' This is a 'petition under Article 98 of the abrogated Constitution of Islamic Republic of Pakistan, praying for issue of an appropriate writ or direction to declare order dated 8-6-1968 passed by the Chief Conservator of Forests, Lahore Region, Lahore, imposing penalty of a sum of Rs.30,195.80, as illegal and of no legal consequence. In order to properly appreciate and reach the controversy giving rise to the present petition, it may be necessary to narrate the facts in some detail. Sale of Kiker and Sheesham trees numbering 655 in all (53549 C.ft.) was advertised for sale through auction by the Divisional Forest Officer, Lyallpur/Jhang, Forest Division, Lyallpur, on 8-4-1965. The petitioner participated in the auction. His bid, being highest, was accepted by the Chief Conservator of Forests vide letter dated 8-5-1965. Total contract price was Rs.30,310. In pursuance to the acceptance of the petitioner's offer at auction, a formal agreement was executed between the present petitioner and Chief Conservator of Forests on 10-6-1965. Photostat of the agreement, dated 10-6-1965, subject to which the contract was to operate, has been placed on file. Period of two months was fixed for extraction of trees in the agreement. This time was to commence from the date of the issue of the order. Time was essence of the contract. A sum of Rs.3,000 was deposited as security by the petitioner. The petitioner was asked to commence the extraction work.
Contract could not be completed in time i.e. on or before 8-8-1965.The petitioner applied to respondent No.2 for extension in time. The Chief Conservator of Forests was pleased to extend the period upto 8-10-1965 vide his letter No.G-X.7/985/L subject to the payment of a penalty of Rs.200.
The letter granting extension is placed on file as Annexure 'C'. Petitioner failed to complete the contract within the extended period also. Again an extension was applied. The Chief Conservator of Forests, Lahore, granted the extension till 8-12-1965 subject to a penalty of Rs.100. It was further observed in letter, dated 22-11-1965 Annexure 'D', that the penalty for late payment of the sale price may be calculated at the rate of 10% per annum at the time of the completion report according to actual remittance. Since much turns upon this order of the Chief Conservator of Forests it will be useful to reproduce the same for facility of reference:- "To The Divisional Forest Officer, Lyallpur/Jhang/Forest Division, Faisalabad.
No.CX 7/1398/LC, dated 22-11-1965.
Subject:-Sale of Standing trees from Darsana Disty.RD 15-72 I & R (10 to 35). Ref: Your No.628, dated 28-10-1965.
As recommended by you the period of contract is hereby extended upto 8-12-1965 with penalty of Rs.100. The penalty for late payment of the sale amount may be calculated at the rate of 10% per annum at the time of completion of report according to actual remittance.
(Sd.) Chief Conservator of Forests, Lahore Region, Lahore."
2. The contractor completed his work before the target date of 8-12-1965 and also paid the due instalments. Amount of Rs.30,310, the total sale value of the trees, was to be paid in three instalments. First instalment of Rs.7,100 was due on 10-6-1965, second instalment of Rs.10,110 was to be paid on 20-6-1965 whereas the third instalment of Rs.10,100 was payable on 8-7-1965. First instalment was paid on 1-6-1965, second instalment of a sum of Rs.9,000 was paid on 28-10-1965 and the third instalment of Rs.11,210 was deposited on 3-12-1965. Thus looked at, there was a little delay in making the payment of two instalments. Range Officer, Gojra, after the work was completed, prepared a completion report on 16-5-1966 (Annexure 'F') and recommended for release of the petitioner's security, after deposit of the penalty as determined in accordance with the letter/order, dated 22-11-1965 of the Chief Conservator of Forests, Lahore Region, Lahore. The Divisional Forest Officer, Lyallpur, vide report, dated 2-1-1967 (Annexure 'G') addressed to the Chief Conservator of Forests observed that the penalty of Rs.827.28 was proposed on account of late payment of instalments. This amount of penalty had been worked out at the rate of 10% per annum' in accordance with the letter, dated 22-11-1965 aforenoted. It was further observed by the Divisional Forest Officer (Annexure 'G') that as the decision in respect of penalty on account of late payment had already been taken by the Chief Conservator of Forests it will not be advisable to impose maximum penalty at the rate prescribed in clause 8 of the agreement i.e.1% of the sum due for every 24 hours, for the former order regarding penalty in this case was on file. Thus, the Divisional Forest Officer recommended that the petitioner's security be released as has been done in some other similar cases where penalty at the rate of 10% per annum during 1965-66 was imposed, this being a similar case. However, the security was not released to the contractor. After a lengthy correspondence that followed, the Chief Conservator of Forests vide order dated 8-6-1968 (Annexure 'H') decided that the Contractor was liable to a penalty for late payment of instalments at the rate of 1% per day in accordance with clause 8 of the agreement. For facility of reference, completion report of the Range Officer (Annexure 'F'), recommendations of Divisional Forest Officer (Annexure 'G') and the order of Chief Conservator of Forests ordering imposition of penalty at the maximum rate are reproduced below:- Annexure 'F'. To The Divisional Forest Officer, Lyallpur/Jhang Forest Division, Lyallpur.
