{"id":202270,"date":"1972-02-25T00:00:00","date_gmt":"1972-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/haridwar-singh-vs-bagun-sumbrui-and-ors-on-25-february-1972"},"modified":"2017-07-16T00:41:39","modified_gmt":"2017-07-15T19:11:39","slug":"haridwar-singh-vs-bagun-sumbrui-and-ors-on-25-february-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/haridwar-singh-vs-bagun-sumbrui-and-ors-on-25-february-1972","title":{"rendered":"Haridwar Singh vs Bagun Sumbrui And Ors on 25 February, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Haridwar Singh vs Bagun Sumbrui And Ors on 25 February, 1972<\/div>\n
Equivalent citations: 1972 AIR 1242, \t\t 1972 SCR (3) 629<\/div>\n
Author: K K Mathew<\/div>\n
Bench: Mathew, Kuttyil Kurien<\/div>\n
           PETITIONER:\nHARIDWAR SINGH\n\n\tVs.\n\nRESPONDENT:\nBAGUN SUMBRUI AND ORS.\n\nDATE OF JUDGMENT25\/02\/1972\n\nBENCH:\nMATHEW, KUTTYIL KURIEN\nBENCH:\nMATHEW, KUTTYIL KURIEN\nHEGDE, K.S.\n\nCITATION:\n 1972 AIR 1242\t\t  1972 SCR  (3) 629\n CITATOR INFO :\n R\t    1976 SC 263\t (13)\n\n\nACT:\nContracts--Acceptance  of auction bid by  Divisional  Forest\nOfficer\t subject  to  confirmation by  Government  does\t not\nresult in concluded contracts in the absence of confirmation\nby   Government--Rules\tof  Executive  Business\t  of   Bihar\nGoverment made under Art. 166(3) of Constitution--Rule 10(1)\nas  relaxed  does  not\tprohibit  grant\t of  lease   private\ntreaty--Rule   10(1)  in  so  far  as  it   requires   prior\nconsultation with Finance Department is mandatory.\n\n\n\nHEADNOTE:\nThe  right  to\texploit\t a bamboo  coup\t in  the  Hazaribagh\ndistrict of Bihar was auctioned in August 1970.\t The reserve\nprice was Rs. 95,000\/but the appellant's bid of Rs. 92,001\/-\nbeing  the  highest was accepted by  the  Divisional  Forest\nOfficer.  The petitioner deposited the security required and\nexecuted an agreement.\tThe Divisional Forest Officer  about\nthe  auction sale to the Conservator of Forests,  Hazaribagh\nCircle-.  As the price for which the coup was  provisionally\nsettled\t exceeded  Rs. 50,0001- the Conservator\t of  Forests\nforwarded  the\tpapers\tregarding the auction  sale  to\t the\nDeputy\t Secretary  to\tthe  Government\t of  Bihar,   Forest\nDepartment  for\t confirmation of the acceptance, by  the  Go\nSince  provisional  settlement was made for an\tamount\tless\nthan  the reserve price the matter was also referred to\t the\nFinance\t Department.   When  the  matter  was  pending\t the\nappellant  expressed his willingness to take the  settlement\nat  the reserve price of Rs., 95,000\/- by his  communication\ndated October 26, 1970.\t The appellant thereafter filed\t an\napplication  on November 3, 1970 praying for  settlement  of\nthe  coup on the basis of the highest bid.  The Minister  of\nForest\tby his proceedings dated November 27, 1970  directed\nthat  the coup may be settled with the highest bidder  viz..\nthe appellant at the reserve price.  A telegram was sent  by\nthe  Government\t to the Conservator of\tForests,  Hazaribagh\nCircle\ton  November 28, 1970 with copy of the same  to\t the\nConservator  of Forest, Bihar co  the auction sale at  the\nreserve price of Rs, 95,000\/.  As no intimation was received\nby the Divisional Forest Officer he did not communicate\t the\nproceedings  of the Minister to the appellant.\tOn  December\n24,  respondent\t No. 6 filed a petition\t to  the  Government\noffering to take the settlement of the coup in question\t for\nRs.  101125\/-.\t The  Minister,\t by  his  proceedings  dated\nDecember 13, 1970 cancelled the settlement of the coup\twith\nthe appellant and settled the same with respondent No. 6 for\nRs. 101125\/-.  'The appellant filed a writ petition in\tthe\nhigh  Court contending that there was a\t concluded  contract\nwhen the bid of the appellant was accepted by the Divisional\nForest\tOfficer though that was subject to the\tconfirmation\nby   the  Government  and  when\t the  Government   confirmed\nacceptance  by its proceedings dated number 27, 1970 it\t was\nno  longer  within the Dower of the Government to  make\t the settl\nement  of  the coup upon the 6th respondent.   