OSA/6/2003 of ANANT RAM NEGI Vs STATE on 29 December 2008

(1). OSA No. 6 of 2003.

Anant Ram Negi ..Appellant

Versus.

State of H.P. & ors. ……… Respondents.

For the Appellant(s) : Shri G.D.Verma, Sr. Advocate with Shri B.C.Verma, Advocate. Shri B.C.Verma, Advocate. For the Respondent(s): Shri R.M.Bisht, Deputy Advocate General for respondents 1 to 3. Shri Neel Kamal Sood, Advocate, for Respondents 4 & 5. for respondents 1 to 3. Shri Neel Kamal Sood, Advocate, for Respondents 4 & 5.

(2) OSA No. 19 of 2003.

State of H.P. & ors. …Appellants Versus. Anant Ram Negi . …Respondent.

For the Appellant(s) : Shri R.M.Bisht, Deputy Advocate General for the appellants. for the appellants.

For the Respondent(s): Shri G.D.Verma, Sr. Advocate with Shri B.C.Verma, Advocate, for respondent 1. Shri B.C.Verma, Advocate, for respondent 1.

Shri Neel Kamal Sood, Advocate, for Respondents 2 & 3

Coram:

The Hon’ble Mr. Justice Deepak Gupta, Judge . The Hon’ble Mr. Justice V.K.Ahuja, Judge.

Whether approved for Reporting ? yes

. Deepak Gupta, J

By this judgment, the aforesaid appeals are being disposed of since they arise out of the same judgment delivered by a learned Single Judge of this Court in Civil Suit No. 1 of 1998, decided on 1.1.2003, whereby the suit filed by the plaintiff was partly decreed and the plaintiff has been held entitled to recover a sum of Rs.7,17,417/- along with future interest @ 6 % per annum on the principal sum of Rs.6, 40,551/- till the date of realization of the amount.

Briefly stated the facts of the case are that the plaintiff purchased 477 trees of Deodar and Kail standing in chak Jangal Koti, Forest Range, Deha, Tehsil Kotkhai, District Shimla from various land owners. The land of the private owners was got demarcated from the competent revenue officers in the presence of Assistant Conservator of Forest, Shimla and other officials of the forest department. Thereafter 477 trees were marked by the forest department and due permission was given to the plaintiff for felling of the trees. The plaintiff felled the trees and out of 477 trees, 23 trees were converted into timber. At this stage, the forest department officials and the police seized the entire timber under the provisions of the H.P Land Preservation Act on the ground that the felling has been done in violation of the H.P Land Preservation Act. A case under sections 4 and 6 of the H.P. Land Preservation Act read with Section 379 of the Indian Penal Code and Section 33 of the Indian Forest Act being FIR No. 47/83 dated 25.3.1983 was registered against the plaintiff. It would be pertinent to mention that the value of the seized timber and trees was assessed at Rs. 9, 30, 980/- by the forest department. On completion of the investigation, charge-sheet was filed against the plaintiff which was registered as Case No. 276/1 of 1983 which was tried by the S.D.J.M, Theog. This trial ended in the acquittal of the plaintiff vide judgment dated 28.2.1987. Though the trial court acquitted the plaintiff/accused, it ordered that the seized trees and timber be confiscated to the State. Aggrieved by this order, the plaintiff preferred Criminal appeal No. 9-S/10 of 1987 against the order of confiscation. The said appeal was allowed by the learned Sessions Judge, Shimla vide his judgment dated 30.11.1987 and the seized trees and timber were ordered to be released in favour of the rightful owner. The State preferred a Review petition No. 3-S/4 of 1988 which was dismissed on 18.4.1988. Thereafter the State

aggrieved against the orders of the learned Sessions Judge, filed a Criminal Revision No. 33/88 in the High Court. The same was dismissed on 22.12.1992. Thereafter the State filed Special Leave Petition (SLP) No. 956 of 1995 in the Apex Court, which was dismissed on 5.5.1997. The State also challenged the acquittal of the present plaintiff. This appeal of the State being Cr. Appeal No. 398/87 was rejected on 11.7.1993.

