M/S NATESAN AGENCIES (PLANTATIONS) versus STATE REP. BY THE SECRETARY TO GOVERNMENT ENVIRONMENT AND FORESTS DEPARTMENT on 20 August 2019

1. It is beyond the pale of doubt that in the scheme of theWildlife Protection Act 1972, issuance of a notification underSection 18 thereof has the peculiar and striking effect, of arrestingthe accrual of any right in the land comprised within the limits ofCthe area specified in such notification except by way oftestamentary or intestate succession (vide Section 20 ibid.). Evenif the appellant was given the land in question on lease for a periodof 5 years from 01.07.1972, that period came to an end on30.06.1977. On this date of completion of the term of the lease,Dindisputably, the notification under Section 18(1), which was issuedon 06.03.1976, was in operation and it had been the specificassertion of the appellant that the subject land was included inthe said notification. That being the position, there was absolutelyno occasion for the appellant acquiring any further right in theland in question after expiry of the term of his lease on 30.06.1977.EFor this reason alone, this Court clearly of the view that the socalled second lease deed, said to have been executed in favourof the appellant on 20.03.1978 was of no effect. In other words,the notification under Section 18(1) having been issued on06.03.1976, no right in the land in question could have beenFacquired except by succession and hence, acquiring of any rightby the appellant in the subject land, said to be covered by thesaid notification dated 06.03.1976, by way of a lease, was absolutelyout of question. [Para 16] [543-B; 544-A-C]

2. The entire substratum of the case of the appellant isGknocked to the ground once it is found that the appellant hadacquired no right under the said second lease dated 20.03.1978and least any right against the State. Noteworthy it is that in allthe previous litigations, initially seeking exclusion of land inquestion from the sanctuary; then seeking compensation for its H

inclusion; and then questioning its exclusion, the Mutt had beenan active participant. In fact, the last petition seeking to questionthe exclusion was filed jointly by the Mutt and the appellant.However, the Mutt has not joined the claim for damages in thissuit. The appellant had no right whatsoever to claim damageswith reference to the alleged cause of action based on the orderof exclusion dated 19.11.1993 for the reason that the allegedsecond lease was of no effect and the appellant had acquired noright thereunder. In other words that if at all the exclusion orderdated 19.11.1993 furnished any right to maintain an action againstthe State, only and only the Mutt could have maintained such anaction but not the appellant. The suit filed by the appellant isliable to be dismissed on this count alone. [Para 16.1] [544-D-G]

3. The Division Bench has rightly observed in the impugnedjudgment that there is nothing on record to establish that theoriginal owner and the plaintiff were prevented from going insidethe forest and collecting the usufructs. In a comprehension ofthe facts on record and the law applicable, it cannot be said thatthe plaintiff-appellant was prevented from exercising its lawfulrights in any unlawful manner by the State. Hence, thereappears no basis for the appellant to maintain an action fordamages. [Para 17.2] [545-F-G]

Limitation

4. Section 14 is one such provision in the Limitation Actthat provides for exclusion of the time spent in prosecuting onecivil proceeding bona fide in a Court not having jurisdiction, whilecomputing limitation in any suit where the matter in issue is sameas that of the earlier proceeding. [Para 21.4] [548-C]

5. In the present case, except the fact that the earlier writpetition in challenge to the exclusion order dated 19.11.1993 wascivil proceeding and the plaintiff might have been prosecutingwith due diligence, none of the other requirements of Section 14of the Limitation Act are satisfied. The basic requirement, thatthe matter in issue in the earlier and the later proceeding oughtto be the same; and both the proceedings, earlier and later, oughtto relate to the same cause of action and for the same relief, is A

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Atotally missing. Rather, the matter in issue in the earlierproceeding could well be contradistinguished from the matter inissue in the present suit. In the said earlier proceeding, theplaintiff-appellant joined the Mutt to assert that the respondent-State was not entitled to exclude the land in question fromsanctuary; and that the State ought to take the land and ought toBpay compensation as proposed by some of its officers. On theother hand, the claim in the present suit is founded on the groundthat the plaintiff has suffered loss due to the proceedings underthe Act of 1972 and then, due to exclusion of the subject landfrom acquisition. The relief claimed in the present suit and matterCin issue herein cannot be said to be the same as had been inissue in the earlier proceeding i.e., the said writ petition againstthe exclusion order dated 19.11.1993. Apart from the fact thatthe earlier proceeding i.e., the said writ petition was for a differentrelief for quashing the exclusion order dated 19.11.1993, it isalso pertinent that the said writ petition was dismissed on meritDand not for want of jurisdiction. Applicability of Section 14 of theLimitation Act is totally ruled out in this case. [Para 21.5][551-D-H; 552-A]

Thiru John v. Returning Officer & Ors. (1977) 3 SCC540 : [1977] 3 SCR 538 ; Sushil Kumar v. RakeshEKumar (2003) 8 SCC 673 : [2003] 4 Suppl. SCR 802 ;Standard Chartered Bank v. Andhra Bank FinancialServices Ltd. & Ors. (2006) 6 SCC 94 : [2006] 2 Suppl.SCR 1 ; Union of India v. Hari Krishan Khosla (Dead)by LRs. (1993) Supp (2) SCC 149 : [1992] 1 Suppl.FSCR 620 ; Kasturi Lal v. State of U.P. AIR 1965 SC1039 : [1965] SCR 375 ; N. Nagendra Rao & Co. v.State of A.P. (1994) 6 SCC 205 : [1994] 3 Suppl. SCR144 ; Union of India v. Sancheti Food Products Ltd.(2015) 15 SCC 447 ; Rameshwar Lal v. MunicipalCouncil, Tonk & Ors. (1996) 6 SCC 100 : [1996] 5GSuppl. SCR 227 ; Union of India v. Shring ConstructionCo. (P) Ltd. (2006) 8 SCC 18 : [2006] 7 Suppl. SCR 273 ; State of A.P. v. Challa Ramkrishna Reddy & Ors.(2000) 5 SCC 712 : [2000] 3 SCR 644 – referred to.

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC.TO GOVT. ENVIRONMENT AND FORESTS DEPT.

Yeshwant Deorao v. Walchand Ramchand AIR 1951SC 16 : [1950] SCR 852 ; Madhavrao NarayanaraoPatwardhan v. Ramkrishna Govind Bhanu and Ors. AIR1958 SC 767 : [1959] SCR 564 ; Zafar Khan and Ors.v. Board of Revenue, U.P. and Ors. 1984 (Supp) SCC505 : [1985] SCR 287 – relied on.

Kashinath Shankarappa v. The New Akot CottonGinning and Pressing Co. Ltd. AIR 1951 Nagpur 255– approved.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5397of 2010.

From the final Judgment dated 26.02.2007 of the High Court ofJudicature at Madras in O.S.A. No.193 of 2002 and O.S.A. No.178 of2003.

A.K. Ganguli, Sr. Adv., Ms. Barnali Basak, V. Ramasubramanian,M. Munusamy, Ms. L. Maheswari, Advs. for the Appellants.

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AK. Rama Moorthy, Sr. Adv., M. Yogesh Kanna, S. Partha Sarathi,S. Raja Rajeshwaran, Pushkin Rajkumar, Advs. for the Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.BIntroduction

1. In this appeal by special leave, the plaintiff-appellant, said to bea partnership firm, has called in question the common judgment anddecree dated 26.02.2007 in O.S.A. Nos. 193 of 2002 and 178 of 2003(with C.M.P. No. 8947 of 2006) whereby, the Division Bench of HighCCourt of Judicature at Madras, while allowing the appeal filed by thedefendant-State and while dismissing the appeal filed by the plaintiff-appellant, has reversed the judgment and decree dated 15.10.2001, aspassed by the learned Single Judge in C.S. No. 561 of 1998; and hasdismissed the appellant’s suit for recovery of damages.

D1.1. This matter, arising out of the aforesaid suit for recovery ofdamages, carries a peculiar and chequered history of its own, withassortment of several undisputed actual facts, a few disputed facts, andvaried rounds of litigations. In a brief outline of the subject matter, it maybe noticed that the plaintiff-appellant had allegedly taken certain parcelsof land[1] on lease (initially for a period of 5 years in the years 1971-1972Eand later, for a period of 25 years in the years 1977-1978) from its ownerSri Nanamamalai Jeer Mutt, Nanguneri[2]for plantation and co-relatedpurposes. The case of the plaintiff-appellant has been that by virtue of anotification dated 06.03.1976, as issued by the Government of TamilNadu, the land in question was proposed to be included in a wild lifesanctuary under the Wild Life (Protection) Act, 1972[3] and severalFpropositions for award of compensation were actively considered by theauthorities concerned, who were also under the mandate of the HighCourt to finalise the award of compensation at the earliest. The grievanceof the plaintiff-appellant has been that on one hand, the land in questionwas not allowed to be used because of the proposal for its acquisitionG

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1 Comprising field Nos. 805/1, 805/3, 805/4, 806, 807,808 & 809 in Kalakkadu Villageand field No. 495 in Malayadipudur Village (Nanguneri Taluk, Tirunelveli District), inall admeasuring 197.36 acres - Hereinafter referred to as ‘the land in question’ or ‘thesubject land’.

2 Hereinafter referred to as ‘the Mutt’.

3 Hereinafter referred to as ‘the Act’ or ‘the Act of 1972’.

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M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

for wild life sanctuary and on the other hand, no amount of compensationwas paid; and then, the defendant-respondent chose to exclude the landin question from the limits of the said wild life sanctuary by way of anorder issued on 19.11.1993. The plaintiff-appellant and the Muttchallenged the said order dated 19.11.1993 in the High Court by way ofa writ petition. On 13.09.1995, a learned Single Judge of the High Courtallowed the writ petition so filed by the appellant and the Mutt but theDivision Bench, in its judgment and order dated 18.09.1997, set asidethe order so passed by the Single Judge and dismissed the writ petitionwhile upholding the powers of the State Government to withdraw fromthe notification in question. The Division Bench, however, left it open forthe writ petitioners ‘to take appropriate civil action for quantifyingtheir damages’; and also observed that for the purpose of such an action,it was open for the writ petitioners ‘to rely on the provisions of theLimitation Act for excluding the period during which they had beenprosecuting the matter in this Court’. Thereafter, the plaintiff-appellantinstituted the civil suit in question against the defendant-respondent,seeking recovery of damages to the tune to Rs. 1,31,95,000/- togetherwith interest @ 18% per annum, for having been allegedly deprived ofthe use of the land in question on the proposition for acquisition. A learnedSingle Judge of the High Court, by way of the judgement and decreedated 15.10.2001, partly decreed the suit, holding the plaintiff entitled toa sum of Rs. 86,88,000/- together with interest @ 9% per annum fromthe date of suit until realisation. However, in the appeal preferred by thedefendant-State, the Division Bench of the High Court found no casefor award of any damages to the plaintiff and, by its impugned judgmentand decree dated 26.02.2007, reversed the decree of the learned SingleJudge and dismissed the suit. Hence, the plaintiff-appellant has preferredthis appeal.