Copy of completion Report of Range Officer Gojra of Darsana Distributory.
No. 578 Gojra, dated 16-5-1966.
Completion report for the sale of standing trees Lot No. 35 sanctioned in favour of Sh. Abdul Rashid Contractor vide your letter No. 3389, dated 10-6-1965.
I beg to submit completion report for the abovementioned work as under:- {{TABLE}} Name of Range: Gojra.
Forest/Compt. etc. for which Darsana Disty. RD. the produce has been sold. 15-72/L&R Type of Material (main Main felling. felling/dead wind fallen trees or cut and stacked material.
Quantity and quality of 655 trees: the forest produce. 53,549 Cft.
Rate of sale Total sale value Rs.30,310 only.
Date on which felling/ extraction was to be completed under agreement/ sale condition. 8-8-1965 Date on which felling/ extraction was completed. 8-12-1965 Date on which instalments have to be paid Amount Due Date First instalment 7,100 10-6-1965 Second instalment 10,110 20-6-1965 Third instalment 10,100 8-7-1965
10. Date on which the instalments have been paid.
First instalment 7,100 1-6-1965 Second instalment 9,000 28-10-1965 Third instalment 11,210 3-12-1965
11. Interest/penalty if any levied on account of extension granted to the contractor for completion of work Rs.300
12. Penalty on account of late payments.
13. Total penalty (11 & 12) Rs.300
14. Has the penalty been paid if so when Not paid.
15. Damage done
(i) To the Forest growth Nil.
(ii)To canal service road Nil.
16.
17. #TBS
18. Rs.3,000 only.
19. #TBE
20. Amount of security deposited by the contractor
21. Recommendation: Security of the contract may kindly be released after depositing of the penalty.
22. Remarks. The contractor has not cut the following trees as they were disputed:- Girth No. of trees.
(1) RD 23-24/L Shisham 6'-2" 3
(2) RD 56-57/L Kikar 5'-0 9
(3) RD " 5'-10" 10
(4) RD " 4'-10" 11
(5) RD 60-61/R Kikar 7'-5" 6 Tree No. 1 is situated in Dholan RD and the other trees have been claimed by the Zamindars.
(Sd.) Range Officer, Gojra,15.5.
Annexure 'G'
"Office of the Divisional Forest Officer, Lyallpur/Jhang Forest Division, Lyallpur.
To The Chief Conservator of Forests Lahore Region, Lahore.
No. 1, dated Lyallpur the Sub: Completion for the sale of standing Trees from RD 15-72/L&R Darsana Disty. (Lot No. 35) 1965- 66 sanctioned in the name of Sh. Abdul Rashid s/o Sh. Abdul Majid.
Reference: Your letter No. C-X-7/165/LC, dated 12-7-1966. {{TABLE}} ' If the reference is made to your letter No. C-X-71398/L, dated 22-11-1965 it was ordered that the penalty on account of late payment of the sale amount may be worked out at the rate of 10% per annum at the time of completion report according to the actual remittance.
' On receipt of above orders the completion report was prepared and submitted vide this office letter No. 1485/LC, dated 1-6-1966 and a penalty of Rs.
827.28 was proposed on account of late payment at the rate of 10% per annum in accordance with the orders referred to above.
' As the decision in respect of penalty on account of late payment in this case has already been made, it would not be adivsable to impose penalty at the rate prescribed in clause 8 of the agreement deed i.e. one percent of the sum due for every twenty four hours, because, the former decision regarding penalty on this case is on file. The contractor is requesting for release of his security again and again.
