioner cannot be appreciated. The rates of extraction in a particular compartment are fixed keeping in view several factors like the nature of terrain, topography and the length of lead for transportation of timber etc. etc. The Management is expected to look into all these factors before fixing a particular rate for extraction of timber in a particular compartment in a forest division. The Court is neither an expert in the matter nor has before it requisite material to come to a contrary finding. Otherwise also, this Court in the exercise of its extraordinary writ jurisdiction cannot be expected to substitute its opinion for the opinion of the SFC Management. It is true that if the rates which were given to the petitioner for extracting timber in Compartment No.55/Matchil are compared with the rates given for extraction of timber in Compartment No.47/Matchil, there is a variation. From the perusal of record produced by Mr. Mubeen Wani, learned counsel for the respondents, I could also find some communications of Range Manager indicating that the terrain and topography of the two compartments is also similar though there is difference of distance of lead i.e. the transportation distance of four kilometers. The Range Manager has not spelled out as to which of the two compartments is farther from the depot where the extracted wood after transportation is to be stocked. In the absence of relevant material available, it is not even possible for me to comment as to whether the determination of rate of Rs.130.47 per cft is unfair and unreasonable in the facts and circumstances of the case. Since the terms and conditions of work including the extraction rates are the matters to be determined by the parties by an agreement, as such, it is not permissible for this Court to impose on either of the party any additional or improvised term of contract. Undoubtedly, there is no formal agreement executed between the parties yet there are communications on record which clearly spell out the formation of a contract between the petitioner and the Corporation.

10) For the foregoing reasons, I find no merit in this petition and the same is, accordingly, dismissed. It is, however, provided that notwithstanding the dismissal of this petition, the Corporation may, on its own, have a re-look on the rates of extraction per cft. determined by it in the light of the facts projected by the petitioner and recommendations of Range Manager on record.

11) The record be returned to learned counsel for the respondents.