The relevant background and factual matrix

2. The relevant background and factual aspects of the mattercould be briefly summarised as follows:- 2.1. The appellant, a partnership firm, had taken the land in question,admeasuring 197.36 acres, on lease from its owner, the Mutt, for thepurpose of cultivating commercial crops such as tea, coffee andcardamom over 80 acres of the total available land. The appellant hasalleged that the land in question was given on lease on 15.11.1971 but

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Athe registered lease deed in that regard was executed by the Mutt on01.07.1972, for a period of 5 years i.e., from 01.07.1972 to 30.06.1977.

2.2. By G.O.Ms. No. 183 dated 06.03.1976, issued under Section18(1) of the Act of 1972, the Government of Tamil Nadu stated its approvalof the proposal of Chief Conservator of Forests to notify KalakkaduBReserve Forest in Tirunelveli District as a sanctuary for the protectionand development of wild life therein. This allegedly included the aforesaid197.36 acres of land leased to the appellant.

2.3. On 23.03.1975 and on 17.09.1976, the appellant applied forclear felling of trees in 10 acres of land out of the said 197.36 acres butCexcluding the 80 acres already under plantation. However, the DistrictCollector, by his communication dated 16.11.1976, refused to grant sucha permission to the appellant on the grounds that the land in questionwas demarcated under the said notification for the purpose of wild lifesanctuary; and felling of trees may affect the soil conservation andmoisture conservation measures in the locality.D

2.4. Thereafter, on 14.07.1977, the District Collector issued aproclamation under Section 21 of the Act of 1972 specifying the limits ofthe sanctuary and requiring any person having any right to file the claimin Form No. 8 under the Wild Life Protection (Tamil Nadu) Rules, 1975[4].The appellant would submit that the land in question was not included inEthis proclamation dated 14.07.1977.

2.5. The appellant would further submit that when the land inquestion was not included in this proclamation dated 14.07.1977 and thelease period under the aforesaid lease deed dated 01.07.1972 had expiredon 30.06.1977, the Mutt was requested to execute a long-term lease inFfavour of the appellant for developing the plantation in a better manner.According to the appellant, on 20.03.1978, the Mutt granted a freshlong-term lease of the land in question in its favour for a period of 25years (from 01.07.1977 to 30.06.2002) after obtaining permission of theCommissioner, Hindu Religious and Charitable Endowments and afterGconsultation with the District Collector. We shall refer to the questionrelating to the alleged permission of the said Commissioner hereafter alittle later.

2.6. Continuing with the factual matrix, it is noticed that on28.08.1978, the Collector issued another proclamation under Section 21

H4 Hereinafter referred to as ‘the Rules of 1975’

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

calling upon the persons claiming any right in or over the land coveredthereunder to prefer a written claim within two months under the Rulesof 1975. On 31.08.1978, the Collector issued the same proclamation inTamil language, while also stating that the earlier notification dated14.07.1977 was cancelled. According to the appellant, the land in questioncame to be included within the proposed sanctuary only under thesenotifications issued in the year 1978.

2.7. After the notifications aforesaid, various proceedings andexchange of communications took place where on one hand, the appellantand the Mutt made several attempts to get the subject land excludedfrom the proposed sanctuary and on the other hand, on 24.06.1984, theappellant filed a written statement in the award inquiry along with theclaim in Form No. 8 under the Rules of 1975, claiming compensation tothe tune of Rs. 41,36,866/-. The authorities concerned also exchangedvarious inter-departmental communications for the purpose of assessmentof the amount of compensation. All these proceedings andcommunications need not be elaborated herein but it may be noticed thaton 01.08.1985, the Collector rejected an application filed by the appellantfor registration of Cardamom Estate in the land in question on the groundthat the land was to be acquired for the purpose of setting up of the wildlife sanctuary. Thereafter, on 23.03.1990, the Collector addressed acommunication to the Special Commissioner and the Commissioner ofLand Administration that the compensation together with solatiumand interest for the land belonging to the Mutt was estimated atRs. 72,98,661/-. On 03.12.1990, the said Special Commissioner reducedthe total estimated compensation to Rs. 65,06,453/- and requested theGovernment to pass appropriate order as regards the application of therelevant provisions of the Land Acquisition Act, 1894[5] to the presentcase. Further to this, on 05.03.1991, the Principal Chief Conservator ofForests informed the concerned Secretary to the Government about theexpected liability of interest in relation to the award to be made in relationto the land in question.

2.8. While the proceedings aforesaid remained pending but noaward had been made, the Mutt chose to challenge the proposal foracquisition of the land in question by way of a writ petition (W.P. No.685 of 1991) before the High Court. The present appellant was arrayed

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Aas the fourth respondent in that writ petition. The respondent-State statedin its counter affidavit in the said writ petition, inter alia, that ‘the StateGovernment had applied their mind to the requirement of makingpublication under Section 18 of the said Act and found it was validand had effected the publication in question under Section 18 ofthe Central Act 53 of 1972’; and that it was ‘not possible to excludeBthe lands of the petitioner from the limits of the Sanctuary. It willdefeat the very purpose of creating the Sanctuary’.

2.9. The said writ petition filed by the Mutt was, however, dismissedby a learned Single Judge of the High Court on 13.07.1991, inter alia,with the observations that Section 11-A of the Act of 1894 did not applyCto the proceedings in question and that if an illusory compensation wasawarded, the writ petitioner shall have the right to challenge the same.The Mutt also preferred an intra-court appeal but, on 20.01.1992, thesame was dismissed as withdrawn by the Division Bench with the directionto the Collector to expedite the proceedings for making the award ofDcompensation.

2.10. Thereafter, on 09.03.1992, a fresh notice for award inquirywas issued by the Collector under Sections 9(3) and 10 of the Act of1894. In response, the Mutt sent a letter claiming compensation to thetune of Rs. 92,81,346/-. On the other hand, it appears from the submissionsEmade that on 30.03.1992, the appellant filed the statement claimingcompensation to the tune of Rs. 1,09,60,000/- for the market value ofcoffee, cardamom and tea plantations; Rs.96,00,000/- towards anticipateddevelopment of cardamom; and another Rs. 96,400/- towards the costof the building constructed. The appellant also claimed 30% solatiumand 12% p.a. interest from the date of notification until the date of awardFand 15% p.a. future interest on the total amount of compensation.

2.11. On 16.04.1992, the award proceedings were completed anda draft award was forwarded by the District Revenue Officer to theSpecial Commissioner. However, since the respondent did not take furthersteps for making the award, another writ petition, being W.P. No. 6931Gof 1993, was preferred, jointly by the Mutt and the appellant, seekingdirections for early making of the award. This writ petition was disposedof by a learned Single Judge of the High Court on 11.08.1993 with directions for making the award within four weeks from the date ofreceipt of the order[6].

2.12. After passing of the aforesaid order dated 11.08.1993, whenthe matter was being processed by the authorities concerned, the ChiefConservator of Forests (WL) and Chief Wildlife Warden, suggested on25.08.1993 that the proposed acquisition of the land in question may bedropped in view of the huge cost involved and acquisition of the land inquestion being not necessary. With reference to these facts, an applicationwas moved on behalf of the respondent before the High Court on21.09.1993, seeking six weeks’ further time to enable the Commissioner,Land Administration to issue suitable directions to the Collector. It appearsthat on such an application, the High Court, by its order dated 26.10.1993,extended the time for making the award.

2.13. Thereafter, on 19.11.1993, the Collector, Tirunelveli, in thepurported invocation of the powers under clause (a) of sub-section (2)of Section 24 of the Act of 1972, excluded the land in question from thelimits of the wild life sanctuary. This order had the effect of releasingthe land in question from the proposed acquisition and thereby, obviatingthe necessity of making the award of compensation.

2.14. The aforesaid order dated 19.11.1993, as issued by theCollector, Tirunelveli, had been the bone of contention in this matter.According to the appellant, the Collector having earlier taken the decisionto acquire the land in question, compensation was required to be paid;and the authorities passed on dictates to the Collector to issue the saidorder dated 19.11.1993 only in order to circumvent the order passed bythe High Court. The appellant has particularly referred to the letter dated12.11.1993 by the Deputy Secretary, Forest Department to the SpecialCommissioner, wherein it was stated that the proposed wild life sanctuarycould not meet the exorbitant cost of land acquisition and this acquisition 6 The learned Single Judge directed in the order dated 11.08.1993 thus:

“Hence I direct the competent authority, viz., Special Commissioner andCommissioner for Land Administration to take into consideration the valuationproposals sent in Collector’s Office reference K2/1498/83 dated 20.6.1990 and12.9.1990, and approved by the Special Administration and due representationsof the 2[nd] petitioner dated 10.7.92 and the representations of the 1[st] petitionerdated 19.10.1992 and further representations of the 1[st] petitioners, if any, andthe proposal of the District Collector Tirunelveli, the 2[nd] respondent herein andpass appropriate orders within four weeks from the date of receipt of this orderfrom the Court.”

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Awas not required on priority. It is submitted that pursuant to thiscommunication dated 12.11.1993, the Special Commissioner sent theletter dated 17.11.1993 to the Collector, Tirunelveli to exclude the land inquestion from the limits of the proposed sanctuary under clause (a) ofsub-section (2) of Section 24 of the Act of 1972; and thus the Collectorissued the questioned order dated 19.11.1993.B

2.15. The said order dated 19.11.1993 was challenged jointly bythe Mutt and the appellant by way of a writ petition in the High Court,being W.P. No. 21721 of 1993. The present appellant also filed a contemptpetition (No. 340 of 1994) complaining of disobedience of the ordersearlier passed by the High Court. On 13.09.1995, a learned Single JudgeCof the High Court allowed the writ petition and quashed the said orderdated 19.11.1993; and also held the officers concerned guilty of contemptand imposed a fine of Rs. 1,000/- on each of them. However, the orderso passed by the learned Single Judge was questioned by the respondent-State by way of an intra-court appeal, being WA No. 1041 of 1995, thatDwas allowed by the Division Bench of the High Court by its judgmentdated 18.09.1997 but with several remarks and observations against therespondent-State and while leaving it open for the writ petitioners toapproach the civil Court for recovery of damages.