It  was\nalso contended that the settlement of the coup in favour  of\nthe 6th respondent was invalid because (a) rule 10(1) of the\nRules  of Executive Business made under Art. 166(3) of\tthe-\nConstitution  as  relaxed  by  the  letter  of.\t the  Deputy\nSecretary  to  the Government dated November 27,  1967\tpro-\nhibited\t the  grant of lease by private treaty and  (b)\t the\nrequirement of 12--L1031SupCI\/72\n630\nprior  consultation in r. 10(1) with the Finance  Department\nwas  mandatory\tand had not been complied  with.   The\tHigh\nCourt  rejected the appellant's contentions.  In  appeal  to\nthis Court by special leave.\nHELD  :\t (1)  The acceptance of the  appellant's  offer\t was\nsubject to confirmation by the Government and in the absence\nof such confirmation them could be no concluded contract.\nThe appellant's bid was for Rs;. 92001\/-.  The acceptance of\nthe  bid  by the Divisional Forest  Officer  was  therefore,\nsubject\t to confirmation by the Government.  The  proceeding\nof  the Minister dated November 27, 1970 would show that  he\ndid  not-confirm acceptance of the offer by  the  Divisional\nForest\tOfficer.  What the Minister did was not\t to  confirm\nthe acceptance made by the Division 31 Forest Officer but to\naccept the offer made by the appellant in his  communication\ndated  October 26, 1970 that he would take the coup for\t the\nreserved  price\t of Rs. 95,000\/.  There was, there  for,  no\nconfirmation  of the acceptance of the bid to take the\tcoup\nin  the settlement for the amount of Rs.  92,001\/-.  [634-G-\n635B]\nIf  the offer that was accepted was the offer  contained  in\nthe  communication of the appellant dated October 26,  1970\nit could not be said that there was any communication of the\nacceptance  of\tthat offer to the appellant.   The  telegram\nsent  to  the  Conservator of  Forest,\tHazaribagh  by-\t the\nGovernment on November 28, 1970 could not be considered as a\ncommunication  of  the\tacceptance  of\tthat  offer  to\t the\nappellant.   The acceptance , of the offer was not even\t put\nin  course  of transmission to the appellant;  and  so\teven\nassuming  that acceptance need not come to the knowledge  of\nthe offer or, the appellant could not contend that there was\na concluded contract on the basis of his offer contained  in\nhis communication dated October 26, 1970, as the  acceptance\nof  that  offer was not put in the course  of  transmission.\nApart from that the appellant himself revoked the offer made\nby  him on October 26, 1970 by his letter dated November  3,\n1970  in which he stated. that the coup may be settled\tupon\nhim  at the highest bid made by him in, the auction.   There\nwas,  thus no concluded contract between the  appellant\t and\nthe government. [635B-D]\nThe  Rajanagaram Village Cooperative Society, v.  Veeraswami\nMudaly, [1950] 11 M.L.J. 486, distinguished.\nSomasundaram  Pillai  v. Provincial  Government\t of  Madras,\nA.I.R. 1947 Madras, 366, applied.\n(ii)Rule  10(1) in so far as it was relevant to the  present\ncase  only  says  that no  department  shall  without  prior\nconsultation  with the Finance Department authorise  by\t any\norder the lease of license of mineral or forests.  The\trule\nread  in the context of its relaxation as mentioned  in\t the\nletter\tof  the\t Deputy\t Secretary  would  only\t show\tthat\nconsultation  with the Finance Department is  not  necessary\nfor  a lease if lease is of land of the value of  more\tthan\nRs. 50,0001- and 'is granted in pursuance of public  auction\nheld  in  conformity with the conditions  mentioned  in\t the\nletter\tof the Deputy Secretary.  The rule where  before  or\nafter  relaxation  did not prohibit the grant  of  leave  by\nprivate treaty. [637C]\n(iii)It\t was clear from records relating to the\t proceedings\nfor  the grant of the lease in favour of the 6th  respondent\nthat  the  Finance Department was not consulted\t before\t the\nMinister  passed  the order on December 13, 1970.  to  grant\nlease.