It would be pertinent to mention that on 2.9.1983, the plaintiff had filed an application under Section 457/459 of the Criminal Procedure Code praying that the seized timber be sold otherwise the same would decay. The application was allowed and the SDJM, Theog, directed the Divisional Forest Officer to dispose of the seized timber and trees after assessing the value of the same. It was made clear that the value of the trees and timber and the sale proceeds would not be less than the value already assessed. The sale proceeds were directed to be deposited in the Government treasury. Later this order was modified on 20.1.1984 to the extent that the seized property was directed to be sold by the Forest Corporation after making proper assessment of the value thereof. The plaintiff was allowed to bid in the auction. The Forest Department was also directed to hand over the timber to the Divisional Manager, H.P State Forest Corporation, Shimla. It was also directed that before conversion/ exploitation of the felled trees, the Forest Corporation would prepare details regarding the classes of each felled tree and volume thereof and ensure speedy exploitation of the felled trees before conducting the auction. The Forest Corporation was also directed to give notice to the plaintiff of the dates fixed for auction of the timber. According to the plaintiff, on the dates so fixed he was present but no auction took place nor he was informed of any future date on which the auction was to be held. Later-on the plaintiff came to know that substantial part of the timber had been sold on 29.10.1985 behind his back without due notice to him. The trees and the logs were kept in the open unattended and unguarded, resulting not only in pilferage but were also damaged by fire and the amount of timber sold in auction was only 366.2959 cubic meters as against 1570.30 cubic meters seized by the respondents. Admittedly, the timber was sold between the years 1985 to 1991. According to the plaintiff, the timber was sold in auction at throw away price behind his back. The plaintiff worked out the market value of his timber and trees at Rs.20,02,655/- against which he had been paid a sum of Rs.2,90,428/- only. He therefore, filed a suit claiming the amount of Rs. 17,12,226/- along with interest @ 12% per annum w.e.f. 1.1.1988 to 31.7.1997 till the date of filing of the suit and interest @18% per annum from the date of filing of the suit till realization of the amount.

The defendants contested the suit on various grounds. It was alleged that the suit was barred by limitation and no notice under Section 80 CPC had been served upon the defendants before institution of the suit. Various other preliminary objections were raised. On merits, the fact of taking into possession the timber and selling the same was not denied by the defendants. It was, however, claimed that the plaintiff had felled the trees in violation of the provisions of the H.P Land Preservation Act and was, therefore, not entitled to compensation for the same. The valuation of the timber as claimed by the plaintiff was denied. According to the plaintiff, the timber was guarded properly. The Forest Corporation in addition to other pleas also took the plea that the timber was exploited as per settled norms and the total value of the timber realized was deposited in the Court after deducting the actual expenses and commission charges. It was stated that the notice of the auction was given in time to the plaintiff.

On the pleadings of the parties, the following issues were framed:-

1. Whether the plaintiff had lawfully felled 477 Deodar and Kail trees and converted 23 trees into standard sleepers etc. as alleged? OPP and Kail trees and converted 23 trees into standard sleepers etc. as alleged? OPP

2. In case Issue No.1 above is proved whether 448 unconverted trees and 287 scants of timber were wrongfully and unlawfully seized by the defendants from the lawful custody of the plaintiff, as alleged? OPP What was the value of the trees and timber so seized by the defendants? OPP

3.

4. Whether defendants failed to take due care to preserve the quality and quantity of the seized timber resulting in deterioration in the quality and value of the seized timber, if so, its effect? OPP

5. Whether there was pilferage by theft and fire of the seized timber due to the negligent act, deeds and conduct of the defendants, if so, its effect? OPP

6. Whether defendants 4 & 5 failed in converting the timber in commercially profitable size and the conversion was deliberately and unreasonably delayed, as alleged, if so, its effect? OPP

Whether the defendants 4 & 5 derelicted in conducting the sale of the seized timber without due publicity about auction thereof behind the back of the plaintiff resulting in fetching low sale price of the timber, as alleged? OPP

8. Whether the defendants 4 & 5 intentionally and unjustifiably failed to render true and proper accounts of the volume and sale proceeds of the seized timber which was taken over by them from defendants 1 to 3, as alleged? OPP unjustifiably failed to render true and proper accounts of the volume and sale proceeds of the seized timber which was taken over by them from defendants 1 to 3, as alleged? OPP

9. Whether the plaintiff is entitled for the amount claimed or any other amount as compensation for damages caused by the negligent acts, deeds and conduct of the defendants and from whom? OPP or any other amount as compensation for damages caused by the negligent acts, deeds and conduct of the defendants and from whom? OPP