2.16. The observations made by the Division Bench in its judgmentEdated 18.09.1997 have formed the basis of the claim made by the appellantin the civil suit leading to this appeal. Having regard to the subject matterof this appeal and the questions involved, pertinent it would be to takenote of the observations and findings in the judgment dated 18.09.1997in the requisite details.

F2.16.1. In its judgment dated 18.09.1997, the Division Bench inthe first place observed that when the Collector had already taken thedecision to acquire the land in question and to pay compensation, therewas no occasion to exercise the power under clause (a) of sub-section(2) of Section 24 of the Act of 1972. The Division Bench also rejectedthe argument of the Government Pleader that withdrawal from theGproceeding could be sustained in terms of Section 48 of the Act of 1894.Nevertheless, the Division Bench was of the view that Section 21 of theGeneral Clauses Act, 1897[7] was applicable and could have been invokedby the Government. However, even in this regard, the Division Bench H7 Hereinafter referred to as ‘the General Clauses Act’.

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TO521GOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

observed that the entire action of the officers of the Government, rightfrom conceiving the project in question to the late stage backing out, hadbeen thoughtless, casual and perfunctory.

2.16.2. Even while making such remarks that the impugned actionshad been thoughtless and the Government must suffer the consequences,the Division Bench of the High Court observed that the appellant andthe Mutt had no right to insist on the Government to complete theacquisition proceedings and to proceed with the project as a sanctuary.After such remarks and observations, the Division Bench acknowledgedthe power of the Government to withdraw from the notification and torefuse an award under the Act of 1894. However, the Division Benchfurther proceeded to observe that the Mutt and the appellant had a validcase for claiming damages but in that regard, the damages sufferedshall have to be proved in the Court of law. It was, thus, left open for theMutt and the appellant to take appropriate civil action for quantifying thedamages. The Division Bench also left it open for them to seek exclusionof the period during which they had been prosecuting the matter in theHigh Court.[8]

2.16.3. With the aforementioned observations and findings, theDivision Bench of the High Court concluded that the decision of the

8 These observations of the Division Bench of the High Court had been as under: -20. We do not propose to say that the Government is blemishless. On theotherhand, the Government had acted thoughtlessly both at the stage of thenotification under section 18 and at the stage of withdrawal from the notification.The Government must suffer the consequences of their action, both issuingdeclaration under section 18 and in committing inordinate delay in passing theaward and ultimately withdrawing from the notification. But the damagessuffered by the respondents on account of the Government’s acts of commissionand omission has to be proved in a Court of law. The respondents have nodoubt, a valid case against the Government for their acts of commission andomission. The question is what is the actual remedy of the respondents. Themaxim ubi jus ibi remedium (where there is a right, there is a remedy), is nodoubt applicable on the facts of the present case. But, we are only pointing outthat the remedy of the respondents is elsewhere. They have no right to insist onthe Government completing the acquisition proceedings and proceeding withthe project as a sanctuary. On the facts and circumstances of the case, weconcede the power of the Government to withdraw from the notification andrefuse to pass an award under the Land Acquisition Act. We keep it open to therespondents to take appropriate civil action for quantifying their damages andfor this purpose, it is certainly open to them to rely on the provisions of theLimitation Act for excluding the period during which they had been prosecutingthe matter in this Court.”

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AGovernment to exclude the land in question from the limits of proposedsanctuary was sustainable by virtue of Section 21 of the General ClausesAct and, while allowing the appeal, proceeded to dismiss the writ petitionwhile leaving it open for the writ petitioners, including the presentappellant, to agitate their rights in the appropriate forum. In view of thisdecision, the contempt proceedings were dropped.[9]B

2.17. In order to complete the chronicle of background, it mayalso be noticed that the present appellant alone preferred a petition forSpecial Leave to Appeal before this Court against the said judgmentdated 18.09.1997, which was dismissed in limine on 23.02.1998.

C2.18. Only after conclusion of the aforesaid litigation with dismissalof the petition for Special Leave to Appeal by this Court on 23.02.1998that the appellant took up the action in civil Court for recovery of damages.

2.19. Before dilating on the facts and events relating to the actionfor recovery of damages, it would be apt to summarise the materialDfacts and features noticed in the preceding paragraphs. Put in a nut-shell, the sum and substance of the matter is that the land in question, 9 The Division Bench concluded on the matter as follows: - “23....We are construing the letter of the Government in Letter No. Ms. No. 377EDF dated 12.11.1993 and the consequential order of the Special Commissionerand Commissioner of Land Administration in R.O. C. No. h2/34854/92 datedE17.10.1993 as constituting the decision of the Government to withdraw from theinclusion of the lands of the respondents in the sanctuary, and the consequentialacquisition of the said lands. We are exercising our discretionary powers underarticle 226 of the Constitution of India in holding that in the above two letters, the Government had taken a categoricaldecision to withdraw from the notification and the consequential acquisition.Therefore, we do not propose to take the order of the Collector dated 19.11.1993Ffor any purpose, as it simply follows the directions of the Government. Since thenotification and declaration was issued by the State Government under section18 of the unamended Wild Life Protection Act, it is the government and thegovernment alone which can cancel

or modify the notification by invoking the power under section 21 of the GeneralClauses Act. It is in this view of the matter, we uphold the decision of theGovernment to exclude 197.36 acres of land, belonging to the respondents andGanother extent of 148.55 acres from the limits of the proposed sanctuary. asperfectly in order and within the powers of the Government. Consequently, theprayer sought for in W.P. No. 21721 of 1993 cannot be granted and the writpetition will stand dismissed. The appeal is allowed in the above manner, leaving it open to the respondents to agitate theirrights in an appropriate forum. Contempt appeal No. 6 of 1995 is also allowed.HThere will be no order as to costs.”

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

said to have been taken by the plaintiff-appellant on lease from the Mutt,was proposed to be included in the sanctuary for wild life by virtue ofthe notification dated 06.03.1976; and the attempts on the part of theMutt and the appellant to get the land in question excluded from thesanctuary did not meet with success. Though the matter relating to theaward of compensation for acquisition of the subject land was consideredby the authorities concerned, who were also directed by the High Courtto finalise the award at the earliest but, instead of making any award, theCollector issued the order dated 19.11.1993, excluding the land in questionfrom the limits of wild life sanctuary. The Mutt and the appellant nowfelt aggrieved of the proposition for such exclusion of the subject landfrom the limits of the wild life sanctuary and again approached the HighCourt by way of writ petition against the said order dated 19.11.1993.On 13.09.1995, a learned Single Judge of the High Court allowed thewrit petition so filed by the Mutt and the appellant. However, the DivisionBench of the High Court, in its judgment dated 18.09.1997, did not approveof the order so passed by the learned Single Judge and dismissed thewrit petition while leaving it open for the Mutt and the appellant toapproach the appropriate forum in their claim for damages.

Civil suit for recovery of damages

3. Though having failed in its attempt to get the aforesaid orderdated 19.11.1993 annulled but, with reference to the observations madeand the liberty granted by the Division Bench of the High Court in itsjudgment dated 18.09.1997, the appellant took up the action for claimingdamages from the respondent-State. In this regard, the appellant serveda notice under Section 80 of the Code of Civil Procedure on 01.03.1998that did not evoke any response. Hence, the appellant instituted the civilsuit for recovery of damages on 08.06.1998. The civil suit was foundedon the facts referred hereinabove and on the grounds that from the firstday of the proceedings starting in the year 1976 and until dropping of thesame in the year 1993, the appellant was debarred from utilising the landin question; and that due to pendency of litigation in the High Court fromthe year 1993 and until 18.09.1997, the appellant could not file the suitfor damages. It was also submitted that in view of the rights specified,and the liberty given, by the Division Bench of High Court, the suit wasmaintainable and was not barred by limitation.

3.1. As regards the measure and quantum of damages, theappellant referred to the alleged loss of earnings @ Rs. 2.31 lakhs per

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Aannum on the basis of valuation worked out in the award inquiry for thevery same land. The appellant also claimed interest at the rate of 18%per annum and yet further claimed the cost of re-plantation and rearingoperations as also the loss of profit for a period of 3 years that was likelyto be taken for the crops to yield the fruits. The appellant claimed thetotal loss of earning for 22 years from 06.03.1976 and other componentsBof loss as follows: - Rs.

“(a) Total on loss for 22 years(Rs.2.31 lacs xx 22 years)50.82 lakhs C(b)Interest on loss of income for22 years70.13 lakhs

(c) Cost of replantation and rearingoperations for 3 years @ Rs.5000/-per acre for 75.52 acres (restricted to) 7.00 lakhsD

(d) Repairs to Factory/Office and LabourSheds to make it fit for use(restricted to)1.00 lakhs (e)Loss of Revenue for three years(Rs.2.00 lakhs x 3 years)E(the period that would be taken forre-planting the rearing plantationand to put them to yield)(restricted to)3.00 lakhs F

Total

4. In the written statement, it was contended on behalf of thedefendant-respondent that the plaintiff was not entitled to claim anydamages; that there was no agreement between the plaintiff and thedefendant; and the defendant did not cause any loss to the plaintiff. ItGwas alleged that no private land was included in the notification underSection 18(1) of the Act of 1972 but Form No. 8 was filed by the appellantclaiming compensation and thereby, voluntarily offering the private landfor acquisition. It was alleged that subsequent to the offer so made, aproposal was sent to acquire the private property lying within the proposedsanctuary area but the proposal was dropped as the expenditure to theH

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

Government was an exorbitant one. It was also contended that in theabsence of any express acceptance from the defendant to acquire theland, there was no completed contract between the plaintiff and thedefendant; and when by way of the said letter dated 17.11.1993, theCollector, Tirunelveli was requested to drop the proposal of acquiringthe private land and the Collector indeed dropped the proposed action,there was no actual acquisition of the land in question.

