IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 WP(C).No. 32841 of 2009(A) -------------------------- PETITIONER(S): --------------- M/S.COCHIN TIMBER, ASSAMANNOOR P.O., ODAKKALI, PERUMBAVOOR, REPRESENTED BY PROPRIETOR C.V.MOHAMMED RAFI, CHIRAPPULLY HOUSE, ASSAMANNOR P.O., ODAKKALI, PERUMBAVOOR, ERNAKULAM. BY ADV. SRI.M.C.JOHN RESPONDENT(S): --------------- 1. THE DIVISIONAL FOREST OFFICER, CHALAKUDI. 2. THE FOREST RANGE OFFICER, PALAPPILLY RANGE, PALAPPILLY, CHALAKUDI. 3. THE FOREST RANGE OFFICER, VELLIKULANGARA, CHALAKUDI. 4. HARRISONS MALAYALAM LTD., BRISTOW ROAD, W.ISLAND, COCHIN-682003. GOVERNMENT PLEADER SRI.M.P.PRAKASH FOR R1-3 ADV.SRI.E.K.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- W.P.(C).NO.32841 OF 2009 () ----------------------------------- Dated this the 3rd day of February, 2010 J U D G M E N T S.S.Satheesachandran,J. The above writ petition has been placed before us on a reference made by the learned Single Judge in view of some directions/orders issued by a bench of this Court in a previous writ petition and the contempt proceedings, which have some nexus with the disputes emerging for consideration in the petition. 2. Petitioner in the writ petition is a contractor engaged by the 4th respondent for cutting and removing old rubber trees from its rubber estates on payment of the advance seigniorage value calculated by the 1st respondent. Challenge raised in the WPC.32841/09 2 writ petition is against the directions issued in Ext.P4 letter issued by the 3rd respondent Forest Range Officer to the extent it restricts the number of lorry loads of timber and fire wood transported from the estates of the 4th respondent. The petitioner, contractor wanted respondents 2 and 3, the forest officials to measure the cut down rubber trees by assessing the volume of such woods using Local Volume Table, also known as 'N.R.Nair Volume Table' as prescribed in Ext.P8 without insisting for measuring each and every log of rubber wood, or in the alternative, to assess the volume by stacking on the ground or by weighing. Issuing Ext.P4 letter to the 4th respondent, the 3rd respondent had insisted for minimising the transportation of timber loads and fire woods to two to three loads per day to facilitate the measurement of the rubber logs and fire woods by the department staff in the felling site itself. In Ext.P4, it was imputed that the inspection carried over had detected variations over the quantity of loads transported with reference to the passes issued for its removal from the estates. The main grievance espoused by the petitioner contractor is that WPC.32841/09 3 measuring out of each rubber log and also restrictions imposed for transportation of timber loads and fire woods limiting it to two or three loads per day would cause inordinate delay in removing the rubber loads and fire woods from the estates, and so much so, the alternative methods suggested for carrying out the measurement by volume and removal of the restrictions imposed as to the number of loads to be transported have to be granted by quashing directions in Ext.P4 letter issued by the 3rd respondent. 3. Respondents 1 to 3, the forest officials filed a counter affidavit contending that there is no privity of contract between these respondents and the petitioner, who is a contractor under the 4th respondent, and so much so, petitioner was incompetent to seek any relief impeaching the merit of Ext.P4 letter issued to the 4th respondent company. In the counter affidavit, these respondents submitted that the directions issued in Ext.P4 letter restricting the transportation of the number of timber loads and fire wood loads upto two to three loads per day was only a WPC.32841/09 4 transitory measure and it will not be insisted upon. As regards the directions issued for measuring out each rubber wood and assessing the seigniorage value accordingly, it was submitted that the respondents were bound to follow such a course in view of the solemn undertaking given before this Court in a contempt proceedings initiated previously by the 4th respondent company imputing non-compliance and disobedience of the directions issued in Annexure R1 (b) judgment in W.A.No.2004 of 2007. In the contempt proceedings, the respondents have filed a statement that the seigniorage value of the timber will be fixed measuring the timber of different sizes individually. Accepting that statement under Annexure R1 (c) judgment dated 12.2.2008, it is submitted, this Court has closed the contempt proceedings. 4. Operation of the directions in Ext.P4 letter restricting the transportation of timber woods and fire woods to two or three loads per day was stayed by an interim order dated 20.11.2009 passed in the writ petition. The learned Single WPC.32841/09 5 Judge, however, noticing the statement filed by the respondents Forest Officials in the contempt proceedings and Annexure R1 (c) order passed by this Court closing such proceedings accepting the statement so filed, has referred the petition expressing the view that the method to be adopted in assessing of seigniorage value of rubber trees cut and removed require to be examined by a Division Bench of this Court. 