' Under the abovementioned circumstances it is requested that the security may kindly be released in favour of the contractor keeping in view the previous orders in this respect; as the securities of some other contractors were also refunded after imposing penalties at the rate of 10% per annum during 1965-66 for which year this case belongs.
An early action is requested.
(Sd.) Divisional Forest Officer, Lyallpur/Jhang Forest Div. Lyp.
2-1-1967 Annexure 'H'.
"Office of the Chief Conservator of Forests, Lahore Region, Lahore.
To Mr.Abdul Rashid, Forest Contractor and Member of Basic Democracy, Lakar Mandi, Multan.
No.C-X-7/2773/L, dated Lahore the 8th June, 1968.
Sub:- Completion report for the sale of standing trees from R.D.15-72 I & R Darsana Distributary (Lot No. 35) 1965-66.
Dear Sir, This is to inform you that the penal clauses are mandatory and no discretion can be exercised. You should please pay the penalty according to the agreement deed signed by you i.e. @ Re. 1 per cent per day before the security is released in your favour.
Yours faithfully, Sd/-for Chief Conservator of Forests Lahore Region, Lahore.
No. dated Lahore the the June, 1968.
Copy forwarded to the Divisional Forest Officer, Lyallpur/ Jhang Forest Division, for information and necessary action in continuation of this Office No. 2562/L, dated 15-6-1967.
Sd/- Chief Conservator of Forests, Lahore Region, Lahore.
8-6-68"
3. A sum of Rs. 30,195.80 was worked out as penalty at the rate of per day. The petitioner contractor was asked to pay the amount failing which he was threatened with coercive measures. This order was passed on 3-6-1969 (Annexure L). Faced with this threatened recovery, the petitioner challenged the demand through a civil suit instituted on 2-6- 1970 in Court of Administrative Civil Judge, Lyallpur. Vide order, dated 9-6-1970, the plaint was rejected under Order VII, rule 11, C.P.C. on the sole ground that the amount was sought to be recovered as arrears of land revenue and the suit could not proceed unless the required amount was first deposited under protest. Learned Civil Judge drew support for this view from the case of Noor Muhammad v. Province of West Pakistan PLD 1966 B J 19. This order was challenged in appeal. Learned Additional District Judge, vide his order (Annexure 'N'), did not grant the interim relief of temporary injunction stopping the recovery of the disputed amount.
Appeal, however, remained pending for adjudication. At this juncture when the petitioner did not succeed to obtain interim relief, he left the matter there and decided to invoke constitutional jurisdiction of this Court for quashment of the demand. Writ Petition was admitted to regular hearing on 14-9-1970. Recovery was stayed subject to furnishing of security. Respondent has filed written statement. Apart from certain preliminary objections, Writ petition has been contested on merits also.
4. I have heard learned counsel for the parties and examined the record. Learned counsel for the petitioner contended that the Chief Conservator of Forests granted two extensions subject to payment of a sum of Rs.300 as penalty. In the later extension, taking note of some delay in payment of instalment, the Chief Conservator observed that penalty at the rate of 10% per annum be charged from the petitioner. This order was made in purported exercise of powers under clause 8 of the agreement dated 10-6-1965. Learned counsel states that when once a competent Officer had determined the penalty in terms of clause 8 of the agreement it was not open to the successor officer to increase the amount of penalty and enlarge the burden of the petitioner.It was a penal action which could not be revised subsequently to the deteriment of the petitioners, moreso without affording him an opportunity of hearing. Learned counsel contended that the respondent could only recover reasonable compensation that it has suffered on account of late payment and could not,charge the peitioner with maximum penalty. The amount worked out at a per day, exceeds even the contract amount. Learned counsel has submitted that once an order has been passed by a competent authority which has taken effect and come into operation, the respondents were left with no competence to retrace its steps. It has been further contended that assuming such an order could be made, even then, the petitioner was at least, entitled to an opportunity of prior hearing to convince the successor officer that no grounds existed for imposition of penalty at such a high rate against the petitioners. The contention of learned counsel is that it is not the purport of the agreement that maximum penalty could alone be recovered and that no discretion was vested in the competent authority to determine penalty at a lesser rate.