4.1. It was also contended by the defendant-respondent that theaction of the Government in dropping the proposal to acquire did notaffect the status of the land in question; that the claim of the plaintiffthat he could not realize anything from the lands was not correct; andthat the notification for proposed sanctuary could not have affected thepossession and enjoyment of the land by the plaintiff. It was assertedthat the subject land was never taken over or controlled by the ForestDepartment and neither the owner nor the lessee was prevented fromenjoyment of the property, who remained in actual possession andenjoyment thereof. It was yet further submitted that even if the subjectland was assumed to be under the control of Forest Department, theplaintiff had no right or claim against the defendant for the reason thatthe plaintiff was only a lessee of the Mutt and there was no privity ofcontract between the plaintiff and the defendant. The defendant-respondent submitted that the land owner had not come forward withany claim since there was no loss caused to them; and the plaintiff, ifhaving any right under the law, was required to seek his remedy onlywith the lessor and not against the defendant.

4.2. The defendant-respondent also submitted that even if theland in question was notified, the cause of action, in any case, accrued tothe plaintiff on 19.11.1993 and, therefore, the suit for damages was barredby limitation. The defendant further submitted that the Division Bench,while allowing the writ appeal (by its judgment dated 18.09.1997), thoughhad kept it open to the plaintiff to rely on the provisions of the LimitationAct, 1963[10] for excluding the period during which the matter was pendingin the Court but, the Limitation Act was of no assistance to the plaintiffinasmuch as what was being prosecuted earlier was a challenge to theproposal of acquisition and then for compensation for the alleged take-over of the land in question whereas, what was being prosecuted in thesuit was the claim for damages for the alleged loss of earnings from 10 Hereinafter referred to as ‘the Limitation Act’.

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A06.03.1976. The defendant also raised the objections of want of territorialjurisdiction and non-joinder of necessary parties.

5. On the pleadings of parties, the Trial Court framed the followingissues for trial:- “1. Whether this court has territorial jurisdiction to try thisBsuit?

2. Whether the suit is barred by limitation?

3. Whether the suit is bad for non-joinder of necessaryparties?

C4.Whether the suit land was notified as forming part of theWildlife Sanctuary?

5. Whether the plaintiff is entitled to damages and if so whatamount?

6. Whether the plaintiff is entitled to interest?

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7. Whether there is any privity of contract between the partiesto claim compensation?

8. To what relief?”

6. It appears that in the trial, partner of the plaintiff was examinedEas PW-1 and the documents Exhibits P-1 to P-42 were marked throughhim. The defendant did not adduce any oral or documentary evidence.

The Single Judge decreed the suit

7. After having heard the parties, the learned Single Judge ofFHigh Court, dealing with original suit, proceeded to determine the issuesby way of the judgment dated 15.10.2001.

7.1. The learned Single Judge rejected the objections relating tothe territorial jurisdiction and non-joinder of necessary parties and decidedissue Nos. 1 and 3 in favour of the plaintiff. As regards issue No. 2relating to limitation, the learned Judge referred to the observations ofGthe Division Bench in the judgment dated 18.09.1997 and to thecontentions of the parties and then, observed that he would disagreewith the defendant and had no hesitation in holding that the suit was filedwithin time. Hence, issue No. 2 was also decided in favour of the plaintiff.

7.2. The learned Single Judge, thereafter, took up issue Nos. 4Hand 5 together for determination and, in this regard, referred to the past

Procedure

proceedings commencing from the notification dated 06.03.1976 andvarious propositions for assessment of the amount of compensation forthe proposed acquisition. The learned Judge extensively referred to therival contentions and to a few documents, including the letter dated28.05.1987 (Ex. P-17) by the Collector, Tirunelveli to the Deputy Secretaryto the Government stating that the land in question was developed from1972 to 1978 and cultivated with plantation crops but after the area wasdeclared as wild life sanctuary, normal plantation was not allowed due tothe land acquisition proposals. The learned Judge also referred to theletter dated 23.03.1990 (Ex. P-21) by the Collector, Tirunelveli to theSpecial Commissioner and to the proceedings dated 03.12.1990 (Ex. P-22) of the Special Commissioner which were carried out for the purposeof assessment of the amount of compensation. Ultimately, the learnedJudge accepted the submissions of the plaintiff that loss of earnings wascalculated by the officers concerned at the rate of Rs. 2.31 lakhs perannum; and held the plaintiff entitled to this amount for 22 years i.e., asum of Rs. 50.82 lakhs. The learned Judge though rejected the otherclaims of the plaintiff but allowed another sum of Rs. 1 lakh towardsrepairs of factory office. In this manner, the plaintiff-appellant was heldentitled to the total sum of Rs. 51.82 lakhs towards damages. On issueNo. 6, the learned Judge awarded another sum of Rs. 35.06 lakhs beinginterest @ 6% p.a. from 06.03.1976 to 18.09.1997 and also held theplaintiff entitled to the interest @ 9% p.a. from the date of filing untilrealisation. Issue No. 7 was separately decided in favour of the plaintiffin view of the findings on issue Nos. 4 and 5.

The Division Bench reversed the decree and dismissedthe suit

8. Being aggrieved by the decree so passed by the learned SingleJudge for damages and interest, the defendant-respondent preferred anappeal, being OSA No. 193 of 2002, before the Division Bench of theHigh Court. On the other hand, the plaintiff-appellant also felt aggrievedby the part of decree of the learned Single Judge insofar as its claim wasnot accepted and preferred another appeal, being OSA No. 178 of 2003.Both these appeals and interlocutory application therein, being C.M.P.No. 8947 of 2006, were considered and decided together by the DivisionBench in its impugned judgment and decree dated 26.02.2007.

8.1. The Division Bench of the High Court took note of all therelevant background aspects (as noticed hereinbefore) and the rival

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Acontentions and thereafter analysed the matter with reference to thelaw applicable. In this regard, the Division Bench in the first placeextracted in extenso the relevant provisions of the Act of 1972 andexamined two core questions: (1) as to whether the appellant could haveacquired any right qua the land in question on the basis of the allegedsecond lease for 25 years after issuance of the notification under SectionB18(1) of the Act; and (2) if the appellant at all had any right in the land inquestion, as to whether the same had been infringed in the manner thatit may give any cause to claim damages. The Division Bench also referredto the evidence adduced on record and answered the material questionsagainst the plaintiff-appellant, inter alia, in the following:- C

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“21. In the present case, the facts which have been hithertoculled out, indicate that initially there was a declaration of asanctuary under Section 18(1) of the Act, but the process ofacquisition was aborted. Section 20 contemplates that afterissuance of such notification under Section 18, “... no rightDshall be acquired in, on or over the land comprised withinthe limits of the area specified in such notification, except bysuccession”. As already analysed the provisions indicate thatmere issue of notification under Section 18 does not debarthe owner of any property in exercising his normal rights andsimilarly such right can be exercised by his heir. The embargoEenvisaged under Section 20 is relating to inter vivos transferof any right in or over the land comprised within the area.Therefore, the plaintiff as an existing lessee for five yearsand the original owner were as such not debarred fromexercising any right. However, it is apparent from the admittedFfacts that the subsequent lease for 25 years was executed infavour of the plaintiff after issuance of notification underSection 18. Since the plaintiff claims right on the basis ofsubsequent lease for 25 years, which was admittedly executedby the original owner after notification under Section 18, itis doubtful whether the plaintiff had acquired any right atGthat time, at least against the State. At any rate, even assumingthat the plaintiff had any right as a lessee, there was nostatutory embargo debarring the plaintiff from exercising hisrights.

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M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

24. In the present case, there is nothing on record to indicatethat in respect of the area claimed, the plaintiff and theoriginal owner had ever been dispossessed and preventedfrom exercising any right, save and except the refusal to grantpermission for felling the trees way back in 1976. It is ofcourse true that there are several correspondence on recordwhich indicate that for ascertaining the compensation, theCollector and other authorities were asking for allotment ofhigher amount for the purpose of finalising the compensationand award, but, there is no material on record to indicate thatthe award proceedings, so far as the plaintiff and the landowner are concerned, had ever been finalised.

25. It is of course true that the letter Ex.P-17 dated 28.5.1987written by the Collector to the Deputy Secretary to theGovernment recited that the lands of the plaintiff were declaredas wild life sanctuary and its development activities had beenstopped. However, this communication between twofunctionaries of the Government should not be construed asdenying the original owner or the plaintiff any particularright. There is nothing on record to indicate that because ofvarious steps taken under the Act, the original owner and theplaintiff were prevented from going inside the forest and fromcollecting the usufructs. If under any misunderstandingrelating to scope of the notifications and declarations alreadyissued the plaintiff stopped its activities, it was the plaintiff’sown misfortune and it cannot be said that the plaintiff wasprevented in any unlawful manner by the State in exercisingits lawful right. Merely because various correspondenceindicate that the lands were covered under notification issuedunder Section 18, it cannot be said that the original ownerand the plaintiff had been deprived. The only direct documentrelating to refusal to grant clear fell trees within 10 acres hasalready been analysed and that factor does not give rise to acause of action for claiming an astronomical sum as claimedby the plaintiff. Since the plaintiff was not allowed to fell thetrees, it can be well concluded that the trees are still availableto be exploited after the area was excluded. However, fromthe above document alone, which was inter-departmental AB

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communication made in the year 1987, it cannot be construedthat the original owner and the plaintiff had in fact beenprevented from exercising its rights.

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27. Ex.P-14 relates to the prayer for clear felling trees in 10acres. That cannot form basis for claiming loss at the rate ofRs.2,31,000/- per annum for 22 years. In the various writpetitions and the writ appeals, which had been filed, we donot find any allegation that at any point of time the originalowner and the plaintiff had been prevented from exercisingtheir normal rights. We fail to understand as to why theplaintiff should be paid compensation by way of damagesunless there is any unlawful act on the part of the defendant.Merely because the plaintiff misunderstood the scope ofdeclaration under Section 18 of the Act or the fact that someenquiries were pending, is not a ground to award damages.”