5. We heard the counsel on both sides. Though the Special Govt.Pleader appearing for respondents 1 to 3 and the learned counsel appearing for the petitioner and also the 4th respondent advanced arguments touching upon various aspects relating to the locus standi of the petitioner and entertainability of the writ petition at its instance, the method of measurement to be followed in assessing the seigniorage value of the timber and fire woods cut and removed and its transportation from the estates of the 4th respondent etc., we find advertence and consideration of those aspects are not necessary for disposing of this writ petition. In the counter affidavit filed, the respondents 1 to 3, WPC.32841/09 6 forest officials, have unequivocally stated (in paragraph 10) that the directions issued restricting the transportation of timber and fire woods to two to three loads per day was only temporary and it will not be insisted upon. So much so, the main relief canvassed in the writ petition for quashing the directions in Ext.P4 letter limiting the transportation of timber and fire wood loads to two to three loads per day does not survive for consideration. We do note that respondents 1 to 3 have privity of contract only with the 4th respondent company and not with its contractor, though as per the statutory regulations, these respondents have to discharge various duties as to measuring of the timber loads and fire wood loads, fixing of the seigniorage value, permitting transportation of the timber loads from the estates only on passes issued etc. recognising the status of the petitioner as a contractor under the 4th respondent company. But those acts by the respondents are hardly sufficient to empower the petitioner, a contractor under the 4th respondent, to seek a writ/order/direction as against respondents 1 to 3 to regulate the performance of the contract, and its obligations WPC.32841/09 7 under the agreement entered with the 4th respondent company. No doubt, the situation might have been different had the 4th respondent company espoused and established the grievance, whatever that be, in relation to the methods of measurement, fixation of seigniorage value, transportation of timber and fire woods of the rubber trees cut and removed from its estates. There is also considerable force in the stand taken by respondents 1 to 3 that they are bound by the statement given in the contempt proceedings, which had been accepted by this Court for dropping that proceedings by Anenxure R1 (c) judgment. The 4th respondent as the petitioner had filed a writ petition as W.P.(C).No.17767 of 2007 seeking a declaration that the Kerala Grants and Leases (Modification of Rights) Act, 1980 is unconstitutional. In the above writ petition, they have also sought for a writ/direction to quash the decisions of the forest officials directing them to pay seigniorage rate on the rubber trees to be cut and removed from its estate. Vide Annexure R1 (a) interim order, subject to the conditions imposed, passed in the writ petition transportation of the trees cut down from its WPC.32841/09 8 estates, with the permission of the forest officials, was allowed as an interim measure. The 4th respondent was directed to keep correct and accurate accounts in respect of the trees which were to be cut and removed from its estates, making available such accounts open for inspection by the Conservator of Forests or any officer authorised by him. The 4th respondent was also directed to inform the Conservator of Forests before removing the cut down trees. The Conservator of Forests or any officer authorised by him, was directed to cause inspection of such trees within the period of one week from the date of intimation, and, then, permit the 4th respondent to remove the same. The 4th respondent was also directed to furnish a bond with sureties for the amount of seigniorage payable on the trees to be removed under the Kerala Grants and Leases (Modification of Rights) Act, 1980 at the rate of Rs.530/- per metric tone to the satisfaction of the Conservator of Forests or officer authorised by him in that regard. The interim order so passed (Annexure R1 (a)) was challenged by the forest officials in W.A.No.2004 of 2007. The writ appeal was disposed vide Anneuxre R1 (b) WPC.32841/09 9 judgment dated 11th October, 2007, by which, except to the modification made in directing payment of the seigniorage value at the rate prescribed in the schedule in lieu of the bond to be executed by the 4th respondent company, Annexure R1 (a) interim order was confirmed. Imputing the flouting of the directions given under Annexure R1 (b) judgment, the 4th respondent initiated contempt proceedings against the forest officials giving rise to Cont.Case (C).No.152 of 2008. That contempt proceedings was closed vide Annexure R1 (c) judgment dated 12.2.2008. In the contempt proceedings, the forest officials, the present 1st respondent in the writ petition, has filed a statement that the value of the seigniorage in respect of timber will be assessed on