\tIt could not be said that rule 10(1) in so far Is it\nrequires  prior consultation with the Finance Department  is\nonly  drirectory and therefore even if there was  no,  prior\nconsultation the settlement\n631\nwas  valid.   The negative or prohibitive language  of\trule\n10(1) is a strong indication of the intent to make the\trule\nmandatory.   Further  rule 10(2) makes it clear\t that  where\nprior  consultation with the Finance Department is  required\nfor a proposal and the department on consultation, does\t not\nagree  to  the\tproposal,  the\tdepartment  originating\t the\nproposal  can take no further action on the  proposal.\t The\nCabinet alone would be competent to take a decision.   Prick\nconsultation is, therefore, an essential prerequisite to the\nexercise  of  power.  The, order passed by the\tMinister  of\nForest,\t Government of Bihar on December 13,  1970  settling\nthe coup in favour of the 6th respondent was, therefore\t bad\nand the order must be quashed. [637EF; 638D-F]\nDattatreya  Moreshwar Pangerkar v. The State of\t Bombay\t and\nOthers.<\/a> [1952] 2 S.C.R. 612 applied.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1807 of 1971.
\nAppeal\tby special leave from the judgment and\torder  dated
\nMay  6, 1971 of the, Patna High Court in C.W.J.C. No. 41  of
\n197 1.\n<\/p>\n
L.  M.\tSinghvi,  S.  C. Dingra and U.\tP.  Singh,  for\t the
\nappellant.\n<\/p>\n
S. V. Gupte and B. P. Singh, for respondents Nos.  1 to 5.
\nS. N. Prasad and D. N. Mishra, for respondent No. 6.
\nThe Judgment of the Court was delivered by
\nMathew,\t J. The appellant filed a writ petition\t before\t the
\nHigh Court of Patna_praying for quashing an order passed  by
\nthe Minister of Forest, Government of Bihar, on December 13,
\n1970,  and  for issue of a writ in the\tnature\tof  mandamus
\ndirecting  the\trespondents  1 to 5 to give  effect  to\t the
\nprevious order of the Minister of Forest dated November\t 27,
\n1970.\tThe writ petition was heard by a Division  Bench  of
\nthe  Court and the petition was dismissed.  This appeal,  by
\nspecial leave, is from that judgment.\n<\/p>\n
There is a bamboo coup know as “Bantha Bamboo coup in Chatra
\nNorth  Division of Hazaribagh district.\t On July  22,  1970,
\nthe Forest Department of the Government of Bihar  advertised
\nfor  settlement of the right to exploit the COUP  by  Public
\nauction’  The  auction\twas  held  in  the  Office,  of\t the
\nDivisional  Forest Officer on August 7, 1970.  Five  persons
\nincluding the appellant participated in the auction.  Though
\nthe  reserve  price  fixed  in the  tender  notice  was\t Rs.
\n95,000\/-,  the\tappellant’s bid of Rs. 92,001\/-,  being\t the
\nhighest, was accepted by the Divisional Forest Officer.\t The
\npetitioner thereafter deposited the security amount of\tRs.
\n23,800\/-  and executed an agreement.  The Divisional  Forest
\nofficer\t reported about the auction We servator of  Forests,
\nHazaribagh Circle, by his letter dated August 25, 1970.\t  As
\nthe price for which the coup was provisionally,
\n632<\/span>
\nsettled\t exceeded Rs. 50,0001-, the Conservator\t of  Forests
\nforwarded  the\tpapers\tregarding the auction  sale  to\t the
\nDeputy Secretary to Government of Bihar, Forest\t Department,
\nfor coation of the acceptance by the Government.  Since\t the
\nprovisional settlement was made for an amount less than\t the
\nreserve\t price, the matter was also referred to the  Finance
\nDepartment.   The Finance Department invited  comments\tfrom
\nthe  Divisional Forest Officer as to why the settlement\t was
\nmade for a lesser amount.  The Divisional Forest Officer, by
\nhis   letter  dated  October  30,  1  970.   submitted\t his
\nexplanation  for  the provisional settlement  at  an  amount
\nbelow the reserve price.  When the matter was pending before
\nthe  Government, the appellant expressed his willingness  to
\ntake  the settlement at the-reserve price of Rs.  95,000  by
\nhis  communication  dated October 26, 1970.   The  appellant
\nthereafter filed an application on November 3, 1970, praying
\nfor settlement of the coup on the basis of the highest\tbid.