8.2. The Division Bench of the High Court also examined thepurport and effect of the previous judgment dated 18.09.1997 andpointed out that the observations therein did not mean that the rightsand liabilities of the parties had been decided and only quantification ofthe amount of damages was to be made. The Division Bench held, inthe following, that the plaintiff-appellant, having failed to plead andprove the specific case of unlawful activity on the part of the State orits officials, was not entitled to recover any amount as damages:- “28. It is no doubt true that in the Division Bench decision,while deciding the writ appeal in favour of the Government,certain observations have been made indicating that it is opento the aggrieved party to seek for adequate compensation.Such observations cannot, however, construed to mean thatrights and liabilities of the parties had been decided and onlyquantification is to be made. On the other hand, it was onlymade clear that even though the Government cannot be forcedto acquire the land for the purpose of sanctuary, it was opento the aggrieved party to pursue his remedy obviously inaccordance with law. If the person sustains any injury onaccount of any unlawful activity of the State or any of itsofficial, it was for the plaintiff to clearly allege and prove M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

such unlawful activity in order to claim any compensation byway of damages. Obviously the plaintiff does not have rightto receive any compensation as envisaged under the Act. Ifhe has to receive any amount on account of any unlawfulactivity on the part of the State or its official, a specific casehas to be made out. In our considered opinion, in the presentcase, no such specific case has been pleaded, far less proved.”

8.3. Next, the Division Bench of the High Court referred to thequestion of limitation and, while referring to Section 14 of the LimitationAct, indicated its prima facie doubt if the period during which the litigationremained pending in the High Court could be excluded but left the matterat that, essentially for the reason that the claim of the plaintiff had beenrejected on merits. The Division Bench observed:- “29…. Now the plaintiff is claiming damages on account ofthe fact that the area has been excluded from the sanctuaryand thereby it has sustained damages, obviously the cause ofaction arose on that date i.e., 19.11.1993. The writ petition,which was filed was for quashing such order, was obviouslyfor a different relief. The writ petition was dismissed on meritand not for want of jurisdiction. Prima facie we have doubtas to whether the period during which such litigationsremained pending in the High Court can be excluded underSection 14 of the Limitation Act. However, since we havenegatived the claim of the plaintiff on merits, it is not necessaryto delve further into such question.”

8.4. Lastly, the Division Bench also rejected the claim of theplaintiff for interest and set aside the findings of learned Single Judge onissue No. 6.

8.5. In view of its findings on the relevant issues, the DivisionBench of the High Court allowed the appeal filed by the State anddismissed the appeal filed by the plaintiff. Accordingly, the suit filed bythe plaintiff-appellant was dismissed. Hence, this appeal.

Rival contentions:

9. Assailing the impugned judgment dated 26.02.2007, the learnedsenior counsel for the appellant has painstakingly taken us through allthe background aspects of the matter and the relevant provisions of the

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AAct of 1972; and has strenuously contended that the Division Bench ofthe High Court has erred in law as also on facts in reversing the considereddecision of the learned Single Judge and in dismissing the suit filed bythe appellant. The learned senior counsel has referred to the jurisprudentialconcepts of ownership and property; and has contended that the leasehold rights on the subject land and plantations thereon had been theBvaluable property of the appellant; and deprivation of the usufruct of thesubject land had been in direct violation of the appellant’s right to propertyfor which, the appellant is entitled to claim damages. The learned counselhas particularly referred to the letter dated 28.05.1987 by the Collectorto the Deputy Secretary to the Government in Forest and FisheriesCDepartment stating and acknowledging the facts that the land wasdeveloped by the appellant from the years 1972 to 1978; and the appellantwas not allowed to continue with his work on the land in question afterdeclaration of the area as wild life sanctuary due to the land acquisitionproposal. The learned counsel has contended that there being clearadmission of the fact that the appellant was indeed deprived of using theDland in question and there being no evidence to the contrary, the learnedSingle Judge had rightly proceeded on such an admission of the defendant.The learned counsel has relied upon the decisions in Thiru John v.Returning Officer & Ors.: (1977) 3 SCC 540, Sushil Kumar v.Rakesh Kumar: (2003) 8 SCC 673, and Standard Chartered BankEv. Andhra Bank Financial Services Ltd. & Ors.: (2006) 6 SCC 94to submit that the admission being the best evidence against the defendant,the suit was rightly decreed and the Division Bench has erred in reversingthe decree so passed.

9.1. The learned senior counsel has further contended that in terms Fof the unamended provisions of the Act of 1972, once a land was notifiedunder Section 18, even the land owner was prevented from using theland and he was required to wait until conclusion of the proceedings.The restrictions until the pendency of the proceedings, according to thelearned counsel, had resulted in direct violation of the appellant’s right touse his property; and in this case, where the subject land wasGunnecessarily sought to be acquired and then, to avoid compensation,the same was excluded after more than two decades, the appellant isentitled to claim damages for the loss suffered during all this time whenthe land could not be put to the requisite use. The learned counsel wouldsubmit that the State Government itself had admitted that the annualHyield for the land in question could not be assessed as the appellant was prevented from carrying on any plantation activities and, therefore, theobservations of the learned Single Judge, that the appellant was debarredfrom exercising his rights, were not incorrect and the damages towardsthe loss suffered by the appellant had rightly been allowed. Thus, accordingto the learned counsel, the impugned judgment deserves to be set asideand that of the learned Single Judge deserves to be restored. In supportof these contentions, the learned counsel has relied upon several decisions,including that in Union of India v. Hari Krishan Khosla (Dead) byLRs: (1993) Supp (2) SCC 149, which need not be dilated upon, forthe reasons occurring infra.

9.2. As regards the quantum of damages, the learned senior counselhas argued that when the appellant has suffered huge loss for havingbeen deprived of using the land in question and prevented from takingthe usufruct, the quantum of damages had rightly been assessed on thebasis of the loss of earnings assessed by the officers of the respondent-State during the award inquiry; rather the assessment had been on thelower side, looking to the loss and deprivation suffered by the appellant.

9.3. The learned counsel has also referred to the contentions soughtto be urged on behalf of the defendant-respondent with reference toSection 60 of the Act of 1972 and has contended that such a plea wasneither taken in the written statement nor any issue was framed in thatregard nor any such contention was urged before the Single Judge andhence, the respondent cannot take such a plea at the later stage. Withoutprejudice to these submissions, the learned counsel has also contendedthat the principles of the decision of this Court in Kasturi Lal v. State ofU.P.: AIR 1965 SC 1039 are not of investing the State with a blanketor absolute immunity in relation to the tortious act of its officers; and hasparticularly referred to the decisions in N. Nagendra Rao & Co. v.State of A.P.: (1994) 6 SCC 205 and Union of India v. SanchetiFood Products Ltd.: (2015) 15 SCC 447.

9.4. The learned senior counsel has also submitted that the suitfiled by the appellant was well within time and could not have beendismissed on the ground of limitation. The learned counsel has referredto the observations made and liberty granted by the Division Bench in itsprevious judgment dated 18.09.1997. According to the learned counsel,in this case, where the appellant was earlier prosecuting the matter inthe writ petition against the Collector’s order dated 19.11.1993 and infact, the learned Single Judge had allowed the writ petition and quashed

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Athe said order of exclusion of the subject land from sanctuary, the saidorder ceased to be in existence and got resurrected only after the DivisionBench’s judgment dated 18.09.1997. In this view of the matter and inview of Section 14 of the Limitation Act, according to the learned counsel,the time spent in prosecuting the said writ matter is required to be excluded;and, therefore, the suit instituted on 08.06.1998 is not barred by limitation.BThe learned counsel has referred to the decisions in Rameshwar Lal v.Municipal Council, Tonk & Ors.: (1996) 6 SCC 100 and Union ofIndia v. Shring Construction Co. (P) Ltd.: (2006) 8 SCC 18. Thelearned counsel has also submitted that the suit having been institutedwithin one year from the date of decision by the Division Bench, theCrequirement of Article 72 of the Limitation Act is satisfied. Further, withreference to the decision in State of A.P. v. Challa Ramkrishna Reddy& Ors.: (2000) 5 SCC 712, the learned counsel has argued that theaction of the authority concerned being not bona fide, the limitation ofthree years as per Article 113 of the Limitation Act would apply. According to the learned counsel, viewed from any angle, the suit is well withinDlimitation.

10. Per contra, the learned senior counsel for the respondent-State has argued that the appellant is not entitled to make any claim fordamages when the land in question was not acquired by the Government.The learned counsel has contended that the land in question belonged toEthe Mutt, and if at all the same was leased to the appellant, the onlyremedy available to the appellant was against the Mutt and not the Stateas there was no privity of contract between the State and the appellant.The learned senior counsel has also raised the contention that in termsof Section 34 of the Tamil Nadu Hindu Religious and CharitableFEndowments Act, 1959[11], the alleged lease for a term of 25 years wasnull and void because such a lease could not have been made unlesssanctioned by the authority concerned; and, in this regard, only a cursorystatement was made by PW1 of having obtained permission but nodocumentary proof of the requisite sanction was adduced.

G10.1. The learned counsel has also contended that with the Stateand its officers having exercised their powers under the statute i.e., theAct of 1972 in a legal manner, the suit for damages was not maintainablein view of the provisions of Section 60 of the Act of 1972. The learnedcounsel has also referred to the decision in Kasturi Lal’s case (supra)

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M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

and submitted that the land in question having been excluded from theproposed sanctuary on relevant considerations, including the interest ofpublic exchequer, the impugned action would not lead to any cause forclaiming damages. The learned counsel has further referred to thestatement of PW-1 in cross-examination that he was never dispossessedand has contended that there being no infringement of any of the legalrights, no case of claiming damages by the appellant is made out.

10.2. On the question of quantum of damages, the learned counselhas referred to the observations in the impugned judgment and submittedthat nothing of actual loss having been proved and the subject land havingbeen excluded from the sanctuary, the learned Single Judge had seriouslyerred in quantifying the damages with reference to the alleged loss ofearnings for 22 years without any reason or justification.

10.3. The learned counsel for the respondent has also strenuouslyargued that even if it be assumed that the cause of action accrued uponissuance of the exclusion order dated 19.11.1993, the suit in questionwas clearly barred by limitation. According to the learned counsel, Section14 of the Limitation Act would not come to the rescue of the appellantbecause the subject matter of the writ petition, which was filed jointly bythe Mutt and the appellant in challenge to the order dated 19.11.1993,was not the same as that of the present suit because no claim for damageswas made in the said writ petition. The requirements of Section 14 ofthe Limitation Act having not been satisfied, the learned counselcontended, the period of prosecuting the said writ petition cannot beexcluded and, therefore, the suit is required to be dismissed on the groundof limitation. The learned counsel has relied upon the decision in YeshwantDeorao v. Walchand Ramchand: AIR 1951 SC 16.