Learned counsel has stated that the respondents had no locus poenitentiae to recall the earlier order without hearing the petitioner.
5. Learned counsel for the respondents raised preliminary objections relating to the maintainability of the writ petition and grant of dis cretionary relief to the petitioner in constitutional jurisdiction. He contended that the petitioner, through the present writ petition seeks enforcement of contractual rights and obligations arising out of a contract which is impermissible in constitutional jurisidcition. For this, the petitioner was bound to approach the civil Court. Learned counsel placed reliance upon Shamshad Ali Khan v. Commissioner, Lahore etc.1969 SCMR 122, Al- Mahmood Industries Pakistan Ltd. v. The Trading Corporation of Pakistan Ltd. & another 1974 SCMR 51 and Mir Rasool Bux Khan Sundrani & Co. v. People's Municipality, Sukkur and 2 others PLD 1975 Kar.
878. Learned counsel further contended that the petitioner had already availed of the alternate remedy by filing a civil suit. Once he has taken resort to an alternate remedy and availed it of, it was not open to the petitioner to change his course of litigation and invoke constitutional jurisdiction for by-passing the normal remedies of law. If the petitioner felt aggrieved by the order of learned Additional District Judge refusing him the prayer for interim relief, he could have challenged the same in the High Court. Therefore, the petitioner in view of this conduct of his was not entitled to any relief in constitutional jurisdiction. His attempt, therefore, to seek resolution of a controversy arising in a suit through constitutional jurisdiction of the High Court by-passing the remedy provided under ordinary law was bound to create confusion and frustrate the purpose of the constitutional jurisdiction which must be avoided. On the point of availability of the alternate remedy for an exercise of constitutional jurisdiction, reliance has been placed upon the case of Colony Sarhad Textile Mills Ltd. v. Central Board of Revenue Pakistan etc. PLD 1966 Lah. 492, Muhammad Fazal v. Commissioner for Payment of Wages and another 1974 PLC 89 and Anjuman-e-Ahmadia, Sargodha v. The Deputy Commissioner, Sargodha etc. PLD 1966 SC 639.
6. On merits it has been contended by learned counsel that Chief Conservator of Forests in his order, dated 22-11-1965, when imposing penalty at the rate of 10% per annum for delayed payment of instalments had ignored the mandatory provisions of clause 8 of the agreement. Since the original order was passed in ignorance of the correct import of the agreement, it was open to his successor to make variation in the earlier order and determine penalty afresh at the rate of 1% per day. Powers vested in the respondents to vary the earlier order which was not legal. Reliance has been placed on Brooms Legal Maxims 10th Edition page 108 and the case of Mohammad Aslam Mirza v. Mst.Khurshid Begum PLD 1972 Lah.
603. Learned counsel, however, conceded that if the earlier order had been correctly passed, then the subsequent order could not be made. But then hastened to add that since the earlier order was in disregard of the mandatory provisions of clause 8 of the agreement, therefore, in view of the law laid down in the case of Abdul Rashid v. Secretary, Home(Police Department), Government of East Pakistan and others PLD 1965 Dacca 433 the respondents acting under the principle of locus poenitentiae had full power to modify the earlier order. As regards the contention that no opportunity of hearing was granted to the petitioner, learned counsel for the respondents submitted that since the matter arose out of a contract, no such opportunity was needed or required to be given. In the view of learned counsel it is only in those cases where the matter is dealt with under a statute or statutory Rules that opportunity of hearing is required. He has not supported himself by reference to any precedent case law. While interpreting the word "shall be liable" a phrase used in clause 8 of the agreement, learned counsel contended that principles for interpre tation of statutes are different from the Rules relating to construction of documents. Relying on page 39 of the Book (Construction of Deeds and Statutes by Odgers, 4th Edition), it has been contended that the agreement must be read as a whole to ascertain and find out the true import of its several clauses so as to reaching a harmonious construction of the entire document. Various clauses must be compared and contrasted to find out truly the mind of the contracting parties as expressed in the agreement. Learned counsel compared and contrasted the provisions of clause 8 with proviso to clause 11 and clause 19(b) of the agreement to ascertain where the discretion in matter of penalty was shown to exist it has been clearly provided in the agreement.