\nThe  Minister of Forest, by his proceedings  dated  November
\n27,  1970,  directed that the coup may be settled  with\t the
\nhighest bidder. namely the appellant, at the reserve. price.
\nA telegram was sent by the Government to the Conservator  of
\nForests, Hazaribagh Circle on November 28, 1970, with a copy
\nof the same to the Conservator of Forest, Bihar,  confirming
\nthe  auction sale to the appellant at the reserve  price  of
\nRs.  95,000\/-.\t As  no\t intimation  was  received  by\t the
\nDivisional  Forest  Officer,  he did  not  cormmunicate\t the
\nproceedings  of\t the  Minister to the  appellant.   One\t Md.
\nYakub,\tRespondent  No. 6, filed a petition on\tDecember  4.
\n1970,  before  the Government of Bihar,\t Respondent  No.  1.
\noffering to take the settlement of the coup in question for
\nRs.  1,01,125\/-.  A telegram was sent by the  Government  on
\nDecember   5,  1970,  to  the  Divisional  Forest   Officer,
\ndirecting  him\tnot to take any action on the basis  of\t the
\ntelegram  dated November 28, 1970, sent to him in  pursuance
\nof  the\t proceedings of the Government\tdated  November\t 27,
\n1970.\tThat telegram was received by the Divisional  Forest
\nOfficer\t on  December 10, 1970. and  the  Divisional  Forest
\nOfficer, by his letter dated December 10. 1970, informed the
\nGovernment  that  the previous telegram dated  November\t 28,
\n1970,  was  not received by him and so it  content  was\t not
\ncommunicated to the appellant.\tThe whole matter was  there-
\nafter placed before the Minister of Forest and the Minister,
\nby  his proceedings dated December 13, 1970,  cancelled\t the
\nsettlement  of the coup with appellant and settled the\tsame
\nwith  Respondent No. 6 for.Rs. 1,01,125\/-.   The  Government
\nthereafter  sent  telegrams on December 21,  1970,  \/to\t the
\nConservator  of\t Forests and the Divisional  Forest  Officer
\ninforming   them  that\tthe  coup  had\tbeen  settled\twith
\nRespondent  No.\t 6. The Divisional Forest  Officer.  by\t his
\nletter\tdated December- 23, 1970, directed Respondent No.  6
\nto  deposit  the  security  amount  and\t to  pay  the  first
\ninstalment.   Respondent  No.  6  deposited  the  same\t and
\nexecuted an agreement.\n<\/p>\n
633<\/span><\/p>\n
The  contention\t of the appellant in the writ  petition\t was
\nthat  there  was a concluded contract when the\tbid  of\t the
\nappellant  was\taccepted by the\t Divisional  Forest  Officer
\nthough\tthat was subject to confirmation by  the  Government
\nand  that, when the Government confirmed the  acceptance  by
\nits  proceedings, dated November 27, 1970, it was no  longer
\nwithin the power of Government to make the settlement of the
\ncoup  upon  the\t 6th Respondent\t by  its  proceedings  dated
\nDecember 13, 1970.  It was also contended in the alternative
\nthat  the  settlement  of the coup in  favour  of.  the\t 6th
\nRespondent   was  in  violation\t of  statutory\trules\tand,
\ntherefore, in any event, that settlement was invalid.
