1999 PLP 1123 (MLD)

(6) Whether the order of recovery of Rs.1,91,715.81 against the plaintiff are illegal, ultra vires and in effective against him? OPP. (7) Relief.

3. The plaintiff produced Mahmood Khan as P. W.1, Muhammad Basharat as P.W.2 and himself appeared as P.W.2, it should be read as P.W.3. The respondent examined Muhammad Akram, D.F.O. as D.W.1. The trial Court after hearing the arguments dismissed the suit of the appellant vide judgment and decree dated 14-5-1980. The plaintiff filed an appeal in the Court of District Judge, Rawalpindi, which came up on the file of the Additional District Judge, Rawalpindi. The appeal was partially accepted vide judgment and decree dated 9-6-1981. The result was that the penalty was reduced from eleven times to five times. In this background, both the parties have challenged the judgment and decree of the learned Additional District Judge through separate R. S. As.

4. It is argued that Issue No.2 was not correctly decided because it was not proved that the amount is recoverable as arrears of land revenue as it was not established dues. In this behalf reliance is placed on the judgments reported as Abdul Latif v. The Government of West Pakistan and others (PLD 1962 SC 384) and Muhammad Akbar Cheema v. The Province of West Pakistan and another (1984 SCMR 1047). It is argued that neither theft was proved nor the amount was determined in accordance with law, therefore, the suit was liable to be decreed.

5. On the other hand, Raja Saeed Akram, learned A.-A.G pointed out that the appellant pleaded that penalty of 10 times could not be imposed in view of the provisions of section 74 of the Contract Act. It is argued that the penalty having been imposed strictly in accordance with the terms and conditions of agreement between the parties, therefore, legal. In this behalf he referred to the case reported as Syed Sibte Raza and another v. Habib Bank Ltd. (PLD 1971 SC 743).

6. I have given my anxious consideration to the arguments and gone through the record. It is relevant to refer to para.8 of the plaint before proceeding any further. The same reads as under:- "That the Conservator of Forests without issuing any show cause notice to the plaintiff, illegally acting under a penalty clause in the agreement levied a penalty amounting to Rs.1,91,715.81. Under section 74 of the Contract Act, a stipulation by way of penalty cannot be legally enforced or except to the extent which would be within the limits of justice and reasonableness. Imposition of penalty calculated at the rate of 11 times the sale price of the timber is neither reasonable nor just. Moreover to condemn a person unheard is the negation of the most elementary principle of natural justice and renders the action taken to be absolutely null and void and of no legal consequence whatsoever specially when it is tainted with mala fides. " This suit was filed on 14-5-1972 and in para. 11 relating to cause of action it was pleaded that the cause of action accrued at Rawalpindi two days ago whe4 the defendant officials refused to accept the plaintiff's contention and is continuing. The learned counsel for the appellant, when asked from where the amount was quoted in the plaint, has produced a notice, dated 22nd February, 1972, which has been placed on record as Exh. C/1 in which the price of 18 chil green trees alongwith 10 times penalty was worked out. It is clear that at this stage the defendant did not press for payment of the amount. The petitioner represented against this and a Committee was formed to look into the allegations. The Committee confirmed the report of D.F.O. Muhammad Akram D.W.1 and it was thereafter that the department decided to enforce the recovery but before the notice could be served, the appellant pre- empted the move and proceeded to file the present suit. This fact is fully proved by notice, dated 11th of May, 1972, which was sent through registered post acknowledgement due, to the appellant. This way if the law is strictly applied then no cause of action had accrued in favour of the appellant on 14-5-1972 when the suit was filed.

7. Now coming to the argument that the amount was not established, therefore, the Government could not recover the same as arrears of land revenue. The allegations as per Muhammad Akram D.W.1 were that on verification he discovered that the appellant had cut 18 trees illegally. The same was equal to 2613 cft. The petitioner was charged @ 6.67 per cft, the same rate which was quoted by him in his tender. The price of the timber was Rs.17,428.71 and this was multiplied by 10 times of the sale value for the timber illegally felled to work out penalty as per clause (17) too. The amount was clearly worked out and intimated through the letter dated 22-2-1972. This was not end of the matter. On representation of the petitioner, Inquiry Committee was constituted, who also held him guilty. Thereafter, before the appellant could be informed of the amount he was liable to pay for this illegal act, he proceeded to file the suit.