Preliminary Observations

Preliminary Observations

11. We have bestowed thoughtful consideration to the rivalsubmissions and have examined the record of the case with referenceto the law applicable. Having examined the matter in its totality, we areundoubtedly of the view that the suit filed by the plaintiff-appellant wasbarred by limitation and even otherwise, the plaintiff-appellant had nocase on merits to claim damages from the respondent-State. In otherwords, the Division Bench of the High Court has rightly allowed theappeal filed by the State and has rightly dismissed the baseless suit filedby the appellant. Hence, this appeal sans merit and deserves to bedismissed.

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A12. Before dilating on the questions relating to limitation andsustainability of the appellant’s claim for damages, we may observe thatthe contentions belatedly put forth on behalf of the defendant-respondent,as regards validity of the alleged second lease in favour of the appellanton the anvil of the Tamil Nadu Act of 1959 (as urged before this Court);and as regards immunity from any action as per Section 60 of the Act ofB1972 (as urged before the Division Bench of High Court) cannot be saidto be wholly without substance. We would hasten to observe that thecase of the appellant is not being rejected on these grounds for the reasonthat such contentions were not urged at the trial stage but, in the givenset of facts and circumstances, we feel rather impelled to make primaCfacie observations in regards to these aspects.

12.1. As per the case of the appellant, the second lease deeddated 20.03.1978 in relation to the land in question was executed in itsfavour by the Mutt for a period of 25 years. The self-explanatoryprovisions of Section 34 of the Tamil Nadu Act of 1959[12] declare anyDexchange, sale or mortgage and any lease, for a term exceeding 5 years,of any immoveable property belonging to any religious institution to benull and void unless sanctioned by the Commissioner as being necessaryor beneficial to the institution. The first proviso to the said Section 34 ofthe Tamil Nadu Act of 1959 also requires that before according sanction,the particulars relating to the proposed transaction shall be published,E

12 The relevant parts of Section 34 of the Tamil Nadu Act of 1959 read under: -“34. Alienation of immovable trust property.-(1) Any exchange, sale or mortgage and any lease for a term exceeding fiveyears of any immovable property, belonging to, or given or endowed for thepurposes of, any religious institution shall beFnull and void unless it is sanctioned by the Commissioner as being necessary orbeneficial to the institution:

Provided that before such sanction is accorded, the particulars relating to theproposed transaction shall be published in such manner as may be prescribed,inviting objections and suggestions with respect thereto; and all objections andsuggestions received from the trustee or other persons having interest shall beduly considered by the Commissioner:

GProvided further that the Commissioner shall not accord such sanction withoutthe previous approval of the Government.Explanation.- Any lease of the property above mentioned though for a term notexceeding five years shall, if it contains a provision for renewal for a furtherterm (so as to exceed five years in the aggregate), whether subject to anycondition or not, be deemed to be a lease for a period exceeding five years.*********”

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while inviting objections and suggestions; and all objections andsuggestions received from the trustee or any other persons having interestshall be considered. In the present case, a vague statement was madeby PW-1 that the permission of the department concerned was obtainedfor the second lease for which, the Collector had made therecommendation but then, neither any documentary proof of any suchpermission/sanction is adduced nor it is shown that the proposed sanctionwas duly published and the objections/suggestions were invited andconsidered. For want of necessary evidence on the validity of secondlease deed, prima facie it appears seriously questionable if the plaintiff-appellant had at all acquired any right in the land in question by virtue ofthe said lease deed, much less a right to claim damages from the State.Having regard to the circumstances of the case, we are leaving theaspect relating to the effect of Section 34 of Tamil Nadu Act of 1959 atthat only, essentially because we are satisfied that the said lease deedwas even otherwise impermissible and in any case, even on the basis ofthis questionable second lease, the plaintiff-appellant has no right to claimdamages.

12.2. Secondly, by virtue of Section 60 of the Act of 1972[13], nocivil suit in relation to any action taken in good faith under the Act of1972 is maintainable. Although, this aspect was not pleaded in specificterms on behalf of the defendant-respondent nor any issue in that regard was struck but, prima facie, we have reservations if any action of thepresent nature could have been maintained against the respondent-Statein the face of Section 60 of the Act of 1972. Be that as it may, asobserved, we are not finally pronouncing on these aspects and are leavingthe same at that.

13. Taking up the material points for determination in this case,though we are satisfied that the suit in question is liable to be dismissed 13 The relevant parts of Section 60 of the Act of 1972 read as under:-

60. Protection of action taken in good faith. - (1) No suit, prosecution or otherlegal proceeding shall lie against any officer or other employee of the CentralGovernment or the State Government for anything which is in good faith doneor intended to be done under this Act.

(2) No suit or other legal proceeding shall lie against the Central Governmentor the State Government or any of its officers or other employees, for anydamage caused or likely to be caused by anything which is in good faith done orintended to be done under this Act.

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Afor the bar of limitation but, for the reason that the learned Single Judgedecided this issue in favour of the appellant and the Division Bench leftit unanswered because of merit dismissal of the suit, it appears appropriateto discuss the question of limitation later and only after dilating on themerits of the claim for damages by the appellant.

BClaim for damages by the appellant – whether sustainable?

14. In order to determine the point as to whether the appellant’sclaim for damages is sustainable and the Division Bench of the HighCourt was not right in dismissing the suit, a few basic questions, relatingto the effect and operation of the relevant provisions of the Act of 1972Cconcerning the process of declaration of a sanctuary and acquisition ofland for that purpose need to be addressed to.

The relevant provisions of the Act of 1972

15. As regards the basic questions involved in this case, theprovisions contained in Chapter IV of the Act of 1972 having a directDbearing on the subject matter need to be taken in comprehension; andthe relevant amendments therein also need to be noticed. Chapter IV ofthe Act earlier carried the heading “SANCTUARIES, NATIONALPARKS AND CLOSED AREAS”, with division of the provisions underthree sub-headings viz., “Sanctuaries”, “National Parks” and “ClosedEAreas”.[14] At the relevant point of time, i.e., issuance of the twonotifications dated 06.03.1976 and 28.08.1978, the provisions in Sections18 to 24, 27 and 28 of the Act of 1972, under the sub-heading“Sanctuaries”, with which we are largely concerned in this appeal, hadbeen as under:- “18. Declaration of sanctuary.- (1) The State Government may,Fby notification, declare any area to be a sanctuary if itconsiders that such area is of adequate ecological, faunal,floral, geomorphological, natural or zoological significance,for the purpose of protecting, propagating or developing wildlife or its environment[15]

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14 The main heading was substituted by Act No. 16 of 2003 and it now reads:“PROTECTED AREAS”.

15 The provisions contained in Section 18(1) came to be amended by Act No. 44 of1991 with effect from 02.10.1991. The amended provisions of Section 18(1) read asfollows :- H

19. Collector to determine rights.- Whenever any area isdeclared to be a sanctuary, the Collector shall inquire intoand determine, the existence, nature and extent of the rightsof any person in or over the land comprised within the limitsof the sanctuary[16].

20. Bar of accrual of rights.- After the issue of a notificationunder section 18, no right shall be acquired in, on or overthe land comprised within the limits of the area specified insuch notification, except by succession, testamentary orintestate.

21. Proclamation by Collector.- When a notification has beenissued under section 18, the Collector shall publish in theregional language in every town and village in or in theneighbourhood of the area comprised therein, a proclamation- (a)specifying, as nearly as possible, the situation andthe limits of the sanctuary; and (b)requiring any person, claiming any right mentionedin section 19, to prefer before the Collector, withintwo months from the date of such proclamation, awritten claim in the prescribed form, specifying thenature and extent of such right with necessary detailsand the amount and particulars of compensation, ifany, claimed in respect thereof.

22. Inquiry by Collector.- The Collector shall, after service ofthe prescribed notice upon the claimant, expeditiously inquireinto- “18. Declaration of sanctuary. -

(1) The State Government may, by notification, declare its intention to constituteany area other than an area comprised within any reserve forest or the territorialwaters as a sanctuary if it considers that such area is of adequate ecological,faunal, floral, geomorphological, natural or zoological significance, for thepurpose of protecting, propagating or developing wild life or its environment.”16 Section 19 was also amended by Act No. 44 of 1971 and the amended Section 19reads as follows:- “19. Collector to determine rights. - When a notification has been issued undersection 18 the Collector shall inquire into, and determine, the existence, natureand extent of the rights of any person in or over the land comprised within thelimits of the sanctuary.”

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A(a)the claim preferred before him under clause (b) ofsection 21; and

(b) the existence of any right mentioned in section 19 andnot claimed under clause (b) of section 21, so far as the same may be ascertainable from the records ofthe State Government and the evidence of any personacquainted with the same.

B

23. Powers of Collector.- For the purpose of such inquiry, theCollector may exercise the following powers, namely:- (a) the power to enter in or upon any land and to survey,demarcate and make a map of the same or to authoriseany other officer to do so; C

(b) the same powers as are vested in a civil court for thetrial of suits.

D24. Acquisition of rights.- (1) In the case of a claim to a rightin or over any land referred to in section 19, the Collectorshall pass an order admitting or rejecting the same in wholeor in part.

(2) If such claim is admitted in whole or in part, the CollectorEmay either- (a)exclude such land from the limits of the proposedsanctuary, or (b)proceed to acquire such land or rights, except whereby an agreement between the owner of such land orFholder of rights and the Government, the owner orholder of such rights has agreed to surrender hisrights to the Government, in or over such land, andon payment of such compensation, as is proved inthe Land Acquisition Act, 1894 (1 of 1894).[17]

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17 By the said amendment Act No. 44 of 1991, sub-clause (c) was added toSection 24 as follows: - “(c) allow, in consultation with the Chief Wild Life Warden, thecontinuation of any right of any person in or over any land within theHlimits of the sanctuary.”

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

27. Restriction on entry in sanctuary. – (1) No person otherthan, - A

(a) a public servant on duty,

(b) a person who has been permitted by the Chief WildLife Warden or the authorised officer to reside withinBthe limits of the sanctuary,

(c) a person who has any right over immovable propertywithin the limits of the sanctuary, (d) a person passing through the sanctuary along a publichighway, and C

(e) the dependents of the person referred to in clause(a),clause(b) or clause (c),shall enter or reside in the sanctuary, except under and inaccordance with the conditions of a permit granted undersection 28.