However, in clause 8 of the agreement no such discretion is shown to exist in the Officer imposing the penalty, therefore, whenever there was delay in payment of instalments, the contractor was bound to pay the maximum penalty as provided in this clause. Since in the case under consideration, there was admittedly delay in the payment of two instalments, the Chief Conservator of Forests had no jurisdiction to award lesser penalty at the rata of 10% per annum contrary to the express and mandatory requirements of clause 8 of the agreement. In this view of the matter, if the successor officer corrected the mistake, he committed no illegality.
7. Learned counsel for the petitioner, in exercise of his right of reply, contended that only the validity of order passed by successor Chief Conservator of Forests imposing penalty at the maximum rate without hearing the petitioner was under challenge in constitutional jurisdiction. The petitioner was not in any manner enforcing the terms and conditions of the contract through this writ petition. No factual controversy is involved. Learned counsel has submitted that once the officer had made the order which had been duly taken effect, the successor officer was vested with no jurisdiction to review the order earlier passed and that too without affording an opportunity of hearing to the petitioner to explain the causes of a little delay in making payment of two instalments. The Chief Conservator of Forests has clearly violated even the elementary principle of Rule of Natural Justice. As regards the rule of alternate remedy, learned counsel placed reliance upon Messrs Usmania Glass Sheet Factory Ltd. v. The Assistant Collector of Customs, Chittagong and another PLD 1968 Dacca 276; the Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 and Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lah.
1155.
8. Learned counsel, then, lastly contended that the conduct of respondent No.1 was extremely arbitrary, harsh, unjust and unfair, therefore, the order passed by him is liable to be struck down in exercise of constitutional jurisdiction. It has been further pointed out that the petitioner had clearly been discriminated against, for contractors placed in similar circumstances during the same period had been asked to pay penalty at the rate of 10$ per annum whereas the petitioner alone has been picked up by the respondents to pay maximum penalty at the rate of 1% per day. The respondents had not shown any damage which they have suffered and as such were not entitled to claim the maximum amount of penalty.
9. Narration of facts and contentions raised by learned counsel for the parties being complete, the stage has reached for discussion both on preliminary points and on merits.
10. As regards the availability of alternate remedy, the decisions are not uniform. Whether or not a remedy provided by law is adequate for purposes of barring the enforcement of constitutional jurisdiction depends on the facts and circumstances of each case. In the case of Municipal Committee, Multan, through its Chairman v. Burmah Shell Storage and Distributing Co. of Pakistan Ltd. and another PLD 1976 Lah. 726 while dealing with the preliminary objections of the Municipal Committee, the Court observed:- "As regards the first objection, this Court, has ample authority to exercise its extraordinary jurisdiction under Article 199 of the Constitution in an appropriate case even if civil suit may be pending. Reference is made to Salahuddin etc. v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 226.
' Normally a person should approach this Court after exhausting the alternative legal remedy provided by law, but if such remedies are inadequate and, are not efficacious and the order complained of is passed without lawful authority then this Court can entertain a petition under Article 199 of the Constitution. The objection is otherwise irrelevant, for, in both the petitions either the Municipal Committee or the private party has gone in appeal against the orders of imposition of octroi duty."
' In case of the Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279, the Supreme Court of Pakistan observed:- "It is thus evident that the appellant challenged the very jurisdic tion of the Capital Development Authority (hereinafter referred to as "the C.D.A) to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col.Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others PLD 1961 SC 119, that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well-recognized exceptions to the general rule is a case where 'an order is attacked on the ground that it was wholly without authority."
' Similar are the observations in Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others PLD 1973 Note 77 at p. 104, It has been observed:- "It is now well-established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law and, therefore, outside the area within which the law recognises a privilege to err, then such action amounts to a "usurpation of powers unwarranted by law" and such an act is a nullity; that is to say, the result of purported exercise of authority which has no legal effect whatsoever". In such a case, it is well- established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate in such circumstances something which would be patently unjust or unlawful."
' In the case of Messrs Usmania Glass Sheet Factory Ltd. v. Assistant Collector of Customs Chittagong and another PLD 1968 Dacca 276, the learned judges observed:- "A right to appeal which has a pre-condition of depositing the entire amount of imposition cannot be considered to be as inexpen sive and beneficial as filing a writ petition under Article 98(2) of the Constitution."