\nAs already indicated, the High Court negatived these conten-
\ntions and upheld the validity of the settlement in favour of
\nthe 6th Respondent.\n<\/p>\n
The  special conditions in the tender notice makes it  clear
\nthat the Divisional Forest Officer has the right to,  accept
\na bid of less than Rs. 5,0001-, that acceptance of a bid  of
\nmore than Rs. 5,0001- by him is subject to confirmation\t by-
\nthe  Chief Conservator of Forests and the Forest  Department
\nof  the Bihar Goverment, that an auction sale for an  amount
\nof more than Rs. 5,0001- would not be recognised until it is
\nconfirmed by the competent authority, and that a bid made in
\nauction\t and  which has been provisionally accepted  by\t the
\nDivisional Forest Officer shall be binding on the bidder for
\ntwo  months  from the date of auction or till  the  date  of
\nrejection by the competent authority, whichever is earlier.
\nCounsel for the appellant contended that there was a  condi-
\ntional\tacceptance  of\tthe offer of the  appellant  by\t the
\nDivisional  Forest  Officer,  that on  confirmation  by\t the
\nGovernment,   that  acceptance\tbecame\tunconditional\tand,
\ntherefore,   there  was\t a  concluded  contract\t  when\t the
\nGovernment   confirmed\tthe  acceptance,  even\tthough\t the
\nconfirmation  was  not communicated to\tthe  appellant.\t  In
\nsupport\t of  this,  he relied  on  The\tRajanagaram  Village
\nCooperative  Society v. Veerasami Mudaly(1).  There  it\t was
\nheld  that  in the case of a conditional acceptance  in\t the
\npresence of a bidder, the condition being that it is subject
\nto  approval  or  confirmation by  some\t other\tperson,\t the
\nacceptance,  though conditional, has to be communicated\t and
\nwhen  that  is\tcommunicated, there is no  further  need  to
\ncommunicate  the  approval  or\tconfirmation  which  is\t the
\nfulfillment  of the condition.\tIt was further held  that  a
\nconditional acceptance has the effect of binding the highest
\nbidder\tto the contract if there is subsequent\tapproval  or
\nconfirmation by the person indicated, that he cannot  resile
\nfrom  the  contract or withdraw the offer, and if  there  is
\napproval. or confirma-\n<\/p>\n
(1) [1950] 11 M.L.J.486.\n<\/p>\n
634<\/span><\/p>\n
tion, the contract becomes concluded and enforceable.\tThis
\ndecision was considered in Somasudaram Pillai v.  provincial
\nGovernment of Madras(1) where Chief Justice Leach,  speaking
\nfor  the Court said that, to have an  enforceable  contract,
\nthere  must be an offer and an unconditional acceptance\t and
\nthat  a person who makes an offer has the right to  withdraw
\nit  before acceptance, in the absence of a condition to\t the
\ncontrary  supported by consideration.  He further  said\t the
\nfact  that  there  has been  a\tprovisional  or\t conditional
\nacceptance would not make any difference as a provisional or
\nconditional  acceptance\t cannot\t in itself  make  a  binding
\ncontract.\n<\/p>\n
The  question whether by an acceptance which is\t conditional
\nupon  the  occurrence  of a future ‘event  a  contract\twill
\nbecome\tconcluded  was considered by Williston and  this  is
\nwhat he says : (-)
\n\t      ” A nice distinction may be taken here between
\n\t      (1)  a  so-called\t acceptance  by\t which\t the
\n\t      acceptor agrees to become immediately bound on
\n\t      a condition not named in the offer, and (2) an
\n\t      acceptance  which\t adopts\t unequivocally\t the
\n\t      terms of the offer but states that it will not
\n\t      be  effective  until  a  certain\t contingency
\n\t      happens or fails to happen.  In the first case
\n\t      there  is a counteroffer and rejection of\t the
\n\t      original offer; in the second case there is no
\n\t      counter-officer,\tsince there is no assent  to
\n\t      enter into an immediate bargain.\tThere is, so
\n\t      to  speak, an acceptance in escrow,  which  is
\n\t      not  to take effect until the future.  In\t the
\n\t      meantime,\t of course, neither party  is  bound
\n\t\t\t    and either may withdraw’ More over, if
\n the time
\n\t      at   which  the  acceptance  was\t to   become
\n\t      effectual\t is unreasonably remote,  the  offer
\n\t      may   lapse  before  the\tacceptance   becomes
\n\t      effective.  But if neither party withdraws and
\n\t      the, delay is not unreasonable a contract will
\n\t      arise  when  the contingency happens  or\tsti-
\n\t      pulated event occurs”\n<\/p>\n
In  this  case, it is not the want of communication  of\t the
\nconfirmation by the Government to the appellant that  really
\nstands\tin the way of there being a concluded contract,\t but
\nrather\tthe  want of confirmation by the Government  of\t the
\nconditional  acceptance\t by the Divisional  Forest  Officer.