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(2) Every person shall, so long as he resides in the sanctuary,be bound- (a)to prevent the commission, in the sanctuary, of anoffence against this Act; E

(b) where there is reason to believe that any such offenceagainst this Act has been committed in such sanctuary,to help in discovering and arresting theoffender;

(c) to report the death of any wild animal and tosafeguard its remains until the Chief Wild LifeWarden or the authorised officer takes charge thereof; F

(d) to extinguish any fire in such sanctuary of which hehas knowledge or information and to prevent fromspreading, by any lawful means in his power, any firewithin the vicinity of such sanctuary of which he hasknowledge or information; and G

A(e)to assist any Forest Officer, Chief Wild Life Warden,Wild Life Warden or Police Officer demanding his aidfor preventing the commission of any offence againstthis Act or in the investigation of any such offence.[18]

28. Grant of permit.- (1) The Chief Wild Life Warden may, onBapplication, grant to any person a permit to enter or reside ina sanctuary for all or any of the following purposes, namely:- (a) investigation or study of wild life and purposesancillary or incidental thereto; (b) photography; C

(c) scientific research;

(d) tourism;

(e) transaction of lawful business with any person residingin the sanctuary.

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(2) A permit to enter or reside in a sanctuary shall be issuedsubject to such conditions and on payment of such fee asmay be prescribed”.

15.1. It could at once be noticed that a few changes were broughtabout by the amending enactment i.e., Act No. 44 of 1991, having theEeffect of slightly altering the process of declaration of sanctuary. Priorto the said amendment, the notification under Section 18(1) of the Act of1972 was of the declaration of an area to be a sanctuary whereas, afterthe amendment, such notification under Section 18(1) would be ofdeclaration by the State Government of its intention to constitute an areaFas a sanctuary. However, the remaining part of the scheme of theprovisions regarding the powers of the Collector to determine the rights;the bar over accrual of rights after issuance of notification under Section18; issuance of proclamation by the Collector; inquiry by the Collector; 18 By the said Act No. 44 of 1991, sub-section (3) and sub-section (4) were inserted toGSection 27 as under: - “(3) No person shall, with intent to cause damage to any boundary-mark of asanctuary or to cause wrongful gain as defined in the Indian Penal Code, 1860(45 of 1860), alter, destroy, move or deface such boundary-mark.

(4) No person shall tease or molest any wild animal or litter the grounds ofHsanctuary.”

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

and the Collector’s powers for the purpose of inquiry remained essentiallythe same.[19]-[20]

The operation and effect of Section 20 of the Act of 1972

16. It is beyond the pale of doubt that in the scheme of the Act of1972, issuance of a notification under Section 18 thereof has the peculiarand striking effect, of arresting the accrual of any right in the landcomprised within the limits of the area specified in such notification exceptby way of testamentary or intestate succession (vide Section 20 ibid.).Even if the appellant was given the land in question on lease for a period 19 It may, however, be pointed out that in view of modification in the scheme of theprocess of declaration of a sanctuary, whereby, after the amendment, the notificationunder Section 18 is only a declaration of the intention of Government, the provisionswere inserted by way of Section 26-A to the Act of 1972 to provide for the declarationof area as a sanctuary, essentially after disposal of the claims, if any made after issuanceof the notification under Section 18. For the present purpose, suffice would be to takenote of the principal part of sub-section (1) of Section 26-A, (while omitting theproviso and other sub-sections), as under: - “ 26-A. Declaration of area as sanctuary.- (1) When –

(a) a notification has been issued under section 18 and the period for preferringclaims has elapsed, and all claims, if any, made in relation to any land in anarea intended to be declared as a sanctuary, have been disposed of by theState Government; or (b) any area comprised within any reserved forest or any part of the territorialwaters, which is considered by the State Government to be of adequateecological faunal, floral, geomorphological, natural or zoological significancefor the purpose of protecting, propagating or developing wild life or itsenvironment, is to be included in a sanctuary, the State Government shall issue a notification specifying the limits of the areawhich shall be comprised within the sanctuary and declare that the saidarea shall be a sanctuary on and from such date as maybe specified in thenotification :

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20 It may also be pointed out that several more changes have been brought about in thescheme of these provisions in Chapter IV by way of by Act No. 16 of 2003 viz.,Sections 18-A and 18-B have been inserted, providing for protection of sanctuaries andappointment of Collectors; the proclamation under Section 19 is now required to beissued within sixty days of issuance of the notification under Section 18; Section 25-Ahas also been inserted providing for completion of proceedings under Sections 19 to 25within two years from the date of notification under Section 18; sub-section (3) hasbeen substituted in Section 26-A; and Section 29 has also been substituted, prohibitingdestruction, exploitation or removal of any wildlife including forest produce from asanctuary except under and in accordance with a permit granted by the Chief WildlifeWarden. These provisions need not be dilated for being not applicable to the case athand.

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Aof 5 years from 01.07.1972, that period came to an end on 30.06.1977.On this date of completion of the term of the lease, indisputably, thenotification under Section 18(1), which was issued on 06.03.1976, wasin operation and it had been the specific assertion of the appellant thatthe subject land was included in the said notification.[21] That being theposition, there was absolutely no occasion for the appellant acquiringBany further right in the land in question after expiry of the term of hislease on 30.06.1977. For this reason alone, we are clearly of the viewthat the so called second lease deed, said to have been executed infavour of the appellant on 20.03.1978 was of no effect. In other words,the notification under Section 18(1) having been issued on 06.03.1976C(which included the land in question as per the own assertion of theappellant), no right in the land in question could have been acquiredexcept by succession and hence, acquiring of any right by the appellantin the subject land, said to be covered by the said notification dated06.03.1976, by way of a lease, was absolutely out of question.

D16.1. In our view, the entire substratum of the case of the appellantis knocked to the ground once it is found that the appellant had acquiredno right under the said second lease dated 20.03.1978 and least any rightagainst the State. Noteworthy it is that in all the previous litigations,initially seeking exclusion of land in question from the sanctuary; thenseeking compensation for its inclusion; and then questioning its exclusion,Ethe Mutt had been an active participant. In fact, the last petition seekingto question the exclusion was filed jointly by the Mutt and the appellant.However, the Mutt has not joined the claim for damages in this suit. Theappellant, we have no doubt, had no right whatsoever to claim damageswith reference to the alleged cause of action based on the order ofFexclusion dated 19.11.1993 for the reason that the alleged second leasewas of no effect and the appellant had acquired no right thereunder. Wemay put it in yet other words that if at all the exclusion order dated19.11.1993 furnished any right to maintain an action against the State,only and only the Mutt could have maintained such an action but not the appellant. The suit filed by the appellant is liable to be dismissed on thisGcount alone.

21 Even when the defendant-respondent made an uncertain attempt to suggest that thesubject land was not included in the said notification under Section 18(1) of the Act, ithad been the specific assertion of the appellant that it was so included and the entirematter, including the claim of the appellant, has proceeded on the basis that it wasHindeed included therein.

Even if the appellant had any right, there was no infringement

17. Having found that the plaintiff-appellant did not acquire anyright under the second lease and dismissal of suit at hand could besustained on this ground alone, we may, yet, leave this aspect aside for amoment and examine the second question as to whether the right of theappellant (if any) in the subject land was infringed in the manner as togive the appellant a cause to maintain an action for damages. Noteworthyit is that the claim for damages in the present suit is based on the assertionthat the respondent-State through its officers caused prejudice and injuryby preventing the appellant from entering the subject land and enjoyingthe usufruct thereof and then, by denying compensation for acquisitionby lately excluding the subject land from the sanctuary. Such assertionof the appellant has also taken its strength from some of the observationsmade by the Division Bench of the High Court in its aforesaid judgmentdated 18.09.1997, whereby the claim of the Mutt and the appellant againstthe exclusion order dated 19.11.1993 was rejected. In our view, there isno merit in the claim of the appellant.

17.1. The Division Bench of the High Court has noticed in theimpugned judgment dated 26.02.2007, and rightly so, that even as perthe admission of the PW-1, the appellant had not been dispossessed. Sofar as the restriction on entry is concerned, as per Section 27 of the Actof 1972, a person having any right over the immovable property withinthe limits of sanctuary is not debarred from entering into or residingwithin the sanctuary. At the most, the duties as contemplated by sub-section (2) of Section 27 are to be performed. Such duties, essentially toprotect the sanctuary and its habitants, cannot be said to be leading toany debarment from exercising any legal right.

17.2. In our view, the Division Bench has rightly observed in theimpugned judgment that there is nothing on record to establish that theoriginal owner and the plaintiff were prevented from going inside theforest and collecting the usufructs. In a comprehension of the facts onrecord and the law applicable, it cannot be said that the plaintiff-appellantwas prevented from exercising its lawful rights in any unlawful mannerby the State. Hence, there appears no basis for the appellant to maintainan action for damages.

18. There had, of course, been one instance where the appellantwas denied the permission to fell the trees. That denial was made way A

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Aback on 16.11.1976 and could not have furnished any cause to theappellant to maintain the claim for damages for the so called loss ofearning for 22 years and for claiming other amount as per the prayersmade in the plaint. Even as regards the aforesaid denial of permission tofell the trees, it could be presumed that the trees were available at thesite when the area was excluded from sanctuary. Therefore, it cannotBbe said that the plaintiff-appellant, if having lawful right over such trees,had suffered any loss by the action of the officers of the Government.

19. For what has been discussed hereinabove, we are satisfiedthat the appellant had no case for claiming damages against therespondent-State. Hence, it does not appear necessary to deal withCvarious decisions cited by learned counsel for the appellant as regardsviolation of right to property and the claim for damages on that count.However, one aspect of the matter as regards admission on the part ofthe Collector in the letter dated 28.05.1987 may be examined. There isno dispute on the fundamental principles in Thiru John, Sushil KumarDand Standard Chartered Bank (supra) that an admission is the bestevidence against a litigant, unless properly explained. There had notbeen any evidence on behalf of the defendant-respondent in this caseand the aforesaid letter dated 28.05.1987 has not been denied. Thequestion, however, is about the effect of this letter. In our view, even ifthe said letter, being essentially of inter-departmental correspondence, isEtaken on its face value, nothing much turns upon it because, as rightlyobserved by the High Court, there is nothing on record to indicate thatthe original owner and the appellant were prevented from going insidethe subject land and from collecting the usufructs; and it cannot be saidthat the appellant was prevented in any unlawful manner by the State inFexercising its lawful right (if at all the appellant had any such right).