8. The learned A.A.-G rightly argued that this concurrent finding of fact as to illegally felling 18 pine green trees by the appellant with the object to illegally take them alongwith the timber legally cut. This was proved by the fact that he placed forged marks (seal) of the Forest Department on the disputed trunks of the trees. The amount has been clearly worked out in the document Exh.C/1, therefore, there is no merit in the argument that the dues were not established.

9. The next legal question is whether the respondent was justified to impose the penalty of 10 times of price of the 18 trees illegally felled. It may be clarified here that the penalty was not 11 times but the total price was 10 times penalty plus the price. The learned Additional District Judge has reduced the penalty to 5 times. Before proceeding any further it is relevant to refer to clause (17) of the agreement between the parties. The same reads as under:-- "17 (a) In the even of the purchaser, his agent or his labour accidentally, negligently or deliberately felling a tree to which he is not entitled under the terms of this agreement, the purchaser shall be liable to pay: - (i) in the case of a tree 12" of above in diameter, the price of the tree calculated in accordance with the sale price plus a penalty not exceeding ten times the price of the tree; and (ii) in the case of a tree under 12" in diameter the price of the tree calculated in accordance with the sale rate plus a penalty not exceeding Rs.200 per tree. Such trees shall become the property of the purchaser after the payment has been made by him. (b) The purchaser shall accept as correct the measurements made by the Forest Officer or any official authorised by him in this behalf, with regard to the aforesaid trees and the calculated volume thereof. The argument is that the appellant has not removed the timber of the trees in dispute, therefore, was not liable to pay the price. It is clear from the above clause that formula has been prescribed for illegally, negligently and accidently felling the trees not forming part of the contract, therefore, the question whether or not the appellant has removed the trees or timber, was of no legal consequence.

10. In this view of the matter there is no merit in this appeal.

11. Now I take up the appeal of the defendant. The learned Additional District Judge has proceeded to reduce the penalty from 10 times to 5 times. The justification was that full amount of the penalty as provided in the agreement has been imposed. The same was reduced keeping in view the amount of timber illegally felled. There was absolutely no legal justification to reduce the penalty. The learned first appellate Court failed to take in consideration. The erosion of positive values in social set up loss of moral direction, development of culture of corruption and general tendency to francy to fraudulently take over the public property and funds. The exchequer was deprived of its due share. The time has come when all such illegal acts have to be stopped with strong hands. There was no justification for reducing the penalty.

12. The Civil Court did not enjoy any powers of the Forest Officer under the Forest Act, therefore, it has no jurisdiction to sit in appeal to the orders passed by the departmental authorities so long the same were within the four corners of the Statute. In this behalf reference can be made to the case reported as The Tariq Transport Company Lahore v. The Sargodha-Bhera Bus Service Sargodha (PLD 1958 SC (Pak.) 437) and Pakistan Transport Co. Ltd. Jhang v. Shorkot Transport Co. (Regd.) Shorkot (PLD 1961 (W.P.) Lahore 326). The Honourable Supreme Court in the first case dismissed the writ issued by the High Court by accepting the appeal. There was no justification legal or otherwise to substitute the amount of penalty m the order of the Forest Authorities after upholding the action of the departmental authority.

13. The suit was also liable to be dismissed for another reason that the appellant has not approached the Court with clean hands. It is clear from clause (17) reproduced above that the penalty could be imposed in the event of the purchaser, his agent or his labour accidently, negligently or deliberately felling a tree which he was not entitled under the terms of the agreement. In the present case, the allegations were that 18 trees were felled deliberately and to prove this fact reference was made to the forged marks of the Forest Department placed on the trunks of illegally cut trees. This way the appellant had committed fraud, therefore, he was not entitled to any relief in the suit for declaration. 14 The upshot of this discussion is that Appeal No. 94 of 1982 of the plaintiff is dismissed while Appeal No.95/82 filed by the Province of Punjab is accepted with costs throughout. The result is that the suit of the plaintiff is dismissed. A.A./M-802/L Order accordingly.