' Dealing with the similar situation, this Court, in the case of Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lah. 1155, observed:- "The second part of his contention that is the petitioners had as adequate remedy by way of suit is more important from the point of view. In this connection, we should note that some of these petitions were filed in 1964 but no counter-affidavits have been submitted on behalf of the respondents and no preliminary objection was taken to their maintainability until the addresses on behalf of the petitioners were concluded. The delay in raising the objection has resulted in the pendency of these petitions for several years. The consequences of this delay is that if the objections were now to be upheld, all the time that has been spent till today will have to be commenced by the petitiners over again. This consideration itslef, to our minds, is enough to defeat the objection, but the Advocate-General insisted on it by urging that the jurisdiction of this Court was in question, therefore, the considerations of delay were immaterial. He cited Mahboob All Malik v. The Province of West Pakistan and another PLD 1963 Lah. 575 to explain the scope of Article 98 of the Constitution and we have found in that authority the following observation at page 579 which is against the respondents:- "If, therefore, relief of the requisite kind and to- the requisite extent is available under another remedy, and the adequacy of the other remedy is to be determined with reference to a comparison of the speed with which the relief would be available under that remedy or under Article 98, the comparison must be based on a considration of an intrinsic advantage of speed, if any, that this Court may have in respect of the kind of determination that is to be made in a particular category of cases. If for example the decision depends on a point of law alone, which in any case will have to be decided by this Court finally will it not be speedier, if this Court did straight away what it anyhow would be called upon to do later?"
' The answer to the above question for purposes of these petitions must be in the affirmative because, as mentioned above, we are considering legal aspects only. In addition to this authority there is a direct answer to the objection of the Advocate-General in Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639.
' In the case of Mst. Sattan and others v. Group Captain Mansoor Hussain Officer Commanding, P.A.F. Station, Sargodha Cantt. PLD 1962 (W.P.) Lan. 151, a Division Bench of this Court in para. 3 of the report observed:- "It cannot be denied that ordinarily a writ will not issue where another remedy is open to the petitioner, and it is obvious that if the person who applies for issue of a writ has already moved in the ordinary forum for getting the relief in the normal manner, a writ would not ordinarily issue. I am, however, clear in my mind that the rule enunciated above is not inviolable. The power to issue a writ vesting in this Court is not circumscribed by any cdnditions and consequently it is for this Court to determine whether or not that power should be exercised in any particular case before it. If one considers the circumstances of the present case, it becomes manifest that if the order of the respondent if it be against law is not vacated at the earliest possible oppor tunity, the petitioners would suffer in reputation and possibly in property. In these circumstances I am of the view that notwith standing that the petitoiners have already instituted a suit to get substantially the same relief as they are claiming by means of this writ petition, the institution of the suit by them should not stand in the way of the issue of a writ if, after considering the matter, this Court comes to the conclusion that one should issued."
11. The ratio available from the precedents cited at bar as to the availability of equally efficacious alternate remedy is that such a remedy is to be viewed and judged in terms of comparative speed, expense, convenience and effectiveness involved in the case if relief is allowed by the High Court in its constitutional jurisdiction. Of course, High Court can generally decline to step in the issue high prerogative writs under its constitutional jurisdiction when if equally efficacious alternate remedies are available at law but then it does not mean that there is any constitutional bar on the exercise of powers by the High Court in exercising its jurisdiction when issuing these writs nor is the Rule of Alternate remedy inflexible and inviolable. The facts that the High Court will ordinarily decline to step in, in the presence of equally efficacious remedy being available at law, is not due to any want of jurisdiction but for reasons of expediency. Each case, therefore, has to be decided in the light of its own accompanying facts and circum B stances. High Court will not and should not hesitate to come to the rescue and help of a person seeking enforcement of its constitutional jurisdiction where refusal to do so in its estimation would prolong the agony and involve unnecessary consumption of public time and the money of the aggrieved person. Moreso, when the matter to be decided is a question of law only. When judged in the light of the above observations, I feel inclined to hold that the writ petition which was admitted as far back as 14-9-1970 should not at this stage of time be thrown out on a technical plane when the whole exercise has already been made. Therefore, I have no hesitation in disagreeing with the preliminary objection raised by the learned counsel for the respondents on the question of availability of alternate remedy.