\nThe  appellant’s bid was for Rs. 92,001\/-.  The,  acceptance
\nof the bid by the Divisional Forest Officer was,  therefore,
\nsubject\t to confirmation by Goverment.\tThe proceedings.  of
\nthe Minister dated November 27, 1970, would show that he did
\nnot confirm the acceptance of the
\n(1)  A.I.R. 1947,34 Madras, 366.\n<\/p>\n
(2)  Williston On Contracts, Vol. I, 3rd Ed.  Section 77A,
\n635<\/span>
\noffer  by the Divisional Forest Officer.  What the  Minister
\ndid was not to confirm the acceptance made by the Divisional
\nForest\tOfficer,  but  to  accept  the\toffer  made  by\t the
\nappellant in his communication dated October 26, 1970,\tthat
\nhe  would  take\t the  coup for the  reserved  price  of\t Rs.
\n95,000\/-.   There  was, therefore, no  confirmation  of\t the
\nacceptance of the bid to take the coup in settlement for the
\namount of Rs. 92,001\/-.\t If the offer that was accepted\t was
\nthe  offer contained in the communication of  the  appellant
\ndated  October 26, 1970, we do not think that there was\t any
\ncommunication of the acceptance of that offer to the  appel-
\nlant.\tThe  telegram  sent to the  Conservator\t of  Forest,
\nHazaribagh,  by the Government on November 28, 1970,  cannot
\nbe  considered as a communication of the acceptance of\tthat
\noffer to the appellant.\t The acceptance of the offer was not
\neven put in the course of transmission to the appellant; and
\nso  even  assuming that an acceptance need not come  to\t the
\nknowledge  of the offeror the appellant cannot contend\tthat
\nthere  was  a concluded contract on the basis of  his  offer
\ncontained  in his communication dated October 26,  1970,  as
\nthe  acceptance of that offer was not put in the  course  of
\ntransmission.  Quite apart from that, the appellant himself
\nrevoked\t the offer made by him on October 26, 1970,  by\t his
\nletter\tdated November 3, 1970, in which he stated that\t the
\ncoup may be settled upon him at the highest bid made by\t him
\nin  the\t auction.  We are, therefore, of  the  opinion\tthat
\nthere  was no concluded contract between the  appellant\t and
\nthe Government.\n<\/p>\n
This  takes  us to the question whether\t the  settlement  in
\nfavour\tof  the\t 6th  Respondent was  in  violation  of\t any
\nstatutory  rule.   The appellant’s contention was  that\t the
\nsettlement  in\tfavour of the 6th Respondent  by  a  private
\ntreaty was in violation of the, rules of executive  business
\nmade under Article 166(3).  Rule 10 of the Rules provides :\n<\/p>\n
\t      “10(1)  No department shall, without  previous
\n\t      consultation  with  the  Finance\t Department,
\n\t\t\t    authorise\tany  orders  (other   than
\n   orders
\n\t      pursuant to any general or special  delegation
\n\t      made by the Finance Department) which\n<\/p><\/blockquote>\n
\t      (a)    either   immediately   or\t by    their
\n\t      repercussion, will affect the finances of\t the
\n\t      State, or which, in particular,\n<\/p><\/blockquote>\n
\t      (i) involve any grant of land or assignment of
\n\t      revenue or concession, grant, lease or licence
\n\t      of  mineral or forests, rights or a  right  to
\n\t      water  power of any easement or  privilege  in
\n\t      respect of such concession.\n<\/p><\/blockquote>\n
\t      **\t***\t  **\t  ***
\n636<\/span>
\n\t      (2),  Where  on a proposal  under\t this  rule,
\n\t      prior consultation with the Finance Department
\n\t      is   required,  but  on  which   the   Finance
\n\t      Department  might not have agreed, no  further
\n\t      action  shall  be taken on any  such  proposal
\n\t      until  the  cabinet takes a decision  to\tthis
\n\t      effect.”\n<\/p><\/blockquote>\n
A  copy\t of  the letter from the  Deputy  Secretary  to\t the
\nGovernment of the Accountant General, Bihar, dated  November
\n22,  1967 would show that some relaxation of Rule  10(1)  of
\nthe  rules  of executive business was made  by\tthe  Finance
\nDepartment  relating,  to lease of forest  Coups  or  forest
\nproduce of the value of more than Rs. 50,0001-.\t That letter
\nreads as under :\n<\/p>\n
\t      “Subject\t: Revision of procedure\t in  issuing
\n\t      any  order involving any grant of lease,\tsale
\n\t      or  licence  of minerals of forest  rights  if
\n\t      such  order  is issued by\t the  Administrative
\n\t      Department at the, Secretariat level.