measuring such timber individually. The relevant portion of the statement, which has been quoted in Annexure R1 (c) judgment reads thus: “It is submitted that the petitioner will have to first cut the trees and keep the same available for inspection. As timber will be of different sizes, it will have to be measured WPC.32841/09 10 individually. After measurement by the respondents, the respondents will intimate the petitioner the value of seigniorage payable and challan will be issued for the same. On payment of seigniorage value of timber, the petitioner is permitted to remove the timber logs. In the case of the fire wood also after cutting the same will have to be stacked and the respondents will fix the seigniorage value payable and challan will be issued for the same. After paying the seigniorage amount, the fire wood will be allowed to be removed from the estate.” In the light of the statement made as above, observing that the respondents have not wilfully and deliberately disobeyed the orders and directions of this Court, the contempt proceedings were closed recording of the statement and directing the 2nd respondent Divisional Forest Officer to faithfully follow whatever is stated in his statement. 6. In view of the statement made as aforesaid before this Court in the contempt proceedings, which had been ordered to be recorded with direction to follow faithfully, according to the WPC.32841/09 11 respondents 1 to 3, it is not open to them nor is it possible to deviate from such statement as to the method to be followed in measuring out the timber, as these respondents have undertaken that the timber, which are of different sizes, will be measured individually. In view of the statement given and so recorded by this Court, we do find considerable force in the submissions made by the learned Special Govt. Pleader that the orders passed in Annexure R1 (c) judgment accepting the statement filed by them, strict compliance of the statement made would prevent the respondents from adopting a different method in measuring out the timber cut down from the estates. All the same, it has to be stated that the statement made by the 1st respondent and its acceptance under Annexure R1 (c) judgment closing the contempt proceedings with direction to adhere to such statement so made, is not an imponderable hurdle in adopting any other suitable method of measurement, which is more feasible, if a request is made for such deviation and for different method of measurement by the 4th respondent. Anneuxre R1 (c) judgment in the contempt proceedings arose at WPC.32841/09 12 the instance of the 4th respondent and if that respondent has no objection in relieving the respondents 1 to 3 from the method fixed and adopting a different method, which is more suitable and feasible, and that too, on its request to facilitate the avoidance of delay in measuring out the cut down timber and its easy transportation from the estates, then, it cannot be stated that acceding to such request and adopting a different method of measurement by these respondents (respondents 1 to 3) would amount to flouting or violating of the statement given and recorded in Annexure R1 (c) judgment. Though the learned counsel for the petitioner, the contractor under the 4th respondent canvassed that on his representation, a different method can be followed and adopted by respondents 1 to 3, we find that respondents 1 to 3 are not bound to act upon the representation of the petitioner nor to consider or act upon such representation from the petitioner as there is no privity of contract between the petitioner and those respondents. Situation will be different if any such representation for adopting a different method is made by the 4th respondent, who has WPC.32841/09 13 engaged the petitioner as its contractor for removal of the cut down trees from its estates. Needless to say that, if any representation is moved by the 4th respondent for adopting a different method of measurement than what is undertaken to be followed in the statement of respondents 1 to 3 and so recorded in Annexure R1 (c) judgment directing its compliance, the above respondents shall consider such representation on its merits and also the feasibility for easy transportation of the loads of cut down timber and fire wood from the estates. Since Ext.P4 letter issued by the 3rd respondent has admittedly ceased to have any more operative value, there is no need for passing any writ/order/direction quashing it in the writ petition. The other reliefs canvassed in the writ petition as against respondents 1 to 3 by the petitioner contractor of the 4th respondent cannot be granted at the instance of the petitioner the contractor of the 4th respondent with whom respondents 1 to 3 have no privity of contract or statutory obligations to be performed. As already indicated, only the 4th respondent WPC.32841/09 14 company can seek modification of a different method for measurement of the cut down timber than what is covered by Annexure R1 (c) judgment. Writ petition is disposed as indicated above. P.R.RAMAN, JUDGE S.S.SATHEESACHANDRAN, JUDGE prp