IN THE MATTER OF AN APPLCIATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. -------- CWJC No.973 of 1995 M/S GOPAL KATHA INDUSTRIES PVT. LTD. THROUGH ITS DIRECTOR, MOTILAL AGRAWAL S/O LATE ARJUN DAS AGRAWAL TEKARI ROAD, GAYA, PS-KOTWALI, DISTT-GAYA--PETITIONER Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECY. DEPARTMENT OF FOREST, GOVT. OF BIHAR, SECRETARIAT PATNA 3. THE JOINT SECY. DEPARTMENT OF FOREST GOVT. OF BIHAR, PATNA 4. THE CHIEF CONSERVATOR OF FOREST-CUM-MANAGING DIRECTOR, STATE TRADING HINOO, RANCHI 5. THE BIHAR STATE FOREST DEVELOPMENT CORPORATION LTD THROUGH THE MANAGING DIRECTOR, PATLIPUTRA COLONY, PATNA------------------------------- RESPONDENTS with CWJC No.6119 of 1994 M/S KUMAR KATHA INDUSTRIES PVT. LTD. TEKARI ROAD, GAYA PS-KOTWALI, DISTT.-GAYA THROUGH ITS MANAGING DIRECTOR SHRI KRISHNA KUMAR SINGH S/O LATE SURAJDEEP NARAYAN SINGH, TEKARI ROAD PS- KOTWALI,DISTT-GAYA-PETITIONER Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECY. DEPATMENT OF FOREST GOVT. OF BIHAR, PATNA 3. THE JOINT SECY. DEPATT. OF FOREST, GOVT. OF BIHAR,PATNA 4. THE CHIEF CONSERVATOR OF FOREST-CUM-MANAGING DIRECTOR, STATE TRADING RANCHI 5. M/S BIHAR WOOD PRODUCTS PVT. LTD. PS-KOTWALI DISTT- HAZARIBAGH THROUGH ITS MANAGING DIRECTOR SHRI MUKESH 6. M/S BETTIAH KATHA FACTORY PVT. LTD. PS-BETTIA DISTT- WEST CHAMPARAN THROUGH ITS MANAGING DIRECTOR SHRI RAJESH KUMAR TOD. 7. THE BIHAR STATE FOREST DEVELOPMENT CORPORATION LTD. THROUGH ITS MANAGING DIRECTOR, PATLIPUTRA COLONY, PATNA-------------------------------RESPONDENTS. ----------- For the Petitioners: Mr. Chtranjan Sinha, sr.Advocate M/s R.K.Prasad & Tej Bahadur Roy Advocates For the State: Mr. Ram Bilash Mahto AAG-8 For Repondents 4&5: Mr. Alok, Advocate In CWJC No. 6119/94 ----------- P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J. Both the matters have raised similar kind of question of law therefore are being considered and disposed of by a common order. - 2 - This is not the only litigation which is coming to the High Court for fixation of price of Khair wood by the State for the year 1989-90. First bout of litigation started in the year 1990. CWJC No. 6019 of 1990 and the decision rendered therein dated 2nd March 1994 (Annexure-2) had led the foundation to the dispute. In fact the issue was considered in detail by the Division Bench and it declared that the fixation of price by the State of Bihar as contained in annexure-1 was arbitrary and bad. The Court need not take into consideration all the submissions which had been made on behalf of the petitioners and the State but the conclusion has relevance. The Court would like to quote paras 16 of the decision read with paragraph 17. They are reproduced hereinafter for ready in reference: Paragraph:16: “Having considered the aforementioned law laid down by the Supreme Court we are of the view that as the respondents purported to have proceeded on the basis that they followed the U.P. pattern and in that view of the matter it should have considered the matter keeping in view all the factors which were prevalent in the State of U.P.. We, however, do not suggest that the State is bound to follow the price fixed in the State of U. P. inasmuch as the price has to be fixed in the State of Bihar keeping in view the productivity, the cost of production, the quality of the product and other relevant consideration. Paragraph 17: For the reasons aforementioned, in our opinion, the matter should be considered afresh by the State of Bihar which may pass appropriate order in accordance with law. However, in the meanwhile, the petitioners may be supplied Khair wood at the rate as indicated by Govt. letter dated 27th December, 1991, a copy whereof has been produced before us by the learned Standing Counsel No.1 being Memo No. 2612/91, subject to the ultimate order that - 3 - may be passed by the State of Bihar in terms of this judgment which would be binding on all the parties.” Not much need to be stated on the findings and the opinion recorded by the Division Bench on the issue except that on remand to the respondents they have gone back to doing the same thing which was declared to be illegal by the Division Bench. The subsequent decision on remand is the decision dated 23.8.1994 and is annexure-4 to the writ application. The communication issued by then Commissioner-cum-Secretary, Department of forest and Environment states and reiterates that the fixation of price of Khair wood made in the year 1989-90 was correct and no further re-look was required. Annexure-4 therefore is under challenge in the present writ application. The conduct of respondents has been labled by learned Senior Counsel representing the petitioner, to be open defiance on the face of it, if not in the teeth of the decision of the Division Bench. It is being recorded that annexure-4 reiterates that fixation of price for the year 1998-90 by so called high power committee suffers from no illegality and therefore no re-fixation as such is required. If that position is accepted by this Court then the impugned order contained in annexure-4 has the effect of nullifying the judicial order passed by the Division Bench of this Court. Whether the executive of this land have that authority by executive fiat under the present law of the land is required to be - 4 - looked into. It goes without saying that a judicial order can only be nullified by a judicial intervention of a higher forum or Court. It is not for an executive to declare an order of Court to be irrelevant or misplaced by an office order as it would not only go against the principle of rule of law but also lead to chaos. The Court treats such a stand of the respondents to be contemptuous as well. A reading of Division Bench decision specially paragraphs 16 and 17 coupled with tenor of the order contained in annexure-4, the Court is left with no option but to quash annexure- 4 and allow the writ application. Other aspect and relief prayed for by the petitioners in the writ application with regard to award of tender or contract for dealing in Khair wood has lost its meaning due to pendency of the writ applications and the subsequent development in law. Dealing in Khair wood stands banned and to that extent no contract would be awarded in favour of the petitioners and that aspect of the matter is allowed to rest. Matter is remanded afresh after much waste of public money, time and energy in the above mentioned circumstances to the authority as persons at the helms of affairs at the relevant time had failed to perform their duty and obligation under the constitution by passing an order in clear violation and in teeth of Division Bench decision contained in annexure-2. - 5 - On remand, if the authorities are still interested may refix the price. Let them do so within a period of two months from the date of production or communication of a copy of this order in the background of Annexure-2. In the alternative learned Senior Counsel has also submitted that the petitioners are now tired of litigation and meeting the legal expenses therefore are more than willing to pay price of the Khair wood fixed at 30% of the previous price instead of 37.7% which is being demanded by the State as price for buying peace. If the State is so interested they may even consider the offer of the petitioners for putting the dispute to rest. The demand made upon the petitioners to that extent stands quashed in the light and the findings recorded as above. Both the writ applications are allowed to the extent indicated above. PATNA HIGH COURT PATNA DATED THE 11TH MAY,2010 NAFR/RPS/SR,SECY. (Ajay Kumar Tripathi, J.)