\n\t      “Sir,
\n\t      I\t am  directed to say that in  relaxation  of
\n\t      rule  10 of the Rules of\tExecutive  Business,
\n\t      Government  have been pleased to\tdecide\tthat
\n\t      the  Forest Department shall authorise  orders
\n\t      sanctioning leases of Forest coups or  produce
\n\t      of the value of more than Rs. 50,0001- (rupees
\n\t      fifty thousand) each, subject to the following
\n\t      conditions that –\n<\/p><\/blockquote>\n
\t      (1)  Reserve price of the coup has been  fixed
\n\t      before auction.\n<\/p><\/blockquote>\n
\t      (2) Highest bid should be accepted.
\n\t      (3)  Highest bid should not be less  than\t the
\n\t      reserve price.\n<\/p><\/blockquote>\n
\t      (4)   Any\t relaxation to the above  conditions
\n\t      may not ordinarily be allowed except with\t the
\n\t      prior concurrence of the Finance Department.”\n<\/p><\/blockquote>\n
Before the High Court the contentions of the 6th  Respondent
\nwere,  firstly, that the rule 10(1) is not a statutory\trule
\nand, secondly, that it did not concern lease of forest land.
\nThe  High Court, without deciding the question\twhether\t the
\nrule is a statutory rule, held that the rule has nothing  to
\ndo  with the lease of forest coups and said that  there\t was
\nnothing which prevented the Government from giving the\tcoup
\non lease by private treaty.  The High Court, therefore, held
\nthat  there  was  no  bar statutory  or\t otherwise,  to\t the
\nsettlement of the coup in favour of Respondent
\n637<\/span>
\nNo.  6 by private negotiation and as such the settlement  in
\nhis favour was valid.,
\nCounsel\t for the appellant argued that the High\t Court\twent
\nwrong in its conclusion that rule 10(1) as relaxed, did\t not
\napply to the grant of the lease of the coup in question\t and
\nthat  it really prohibited a lease of forest land except  by
\npublic auction., We are not satisfied that the\tconstruction
\ncontended  for is correct.  Neither rule 10(1) nor the\trule
\nas  relaxed  says  that forest land can be  leased  only  by
\npublic\tauction.  Rule 10(1) in so far as it is relevant  to
\nthe present case only says that no department shall, without
\nprior consultation with the Finance Department, authorise by
\nany order, the lease or licence of mineral or forests.\t The
\nrelaxation  made  to rule 10(1) as evidenced by\t the  letter
\nfrom the Deputy Secretary to the Government is to the effect
\nthat  in  the case of lease of forest land of the  value  of
\nmore  than Rs. 50,000\/-, if made by public auction,  it\t can
\nonly be made subject to the conditions mentioned there.\t  In
\nother  words,  rule 10(1) as relaxed does not  prohibit\t the
\ngrant  of a lease by private treaty.  The rule read  in\t the
\ncontext of its-relaxation as mentioned in the letter of\t the
\nDeputy Secretary would only show that consultation with\t the
\nFinance\t Department  is not necessary for a  lease,  if\t the
\nlease  is of of the value of more than Rs. 50,000\/-  and  is
\ngranted in pursuance of a public auction held in  conformity
\nwith  the conditions mentioned in the letter of\t the  Deputy
\nSecretary.\n<\/p>\n
Now the question is whether the coup in question was settled
\nin  favour  of the, 6th Respondent in accordance  with\tRule
\n10(1).\tIt  is\tclear  from  the  records  relating  to\t the
\nproceedings for the grant of the lease in favour of the\t 6th
\nRespondent  that  the Finance Department was  not  consulted
\nbefore\tthe Minister passed the order on December 13,  1970,
\nto grant the lease.  But counsel for the Government of Bihar
\nand  6th Respondent contended that rule 10(1), in so far  as
\nit requires prior consultation with the Finance\t Department,
\nis only directory in character and therefore, even if  there
\nwas  no prior consultation, the settlement was\tvalid.\t So,
