1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL WRIT PETITION NO.702 OF 2008 (Shri Satyanarayan s/o Malyaji Gaddawar vs. State and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND P.B. VARALE, JJ. DATED : AUGUST 3, 2009 Heard Shri Kilor, learned Counsel for the petitioner, Mrs. Dangre, learned Additional Public Prosecutor for the respondent no.1, Shri Dharmadhikari, learned Senior Counsel for the respondent no.2, Shri Parchure, learned Counsel for the respondent no.3, and Shri Badar, learned Counsel for the respondent nos. 4 to 6. Shri Kilor, learned Counsel for the petitioner, states that agreement dated 25.5.2004 was executed by the State Government in favour of respondent no.2 whereby respondent no.2 was 2 permitted to fell bamboo from the specified areas only for the purpose of putting it to use for making mats, boards and other bamboo articles. It is submitted that as per Clause 28 of the agreement, the respondent no.2 was required to use bamboo only for the purpose mentioned hereinabove. The duration of the agreement was from 25.5.2004 to 30.9.2013. It is submitted that respondent no.2 Company had given complete go-by to the terms and conditions of the agreement and committed breach thereof. It is further contended that Shri Dharamarao Atram was proprietor of the respondent no.2 and at the relevant time, was Minister for Transport, Social Justice, Welfare of Nomadic Tribes in the Government of Maharashtra. The grievance of the petitioner is that respondent no.2 continued to fell bamboo from the specified areas from the date of execution of agreement till it is cancelled by the State Government with effect from 19.5.2007, however, 97% bamboo was sold in the open market for higher price and only 3% thereof was put to use for the purpose for which agreement was executed by the State Government with the respondent no.2. It is, 3 therefore, contended that activity carried out by the respondent no.2 was not only in breach of the conditions of the agreement, but was also detrimental to the society as well as frustrated the very purpose of the agreement. It is submitted that this is a case where the Forest Department was required to take stringent action against the respondent no.2 Company for violation of breach of terms and conditions of the agreement. Learned Counsel Shri Kilor further states that the State Government cancelled the said agreement with effect from 19.5.2007 and, therefore, grievance of the petitioner in the petition pertains to the period from 25.5.2004 till 19.5.2007. It is further contended that in view of affidavit filed on behalf of respondent nos. 1, 4, 5 and 8 it appears that amount of Rs.5 lacs is recovered by the Forest Department from the respondent no.2 Company by forfeiting the Bank Guarantee though total amount to be recovered is Rs.2,87,46,829/-. It is submitted that during pendency of the petition, as per Clause 49 of the agreement, the matter is already referred to the 4 Arbitrator and it is sub judice before the Arbitrator. Learned Counsel Shri Kilor at this stage does not press the petition and prays that if outcome of the arbitration proceedings affects the interest of the Department and Society at large adversely, in that event, liberty may be given to the petitioner to approach this Court for necessary directions. Shri Badar, learned Counsel for the respondent nos. 4 to 6, does not dispute the above referred factual aspects of the matter. Shri Dharmadhikari, learned Senior Counsel for the respondent no.2, states that allegations made by the petitioner are refuted by the respondent no.2 Company and since matter is referred to the Arbitrator as per Clause 49 of the agreement, the Arbitrator may be permitted to adjudicate the same on merits of the matter in accordance with law and procedure applicable. We have considered the rival contentions of the learned Counsel for the parties and also taken 5 into consideration the undisputed facts. Since the matter is sub judice before the Arbitrator, it will not be proper on our part to express our opinion in respect of the issue, which is pending before the Arbitrator. However, we want the Forest Department as well as State Government to be vigilant in future and must ensure that if the party in whose favour such public contracts are executed with specific purpose to be achieved, commits breach of conditions of such contracts, which result in affecting the public interest as well as public exchequer, civil and criminal action against such party must be taken in accordance with law forthwith. In future, if contract of felling bamboo tree is given in Vidarbha Region to the persons, who are eligible and if any breach of terms and conditions of such contract is committed by anyone of them, we want the Chief Secretary to ensure that the concerned Authorities shall take appropriate action against such persons/companies forthwith and such Authorities should not wait till some public spirited person approaches this Court for necessary directions. 6 In the backdrop of the above referred facts and circumstances, we do not want to keep the petition pending at this stage and same is disposed of accordingly with liberty to the petitioner as prayed for. JUDGE JUDGE khj