10. Whether the suit is time barred OPD

11. Whether the plaintiff has no cause of action to institute the present suit? OPD the present suit? OPD

12. Whether a notice under Section 80 CPC has not been duly and properly served by the plaintiff on the defendants? OPD duly and properly served by the plaintiff on the defendants? OPD

13. Whether the plaintiff is estopped from instituting the present suit due to his acts of omission and commission? OPD present suit due to his acts of omission and commission? OPD

14. Whether the suit is barred by the principles of res judicata? OPD judicata? OPD

15. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? OPD purposes of court-fee and jurisdiction? OPD

16. Whether the suit is liable to be dismissed under Order 7 Rule 11 (d) of the CPC? OPD 4 & 5. Rule 11 (d) of the CPC? OPD 4 & 5.

17. Relief.

The learned Single Judge decided issues No. 1, 2, 4, 5, 6 and 10 in favour of the plaintiff. Issues No. 3 & 9 were partly allowed in favour of the plaintiff and it was held that the value of the seized felled trees and timber was Rs.

9,30,980/- and the plaintiff was entitled to recover Rs. 6,40,551/- @ 6% p.a. with effect from 2.8.1995 till the date of realization of the amount. Issues No. 8, 12, 13, 14, 15 and 16 were decided against the defendants and in favour of the plaintiff and the suit was decreed in terms mentioned hereinabove.

Aggrieved by the said judgment, appeals have been filed both by the plaintiff as well as by the State of H.P The following points arise for determination in this appeal:-

(i) Whether the plaintiff had illegally cut the timber and therefore, the seizure was legal and valid? timber and therefore, the seizure was legal and valid?

(ii) Whether the plaintiff is entitled to recover the value of the timber, If so, what is the value thereof? the value of the timber, If so, what is the value thereof?

(iii) Whether the suit is barred by limitation? (iv)Whether the plaintiff is entitled to interest. If so, at what rate and from which date? (iv)Whether the plaintiff is entitled to interest. If so, at what rate and from which date?

The first point taken by the State is that the timber was cut in violation of the provisions of Sections 4 & 6 of the H.P

Land Preservation Act. According to the defendants, though the trees were marked for felling by the competent forest authorities, the same could not have been felled without taking permission under the H.P Land Preservation Act. The learned Single Judge has dealt with this issue in detail. The defendants have relied upon the document Ex.DA and contended that this notification issued by the State Government prohibited felling of the trees in concerned areas. A perusal of Ex. DA shows that it is not a notification under Section 3 of the H.P. Land Preservation Act but is a notice issued by the Deputy Commissioner, Shimla inviting objections from the affected persons under Section 8 of the said Act. Till date no notification has been produced or proved on record. Even in the criminal case, no such notification was produced. It was for the State to prove that a notification had been issued under Section 3 of the H.P Land Preservation Act, 1978 notifying the area in question as notified forest. Since this notification has not been produced the learned Single Judge has rightly held that the trees had been legally felled and, therefore, the seizure was not warranted by law. We may also add that as is apparent from the facts narrated above that the property in question was the case property in a criminal case. It was within the jurisdiction of the criminal court to issue appropriate orders for disposal of the case property. The learned trial court issued orders in this case and the case property was ordered to be sold. Later the trial court ordered confiscation of the timber etc. in favour of the State even while acquitting the plaintiff. However, the learned Sessions Judge set aside the orders of the trial court and directed that the timber should be handed over to its rightful owner. This order of the trial court was upheld by this Court. Even the SLP filed by the State was dismissed by the apex Court. Therefore, there is an order of a Court of competent jurisdiction that the case property be ordered to be returned to its rightful owner. This order has attained finality. After this order was passed, the plaintiff filed an application before the trial Court claiming that he is the rightful owner of the case property and this application was decided in favour of the plaintiff on 16.8.1994 vide Ex.DB. This order was never challenged by the State. Therefore, it is not open for the State to contend that the plaintiff is not the rightful owner of the seized timber.

Before the learned Single Judge, the State had urged that the suit was barred by limitation since this suit was not filed within one year of the date of seizure as prescribed under Article 80 of the Limitation Act. The learned Single Judge held that Article 80 was not applicable and in fact Art.

91 (b) of the Limitation Act was applicable and, therefore, the limitation was three years. According to the learned Single Judge, the starting point of limitation was 16.8.1994 when the trial court passed an order holding the plaintiff to be the true owner of the case property and since the suit was filed on 16.8.1997, the same was within limitation.