\nthe question arises whether rule 10(1) which requires  prior
\nconsultation  with  the Finance Department is  mandatory  or
\nnot.\n<\/p>\n
Several\t tests\thave been propounded in\t decided  cases\t for
\ndetermining  the question whether a provision in a  statute,
\nor a rule is mandatory or directory.  No universal rule, can
\nbe laid down on this matter.  In each case one must look  to
\nthe  subject  matter  and consider  the\t importance  of\t the
\nprovision disregarded and the relation of that provision  to
\nthe  general object intended to be secured.  Prohibitive  or
\nnegative words can rarely be directory and are indicative of
\nthe  intent that the provision is to be mandatory (see\tEarl
\nT. Crawford.  The Construction of Statues, pp. 523-4).\n<\/p>\n
638<\/span><\/p>\n
Where a prescription relates to performance of a public duty
\nand  to invalidate acts done in neglect of them\t would\twork
\nserious\t general inconvenience or injustice to\tpersons\t who
\nhave  no  control over those entrusted with the\t duty,\tsuch
\nprescription is generally understood as mere instruction for
\nthe  guidance of those upon whom the, duty is  imposed\t(see
\nDattatreya  Moreshwar Pangerkar v. The State of\t Bombay\t and
\nothers<\/a>(1)].\n<\/p>\n
Where,\thowever,  a power or authority is conferred  with  a
\ndirection  that\t certain regulation or\tformality  shall  be
\ncomplied  with,\t it seems neither unjust  nor  incorrect  to
\nexact\ta  rigorous  observance\t of  it\t as   essential\t  to
\nacquisition   of  the  right  or  authority  (see   Maxwell,
\nInterpretation of Statutes, 6th edition, pp. 649650).
\nin  this case, we think that a power has been given  to\t the
\nMinister  in  charge of the Forest Department to do  an\t act
\nwhich concerns the revenue of the State and also the  rights
\nof  individuals. The negative or prohibitive  language\tof
\nrule 10(1) is a strong indication of the intent to make\t the
\nrule  mandatory.   Further, rule 10(2) makes it\t clear\tthat
\nwhere  prior  consultation with the  Finance  Department  is
\nrequired for a proposal, and the department on\tconsultation
\ndoes  not agree to the proposal, the department\t originating
\nthe  proposal  can take no further action on  the  proposal.
\nThe  cabinet  alone would be competent to take\ta  decision.
\nWhen we see that the disagreement of the Finance  Department
\nwith  a\t proposal on consultation, deprives  the  department
\noriginating the proposal of the power to take further action
\non   it,  the  only  conclusion\t possible  is\tthat   prior
\nconsultation  is an essential pre-requisite to the  exercise
\nof the power.  We, therefore, think that the order passed by
\nthe Minister of Forest, Government of Bihar on December\t 13,
\n1970, settling the coup in favour of the 6th Respondent\t was
\nbad and we quash the order.\n<\/p>\n
We  allow  the appeal to the extent indicated  but  make  no
\norder as to costs.\n<\/p>\n
G.C.\t\t\t\t       Appeal allowed.\n(1) [1952] S.C.R. 612 at p. 624.\n639<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Haridwar Singh vs Bagun Sumbrui And Ors on 25 February, 1972 Equivalent citations: 1972 AIR 1242, 1972 SCR (3) 629 Author: K K Mathew Bench: Mathew, Kuttyil Kurien PETITIONER: HARIDWAR SINGH Vs. RESPONDENT: BAGUN SUMBRUI AND ORS. DATE OF JUDGMENT25\/02\/1972 BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN HEGDE, K.S. CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-202270","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHaridwar Singh vs Bagun Sumbrui And Ors on 25 February, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/haridwar-singh-vs-bagun-sumbrui-and-ors-on-25-february-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Haridwar Singh vs Bagun Sumbrui And Ors on 25 February, 1972 - 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