0802caw290.10.odt 1/5 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. CAW NO. 290/2010 IN WRIT PETITION NO. 3659 OF 2009 Ballarpur Paper Industries Ltd. & another :: PETITIONERS -: Vs. :- The State of Maharashtra ....... :: RESPONDENT -------------------------------------------------------------------------------------------------------------------------------------------- Mr. Vijaysingh A. Thorat, Senior Counsel for the petitioners. Mr. M. P. Badar, Standing Counsel for the respondent. -------------------------------------------------------------------------------------------------------------------------------------------- CORAM : A. H. JOSHI & F. M. REIS, JJ. DATE : 08/02/2010. ORAL ORDER : 1. The present writ petition is filed by the petitioners challenging the order passed by Joint Secretary (Forest) to Government on 15th July, 2009 published in official gazette dated 16th July, 2009 at annexure Z-15 deciding the price of the bamboo to be extracted and purchased by the petitioners to be Rs. 1,495/- per metric tonne with an annual escalation of 5% or on the basis of wholesale price index, whichever is higher for period 2004-05 to 2013-14 and with the provision to redetermine this rate after five years i.e. 2010-11. 2. In the midst of admission-hearing on earlier date this Court had suggested that the controversy needs sorted out by reference thereof to arbitration preferably headed by the retired Judge of the High Court and assisted by suitable Officers of the Department. In response to the suggestions of the Court, the petitioners agreed in principle, however, according to learned standing Counsel Mr. Badar, this would need approval from Cabinet. 3. We have in said background issued Rule in the writ petition. 0802caw290.10.odt 2/5 4. Learned Standing Counsel for the respondent No. 1 Shri Badar has requested this Court to pass orders on C. A. No. 290/2010. 5. During the pendency of this petition, present application, which we are dealing with now, has been filed by the respondent-State. 6. It is clear that as the price of bamboo revised by the respondent was not acceptable to the petitioners, and it has filed the present writ petition as well as did not extract and purchase the bamboo during current season and during preceding two years. 7. Apparently no interim arrangement was worked out during the pendency of earlier writ petition No. 5361/2008 as well during pendency of this petition since its filing which was done on 12/8/2009 as regards extraction and purchase of bamboo by the petitioners. 8. The respondent-State has prayed for in this application, a direction to the petitioners to harvest bamboos from the leased areas as per terms and conditions of the agreement and further directed to pay price thereof at the rate of Rs. 1,817/- per metric tonne subject to the decision present writ petition. 9. This application is not opposed as far as the prayer for direction for harvesting is concerned. The prayer as to price factor is opposed by oral submissions. The foundation of submissions is the facts already on record in the body of writ petition. 10. It is a common factual ground that due to non harvesting and failure to purchase the bamboos by the concerned, namely the petitioners, the State Government and the indirect beneficiaries, i.e. harvesting labours as well as the employees of the factory, have suffered and the petitioners are willing to harvest the bamboo and purchase the same to the maximum possible extent within the remainder period of harvesting season. 0802caw290.10.odt 3/5 11. According to the petitioner-company, since it has already challenged the fixation of rate done by the Government, it being unjust and ineconomic, apart from other legal grounds of challenge, it would not accept the price for which direction has been prayed for in the civil application. 12. This Court has noticed that the parties are also in agreement on the point that :- (a) Non harvesting of bamboos would result in destruction of the said produce as the same is not likely to be used by other individual. (b) The Government is not likely to get the money whatsoever if bamboo is not harvested and revenue which is potential will be lost forever. (c) It is also urged that non harvesting results in unfavourable effect on further growth of and sprouting of rizomes of bamboo. (d) The workers, who would be entitled to earn some wages after the harvesting is done, would be primarily denied the facility of work and earn the wages. 13. Now, therefore, it is clear that the bamboos shall have to be harvested by the petitioner. Only question which remains to be decided is, what price of the bamboos so harvested shall be paid/payable by the petitioner. 14. The decision as to price finally payable has to be decided after reference of the matter to the Arbitrator if the State Government ultimately agrees for it, and alternately upon what may be decided in present petition. This Court has therefore to decide as to what direction be given for payment to be made on ad hoc basis and other arrangements to secure the interest of the public exchequer. 15. We had therefore called upon learned Senior Advocate Shri Thorat to take instructions and propose ad hoc payment and other as to security, etc. which he has proposed as follows:- i) The petitioners shall pay by way of ad hoc payment towards price at the rate of Rs. 700/- per metric tonne of bamboo. ii) Insofar as the balance payment if any from the amount of price as would be adjudicated by the Arbitrator, or by the order of this Court, the petitioner shall furnish solvent surety to the satisfaction of the Registrar of this Court. 0802caw290.10.odt 4/5 16. The learned standing Counsel for the Forest Department Shri Badar states after instructions that the amount @ Rs. 700/- Per Metric Tonne is too meagre. The price fetched for the bamboos particularly in Bhamragarh area is Rs. 1,300/- and above, per metric tonne, and therefore, this Court may fix such higher amount as nearly as the amount referred to in the notification impugned. 17. Mr. Thorat, learned senior Advocate in rejoinder adds that price of Rs. 1,300/- cannot be taken into consideration for two reasons :- (a) It is a price of selected bamboos of commercial utility. (b) The Tonnage weight of bamboo so sold @ Rs.1,300/- per metric tonne is too small as compared to the volume of purchase by petitioner and said amount is not fair market price prevalent anywhere including in neighbouring States. 18. Considering the rival contentions and various figures which have come on record through the pleadings and impugned order, this Court considers it appropriate to direct the petitioners to pay as ad hoc and by way of payment towards price for the bamboos at the rate of Rs. 800/- per metric tonne to the Government, deposit an amount of Rs. 200/- per metric tonne in this Court, furnish solvent surety to the satisfaction of the Registrar (Judicial) of this Court for an amount of Rs. 500/- per metric tonne, and further furnish an undertaking that such additional amount, if found due and payable, would be paid without any coersive or steps for recovery according to law, thereof within such time the Court or Arbitrator may direct. 19. We, therefore, partly allow this civil application and direct as follows: (1) The petitioners shall harvest and appropriate to purchase the bamboos from the area leased out to it. (2) The harvesting shall be done to optimal extent and shall be commenced expeditiously. (3) We direct the respondent that necessary authorization shall be issued in favour of petitioners within one week from today and petitioners shall start the harvest within one week from receipt of such authorization. 0802caw290.10.odt 5/5 (4) The mode of payment of price and its security shall be as follows:- (a) The amount of Rs. 800/- per metric tonne shall be payable by petitioners forthwith to the Government in accordance with the terms of the agreement and rules as ad hoc payment on account of price. (b) An amount of Rs. 200/- per metric tonne be deposited in this Court in the same manner in which the amount is due and payable under the agreement and rules. (c) The petitioners shall furnish solvent surety for the price of the bamboos at the rate of Rs. 500/- per metric tonne to the extent of estimated amount based on the weight of the bamboos to be purchased. This amount shall be specified by filing an affidavit, which shall be filed by the responsible officer of the petitioners based on average consumption in previous five years. This compliance shall be done within fifteen days from today with a copy thereof to the respondent. (d) An undertaking shall be furnished by the petitioners before the Registrar of this Court specifying that if any amount is found due and payable after conclusion of the dispute in case the dispute is referred to the Arbitrator, according to order which may be passed in this petition. (5) Authenticated copy of this order be furnished to the parties, as per rules. (6) Civil application is disposed as above. Parties are directed to bear own costs. JUDGE JUDGE wwl