It has been strenuously argued by Shri R.M.Bisht, learned Deputy Advocate General that the finding of the learned Single Judge is not proper. He urges that the learned Single Judge has not rightly considered the language of Section 91(b) of the Act which reads as follows:- “Description of suit.

Period of limitation. Time from which period beings to run.

91. For compensation –

(a) xxx

xxx xxx

(b) for wrongfully taking Three years When the property or injuring or wrong- is wrongfully taken or -fully detaining any when the detainer’s other specific movable possession becomes property unlawful.”

Shri R.M.Bisht, contends that there are three starting points of limitation contemplated under this article; (i) when the property is wrongfully taken; (ii) when the property is wrongfully injured; and (iii) when detainer’s possession becomes unlawful. He contends that in the present case, as far as the first point is concerned, the wrongful seizure of the property took place on 25.8.1983 and the limitation of three years expired on 25.8.1986. He further contends that the injury, if any, to the property i.e. standing trees and timber took place as per allegations of the plaintiff took place between the years 1984 to 1991. Consequently, limitation would expire in 1994 and even then the case wasnot filed within limitation.

On the last point, he submits that the possession of the State became illegal the minute the appellate court held the rightful owner entitled to the trees and timber. According to him, the cause of action arose in favour of the plaintiff on 30.11.1987 when the appeal was decided by the learned Sessions Judge in his favour and it was ordered that the seized trees and timber be released in favour of the rightful owner. He contends that further litigation in the review petition and SLP will not extend the period of limitation since the plaintiff has not alleged or proved that the orders of the learned Sessions Judge were ever stayed by any of the higher courts. He contends that once the learned Sessions Judge had decided the matter in favour of the plaintiff, he should have immediately filed the application for release of the money /timber/ trees on 30.11.1987 itself and that the plaintiff cannot be permitted to take advantage of his own negligence in not filing this application by taking benefit of the other proceedings filed in the case.

On the other hand Shri G.D.Verma, learned senior counsel for the plaintiff has urged that the learned Single Judge has rightly decided this issue. He also urges that the State should not be permitted to raise the plea of limitation.

Conclusion

The question which arises for consideration is whether the order dated 16.8.1994 is the starting point of limitation in the present case or not. Undisputedly, the timber was seized on 26.5.1983 and criminal trial started. During this criminal trial the plaintiff filed an application on 2.9.1983 before the trial court that the case property be disposed of. This application was allowed and it was ordered that the case property should be disposed of after assessing the valuation of the same and the sale proceeds shall not in any case be less than the value so assessed. We are not concerned with the modification made to this order. It is not disputed that the sale of the timber/trees took place between the years 1985 to 91. In the meantime, the trial ended in the acquittal of the plaintiff vide judgment dated 28.2.1987 but the trial court ordered that the timber be confiscated to the State. The plaintiff filed an appeal aggrieved by the order of confiscation of the case property. This confiscation order was set aside by the learned Sessions Judge vide his judgment dated 30.11.1987. The relevant portion of the order of the learned Sessions Judge reads as follows:- “In view of the findings on point No.1 above, the appeal is accepted and the order of confiscation of the timber in question is set aside. The timber is ordered to be returned to the rightful owner.”

The learned Sessions Judge rightly directed that the timber be returned to the rightful owner. At this stage, either the plaintiff could have filed a civil suit to establish the fact that he is the rightful owner or could have filed an application before the trial Court to determine who is the rightful owner of the timber. Till this stage, neither the trial court nor the appellate court had determined who is the rightful owner. The review petition instituted on 12.1.1988 was rejected by the learned Sessions Judge on 18.4.1988. Thereafter a Criminal Revision No. 33/88 was filed. A learned Single Judge of this Court dismissed the revision petition by holding that since no offence under the Indian Forest Act was found to have been committed, the confiscation of the timber under Section 55 of the said Act could not have been ordered.

As has been urged by Shri R.M.Bisht, the plaintiff has failed to show that the order of the learned Sessions Judge dated 30.11.1987 directing that the timber be released in favour of the rightful owner has not been stayed by any of the superior courts. Once such an order was passed, the possession of the State became unlawful and limitation started running.