12. As regards the objection relating to the maintainability of the writ petition on the ground that its sole aim is to enforce rights and obligations arising out of the agreement, suffice it to say that the grievance of the petitioner is that of after having determined the amount of penalty by the Chief Conservator of Forests in his first order, the subsequent order by the respondent No.1 without hearing the petitioner lacked complete authority. In this view of the matter, the principle of law enunciated in , the judgments cited by learned counsel for the respondents are not attracted to the facts and circumstances of this case. The writ as such does not deal with the enforcement of rights and obligations flowing from the contract. Validity of the later order passed in violation of earlier order is alone under challenge.
13. Coming to the merits of the case, two points only require consi deration, one, whether after having determined the amount of penalty by the Chief Conservator of Forests which order was made in proper exercise of jurisdiction and conveyed to the petitioner could be subsequently modified to increase the amount of penalty and enlarge the burden of the petitioner without hearing him on a principle of Rule of locus poenitentiae i.e. power to recede till a decisive step was taken. There is much force in the contention of the learned counsel for the petitioner that when a decision has been made by a competent authority after having evaluated the entire state of circumstances and& communicated the decision to the other party which decision has als taken effect, no power is left in the authority to retrace its steps and make altogether a different order. There can hardly be any dispute with this rule of law so stated. In the instant case, the order was made by a competent officer namely the Chief Conservator of Forests who in exercise of his jurisdiction determined the amount of penalty at the rate of 10$ per annum and conveyed the decision to the petitioner. This act of the Chief Conservator of Forests did create certain right in the petitioner and as such it could not be subsequently modified. Therefore, I am of the considered view that no power vested in th successor Chief Conservator of Forests to determine the question o penalty afresh ignoring the earlier order altogether. This order als suffers from a basic legal infirmity. It is in disregard of the elementary principle of Rule of Natural Justice. The rule of audi alterm partem, variously defined and described in judicial precedents and text-books, has two elements, the first is that an opportunity to be heard must be given, the second, that this opportunity must be adequate and reason able. Both these matters are justiciable and it is for the Court t decide whether an opportunity has been given and whether the oppor tunity has been reasonable.There can be no universal standard fo reasonableness in such matters except that the Court's judicial conscience must be satisfied that a person against whom action had been proposed has had a fair chance of convincing the authority which proposed t take action against him that the (rounds upon which the action was proposed was non-existent or if existed they do not justify the action.In the instant case it is crystal clear that the petitioner was not afforded any opportunity of hearing muchless a reasonable opportunity before this adverse order raising the amount of penalty in variation of the earlier order was made by the successor Conservator of Forests, respondent No.1.Therefore, the order suffers from a serious error o law on this score also. Whether or not the order passed earlier was in consonance with the terms of the agreement, it is necessary to point out that in case of delay in payment of instalments the contractor was liable to pay a penalty calculated at the rate of 1% per day which penalty had to be determined by the competent authority. The words "shall be liable" employed in clause 8 of the agreement do not, to my mind, mean that in all cases of delay in payment of instalments th maximum penalty as spelt out in clause 8 of the agreement, has to be extracted from the petitioner contractor, without attending to the circumstances necessitating the causes of delay. The principle of law is well-settled that if a sum is named in the contract as the amount to be paid in case of breach or if the contract contains any other stipulation by way of penalty the party complaining of the breach is entitled, whether or not actual damage has occurred, to a reasonable amount of compensation. This principle finds recognition in section 74 of the Contract Act.
14. The respondents in the case under consideration have not shown as to what amount of damage was suffered by them in case of the delay in making payment of two instalments.
15. The order passed by the successor Conservator of Forests ordering the imposition of penalty at the maximum rate of 1$ per day which amount, as stated above, almost equals or is in excess of the contract amount, is opposed to the plain terms of clause 8 of the agreement and is violative of the principles of natural justice. The Chief Conservator of Forests had determined the penalty at the rate of 10% per annum which order had taken effect and could not be rescinded modified by his successor to charge penalty at the maximum rate.
16. In the result, writ petition is accepted, order dated 8-6-1968 o respondent No.1 imposing a penalty of Rs.30,195.80 is set aside and is declared to have been passed without jurisdiction and without lawfu authority. Parties are left to bear their own costs.