Case: Haridwar Singh Vs. Bagun Sumbrui And Ors

1. The appellant filed a writ petition before the High Court of Patna praying for quashing an order passed by the Minister of Forest, Government of Bihar, on December 13, 1970, and for issue of a writ in the nature of mandamus directing the Respondents 1 to 5 to give effect to the previous order of the Minister of Forest, dated November 27, 1970. The writ petition was heard by a Division Bench of the Court and the petition was dismissed. This appeal, by special leave, is from that judgment2. There is a bamboo coup known as "Bantha Bamboo coup" in Chatra North Division of Hazaribagh district. On July 22, 1970, the Forest Department of the Government of Bihar advertised for settlement of the right to exploit the coup by public auction. The auction was held in the office of the Divisional Forest Officer on August 7, 1970. Five persons including the appellant participated in the auction. Though the reserve price fixed in the tender notice was Rs. 95, 000/-, the appellants bid of Rs. 92, 001/-, being the highest, was accepted by the Divisional Forest Officer. The petitioner thereafter deposited the security amount of Rs. 23, 800/- and executed an agreement. The Divisional Forest Officer reported about the auction sale to the Conservator of Forests, Hazaribagh Circle, by his letter, dated August 25, 1970. As the price for which the coup was provisionally settled exceeded Rs. 50, 000/-, the Conservator of Forests forwarded the papers regarding the auction sale to the Deputy Secretary to Government of Bihar, Forest Department, for confirmation of the acceptance by the Government. Since the provisional settlement was made for an amount less than the reserve price, the matter was also referred to the Finance Department. The Finance Department invited comments from the Divisional Forest Officer as to why the settlement was for a lesser amount. The Divisional Forest Officer, by his letter, dated October 30, 1970, submitted his explanation for the provisional settlement at an amount below the reserve price. When the matter was pending before the Government, the appellant expressed his willingness to take the settlement at the reserve price of Rs. 95, 000/-, by his communication, dated October 26, 1970. The appellant thereafter filed an application on November 3, 1970, praying for settlement of the coup on the basis of the highest bid. The Minister of Forest, by his proceedings, dated November 27, 1970, directed that the coup may be settled with the highest bidder, namely the appellant, at the reserve price. A telegram was sent by the Government to the Conservator of Forests, Hazaribagh Circle on November 28, 1970, with a copy of the same to the Conservator of Forest, Bihar, confirming the auction sale to the appellant at the reserve price of Rs. 95, 000/-. As no intimation was received by the Divisional Forest Officer, he did not communicate the proceedings of the Minister to the appellant. One Md. Yakub, respondent No. 6, filed a petition on December 4, 1970, before the Government of Bihar, respondent No. 1, offering to take the settlement of the coup in question for Rs. 1, 01, 125/-. A telegram was sent by the Government on December 5, 1970, to the Divisional Fores Officer, directing him not to take any auction on the basis of the telegram, dated November 28, 1970, sent to him in pursuance of the proceedings of the Government, dated November 27, 1970. The telegram was received by the Divisional Forest Officer on December 10, 1970, and the Divisional Forest Officer, by his letter, dated December 10, 1970, informed the Government that the previous telegram, dated November 28, 1970, was not received by him and so its content was not communicated to the appellant. The whole matter was thereafter placed before the Minister of Forest and the Minister, by his proceedings, dated December 13, 1970, cancelled the settlement of the coup with the appellant and settled the same with respondent No. 6 for Rs. 1, 01, 125/-. The Government thereafter sent telegrams on December 21, 1970, to the Conservator of Forests and the Divisional Forest Officer, informing them that the coup had been settled with respondent No. 6. The Divisional Forest Officer, by his letter, dated December 23, 1970, directed respondent No. 6 to deposit the security amount and to pay the first instalment. Respondent No. 6 deposited the same and executed an agreement5. The special conditions in the tender notice makes it clear that the Divisional Forest Officer has the right to accept a bid of less than Rs. 5, 000/-, that acceptance of a bid of more than Rs. 5, 000/- by him is subject to confirmation by the Chief Conservator of Forests and the Forest Department of the Bihar Government, that an auction sale for an amount of more than Rs. 5, 000/- would not be recognised until it is confirmed by the competent authority, and that a bid made in auction and which has been provisionally accepted by the Divisional Forest Officer shall be binding on the bidder for two months from the date of auction or till the date of rejection by the competent authority, whichever is earlier10. Before the High Court the contentions of the 6th Respondent were, firstly, that the Rule 10(1) is not a statutory rule and, secondly, that it did not concern lease of forest land. The High Court, without deciding the question whether the rule is a statutory rule, held that the rule has nothing to do with the lease of forest coups and said that there was nothing which prevented the Government from giving the coup on lease by private treaty. The High Court, therefore, held that there was no bar, statutory or otherwise, to the settlement of the coup in favour of respondent No. 6 by private negotiation and as such the settlement in his favour was valid.

Reasoning:
It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970, to grant the lease. But counsel for the Government of Bihar and 6th Respondent contended that Rule 10(1), in so far as it requires prior consultation with the Finance Department, is only directory in character and, therefore, even if there was no prior consultation, the settlement was valid. So, the question arises whether Rule 10(1) which requires prior consultation with the Finance Department is mandatory or not13. Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory (see Earl T. Crawford, The Construction of Statutes, pp. 523-4)14. Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed (see Dattatreya Moreshwar Pangarkar v. The State of Bombay and Others. (1952 SCR 612     at 624 : AIR 1952 SC 181   : 1952 Cri LJ 955))15. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (see Maxwell, Interpretation of Statutes, 6th edition, pp. 649-650)16. In this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which concerns the revenue of the State and also the rights of individuals. The negative or prohibitive language of Rule 10(1) is a strong indication of the intent to make the rule mandatory. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation, does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential pre-requisite to the exercise of the power