The plaintiff filed an application for release of the case property on 6.1.1994. There is no material on record to show why this application was not filed earlier. Therefore, the order dated 16.8.1994 will not extend the period of limitation which had already expired. At best the period spent in pursuing this application could have been excluded in terms of Section 12 of the Limitation Act. Even if this period is excluded, the suit which was filed on 16.8.1997 was miserably barred by the limitation. Whether the limitation is reckoned from the date of order of the learned Sessions Judge or the order of the High Court in Criminal Revision, or order of the High Court in Criminal Appeal, the suit was not filed within 3 years of any of the said dates. Therefore, we are constrained to hold that the suit of the plaintiff was not within limitation and the learned Single Judge erred in holding that the same is within limitation.

The plea of Shri G.D.Verma that the State cannot be permitted to raise the objection of limitation is without any merit. Here we are dealing with the question of limitation in respect of a civil suit. Section 3 of the Limitation Act in no uncertain terms provides that every suit instituted after the prescribed period of limitation should be dismissed even if such defence of limitation has not been raised. In the present case, a defence has been raised and an issue was framed in this regard. There is no provision for condonation of delay in a civil suit. If the suit is not within limitation then the court is bound to dismiss it. A sympathetic approach may be taken in an appeal or in an application but in a civil suit where there is no provision for condonation of delay, it is incumbent upon the Court to dismiss the suit if the same has not been filed within limitation.

Though we have decided that the suit is not within limitation, we propose to dispose of the other issues also.

As far as the valuation of the timber is concerned, the learned trial court while disposing of the application to sell the case property had directed the State to evaluate the market price of the timber and trees and had clearly stated that the market price will not be less than this evaluation. The learned Single Judge has decided the case on the basis of this evaluation whereby the State had assessed the value of the timber at Rs.9.30,980/-.

Shri G.D.Verma has strenuously urged that it has been proved on record that the timber was Samudha timber i.e. Grade-I timber and that the same was not stored properly leading to pilferage and deterioration in the quality of timber. He, therefore, contends that the plaintiff is entitled to the market value of the timber as on the date of the sale on the basis of the market value fixed by the Himkastha Sale Depots vide Ex.7/A.

We are unable to accept this contention. It was for the plaintiff to prove the market value of each lot of timber on the date when the same was auctioned. In the present case, the timber and trees were sold in different lots on different dates. One rate of 1988 could not be applied to all these cases. The plaintiff should have co-related the timber initially seized with the timber sold in the lots and should have worked out the market value on each date when the timber has been sold. This has not been done. Therefore, the learned Single Judge rightly fell back on the assessment of the value of timber done by the State.

Out of the sale proceeds of the trees and timber, the plaintiff was paid a sum of Rs. 2, 6, 683/- and Rs.42,516/- i.e. Rs.3,19,199/-. After the trees and timber were sold, amounts of Rs.2, 50,428.93 paise and Rs. 40,000/- were deposited on 24.1.1987 and 2.7.1987, respectively, i.e. Rs. 2, 90,428.93 paise in all, The remaining amount is on account of interest. If the interest is discounted, the difference in the value of timber works out to Rs.6,40,551.07 or say Rs. 6,40,551/-. If the suit was within limitation, the plaintiff would have been entitled to this amount of Rs.6,40,551/-.

In so far as the interest is concerned, we are of the considered opinion that the learned Single Judge erred in not granting the interest to the plaintiff prior to 1995. This was probably done on account of the fact that the plaintiff was paid interest of Rs.28,770/- on the amount of Rs.2,94,428.93 paise.

We feel that the learned Single Judge erred here. For which period and at what rate this interest has been paid has not been proved by the State. Whether the amount in question

was deposited in interest carrying fixed deposit or whether it had been just kept in non-interest carrying civil court deposit has not been proved on record. We would have been inclined to grant the interest @ 6% per annum to the plaintiff right from the date of seizure i.e. on 25.3.1983. However, we find that the plaintiff in his suit has claimed interest only from 1.1.1988. We, therefore, hold that the plaintiff would have been entitled to interest @ 6% per annum on the sum of Rs.6,54,297/- from 1.1.1988 till payment of the amount after adjustment of the interest already paid to him as mentioned hereinabove.

In view of the above discussion, we allow the appeal filed by the State and hold that the suit filed by the plaintiff was barred by limitation. Therefore, the appeal filed by the plaintiff is dismissed. In the peculiar facts and circumstances of the case, there shall be no order as to costs.

( Deepak Gupta ), J.

December 29, 2008

( V.K.Ahuja ),J.

s.