JUDGMENT

JUDGMENT:— Appellant had entered into a contract with the State of Bihar in the year 1968 for a period of three years in the matter of appropriating Tendu Leaves from certain forests of the State of Bihar in the Dumka division stipulating to pay the price in three instalments spread over the three years for which the contract was valid. There is no dispute that the first annual instalment had been paid. Nor is there any dispute that the other two had not been paid. At a point of time when the third one had not become due and in regard to the second there had been default, proceedings under the Bihar Public Demands Recovery Act, 1914, were initiated for recovery of the two instalments on the requisition of the forest officer after adjustment of the security deposit and the price obtained at a re-auction. The appellant challenged the action taken in a proceeding under Article 226 of the Constitution before the Patna High Court. The Patna High Court by the impugned decision, AIR 1973 Pat 98, dismissed the petition and upheld the action. That has led to this appeal by special leave.

2. The main stand taken in support of the appeal before us is that once the contract was rescinded, as would appear from the order dated 18th April, 1969, (Annexure D) and the notice demanding the payment having not been complied with, the claim was actually for damages and not the balance of the sale price. Therefore, Section 82 of the Forest Act, 1927 which authorises recovery of the amount as a public demand was not attracted and at the most the respondents were entitled to institute civil action with reference to the provisions of the Sale of Goods Act, 1930 and the summary procedure adopted was unauthorised and without jurisdiction.

3. Support for this stand is sought by learned counsel from a series of decisions of different High Courts. He has placed before us the view indicated by the Allahabad High Court in Firm Gobardhan Das v. Collector of Mirzapur, AIR 1956 All 721, Dewan Chand v. State of U. P., AIR 1971 All 200, State of U. P.v. Deewan Chand,1973 All LJ 309, Nanak Singh v. State of U.P., 1987 All LJ 183, Bala Datt v. Union of India, AIR 1963 Madh Pra 205, J. A. Dalmet v. State of Mysore, AIR 1965 Mys 109 and in 1981 Pun LJ 14. There are cases where reliance has been placed on authorities dealing with recovery of damages on the assumption that the situation is covered by the Sale of Goods Act, 1930. We find that there is reference in the Allahabad decision, AIR 1980 All 100, to the provision of Section 83 of the Forest Act but though the provision has been quoted full implication of it has not been brought out.

4. As a result thereof the legislative purpose in providing Section 83 in the Forest Act has really been overlooked.

5. The two Sections in the Forest Act, 1927 may now be extracted:

"Section 82:

"All money payable to the Government under this Act, or under any rule made under this Act, or on account of the price of any forest-produce, or of expenses incurred in the execution of this Act in respect of such produce, may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land-revenue.

83.(1) When any such money is payable for or in respect of any forest-Produce, the amount thereof shall be deemed to be a first charge on such produce, and such produce may be taken possession of by a Forest-Officer until such amount has been paid.

(2) If such amount is not paid when due, the Forest-Officer may sell such produce by public auction, and the proceeds of the sale shall be applied first in discharging such amount.

(3) The surplus, if any, if not claimed within two months from the date of the sale by the person entitled thereto, shall be forfeited to Government."

6. Section 83 in clear terms makes the liability of Government the first charge on the forest produce sold. Sub-section (2) authorises the Forest-officer to sell the produce by public auction and the proceeds of such sale to be app