20. For what has been discussed hereinabove, we are satisfiedthat the Division Bench of the High Court has rightly answered both thematerial questions i.e., as to whether the appellant had any right in thesubject land; and if there was any such right, as to whether the sameGhad been infringed, against the appellant in a proper manner and inaccordance with law. No case for granting any decree for damages ismade out.

Limitation

21. On the facts and in the circumstances of this case, the questionHof limitation naturally arises for consideration. If the actions of the officers

of the respondent-State under the Act of 1972 at all gave rise to theclaim for damages, the matter was directly covered by Article 72 of theLimitation Act providing for the limitation of one year for such a suit,which begins to run when the act or omission takes place. Article 72 ofthe Limitation Act reads as under:- A

For compensation for One When the act or Bdoing or for omitting to year omission takes place. do an act alleged to be in pursuance of any enactment in force for the time being in the territories to which this Act Cextends.

21.1. In the case of Challa Ramkrishna Reddy (supra), this Courthas pointed out that if the act or omission complained of is not alleged tobe in pursuance of the statutory authority, Article 72 would not apply;and this Article would not protect a public officer acting malafide underthe colour of his office. Although in the present case, there is no specificallegation of malafide against any particular officer/officers and hence,Article 72 would operate with limitation period of one year from the dateof impugned action but, for the sake of argument, we may assume thatthe residuary Article 113, providing for the limitation of three years fromthe time when the right to sue accrues may apply to the suit at hand. Wemay further assume that the order dated 19.11.1993 gave a right to sue.Even then, the suit filed on 08.06.1998 was much beyond the period oflimitation.

DE

21.2. The appellant, therefore, referred to and relied upon Section14 of the Limitation Act and the observations made by the High Court inthe judgment dated 18.09.1997. So far the observations by the HighCourt in the said judgment are concerned, it is but apparent that theDivision Bench of High Court could not have, and did not, finallypronounce that the time spent in the said writ matter would be excludedunder Section 14. The Division Bench only left it open that such aground may be raised in the claim for compensation. When raised, theground was obviously required to be examined on its own merits.

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21.3. It is noticed that the learned Single Judge, while dealing withissue No. 2 in the suit, proceeded in a wholly cursory manner, inasmuchas after referring to the observations in the judgment 18.09.1997 and H

Athen to the contentions of parties, the learned Judge straight awayobserved that he would disagree with the defendant without specifyingany reason; and stated the conclusion that the suit was filed within time.The Division Bench, on the other hand, pointed out its prima facie doubtson the applicability of Section 14 of the Limitation Act but did not decidethe question of limitation, as the claim was being negatived on merits.BHaving regard to the subject matter, it appears appropriate to deal withthis issue and to point out as to why Section 14 would not apply.

21.4. Section 14 is one such provision in the Limitation Act thatprovides for exclusion of the time spent in prosecuting one civil proceedingbona fide in a Court not having jurisdiction, while computing limitationCin any suit where the matter in issue is same as that of the earlierproceeding. The heading of this provision and sub-section (1) thereofmay be extracted as under:

“14. Exclusion of time of proceeding bona fide in court withoutjurisdiction.-(1) In computing the period of limitation for anyDsuit the time during which the plaintiff has been prosecutingwith due diligence another civil proceeding, whether in a courtof first instance or of appeal or revision, against the defendantshall be excluded, where the proceeding relates to the samematter in issue and is prosecuted in good faith in a courtEwhich, from defect of jurisdiction or other cause of a likenature is unable to entertain it.”

21.4.1. We may usefully refer to the relevant decisions pointingout the basic requirements for applicability of Section 14 of the LimitationAct. In the case of Madhavrao Narayanarao Patwardhan v.FRamkrishna Govind Bhanu and Ors.: AIR 1958 SC 767, this Courtpointed out the requirements on plaintiff for the purpose of Section 14 inthe following:- “6. …..In order to bring his case within the section quotedabove, the plaintiff has to show affirmatively:G(1)that he had been prosecuting with due diligence theprevious suit in the court of the Munsif at Miraj.

(2) that the previous suit was founded upon the same causeof action, H

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

(3) that it had been prosecuted in good faith in that court,and

(4) that that court was unable to entertain that suit onaccount of defect of jurisdiction or other cause of alike nature……..”

21.4.2. Further, in the case of Zafar Khan and Ors. v. Board ofRevenue, U.P. and Ors.: 1984 (Supp) SCC 505, this Court pointedout thus:

“13. In order to attract the application of Section 14(1), theparties seeking its benefit must satisfy the court that : (i) thatthe party as the plaintiff was prosecuting another civilproceeding with due diligence; (ii) that the earlier proceedingand the later proceeding relate to the same matter in issue,and (iii) the former proceeding was being prosecuted in goodfaith in a court which, from defect of jurisdiction or othercause of a like nature, in unable to entertain it.……..”

21.4.3. In Yeshwant Deorao (supra), this Court held that therecan be no exclusion under Section 14 of the Limitation Act of the timespent in insolvency proceedings against the judgment debtor, in computingthe period of limitation for executing a decree against him, as the twoproceedings were not for obtaining the same relief. This Court said,-

“5............ The relief sought in insolvency is obviously differentfrom the relief sought in the execution application. In theformer, an adjudication of the debtor as insolvent is soughtas preliminary to the vesting of all his estate and theadministration of it by the Official Receiver or the OfficialAssignee, as the same may be, for the benefit of all thecreditors; but in the latter, the money due is sought to berealized for the benefit of the decree-holder alone, byprocesses like attachment of property and arrest of person. Itmay be that ultimately in the insolvency proceedings thedecree-holder may be able to realize his debt wholly or inpart, but this is a mere consequence or result. Not only is therelief of a different nature in the two proceedings but theprocedure is also widely divergent.”

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A21.4.4. We may also refer to a Division Bench decision of theNagpur High Court in Kashinath Shankarappa v. The New AkotCotton Ginning and Pressing Co. Ltd.: AIR 1951 Nagpur 255wherein, on the question as to whether in an action for recovery of debtin the civil Court, the time spent in the winding up proceeding could beexcluded, the High Court answered in the negative thus:B

“28. The grounds on which a company can be wound up areset out in S. 162, Companies Act. There are number of them.Even if it be assumed that the application was under S. 162(v),namely, that the company was unable to pay its debts S. 163(1)shows that the expression “unable to pay its debts” embracesthree distinct concepts. There is nothing to show that theapplication was confined to this particular debt. But even ifit was, the cause of action in winding up proceedings underS. 163(1) is the inability of the company to pay its debts andnot as here, as the recovery of the debt. The question ofrecovery does not arise until the winding up order has beenmade and a liquidator appointed. It is at that stage that theclaims against the company are enquired into and decided.Therefore the cause of action in those proceedings and thecause of action here were not the same. It follows that S. 14 isnot attracted.”

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21.4.5. The decisions referred by learned counsel for the appellanthad been of different situations. In Rameshwarlal (supra), the claimwas of salary by the petitioner that was not entertained in the writ petitionon the ground that the claim was recoverable in civil action and the civilsuit was filed thereafter. This Court indicated the normal principle thatFthe Court dealing with the matter in the first instance must be foundlacking jurisdiction or other cause of like nature to entertain the matterbut then, found that in the proceedings under Article 226 of the Constitutionof India, the High Court had expressly declined to grant relief whilerelegating the petitioner to a suit in the civil Court. In the givenGcircumstances, this Court observed that the petitioner could not be leftremediless. In the case of Shring Construction Co. (supra), thearbitration award was initially sought to be challenged by way of a writpetition that was dismissed as being not maintainable on the ground thatthe award ought to have been challenged under Section 34 of the H

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

Arbitration and Conciliation Act, 1996. Then, the District Judge dismissedthe application under Section 34 of the said Act of 1996 for being barredby time. This Court found that applicability of Section 14 of the LimitationAct was not excluded from the said Act of 1996 and hence, the matterwas remitted to the District Judge to examine if the period spent by theappellant in prosecuting remedy before the High Court could be excluded.

21.4.6. The common thread running through all the decisions abovereferred is that for the applicability of Section 14 of the Limitation Actand exclusion of the time spent in earlier proceeding, the matter in issuein both the earlier and the later proceeding must be the same. This isapart from the other requirements that the previous proceeding had beencivil proceeding, which were being prosecuted by the plaintiff with duediligence and in a Court which, from the defect of jurisdiction or othercause of like nature, was unable to entertain the same though the plaintiffhad been prosecuting in that Court in good faith.

21.5. In the present case, except the fact that the earlier writpetition in challenge to the exclusion order dated 19.11.1993 was civilproceeding and the plaintiff might have been prosecuting with duediligence, none of the other requirements of Section 14 of the LimitationAct are satisfied. The basic requirement, that the matter in issue in theearlier and the later proceeding ought to be the same; and both theproceedings, earlier and later, ought to relate to the same cause of actionand for the same relief, is totally missing. Rather, the matter in issue inthe earlier proceeding could well be contradistinguished from the matterin issue in the present suit. In the said earlier proceeding, the plaintiff-appellant joined the Mutt to assert that the respondent-State was notentitled to exclude the land in question from sanctuary; and that theState ought to take the land and ought to pay compensation as proposedby some of its officers. On the other hand, the claim in the present suitis founded on the ground that the plaintiff has suffered loss due to theproceedings under the Act of 1972 and then, due to exclusion of thesubject land from acquisition. The relief claimed in the present suit andmatter in issue herein cannot be said to be the same as had been in issuein the earlier proceeding i.e., the said writ petition against the exclusionorder dated 19.11.1993. Apart from the fact that the earlier proceedingi.e., the said writ petition was for a different relief for quashing theexclusion order dated 19.11.1993, it is also pertinent that the said writ

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Apetition was dismissed on merit and not for want of jurisdiction.Applicability of Section 14 of the Limitation Act is totally ruled out in thiscase.

21.6. We may also observe that if the said order dated 19.11.1993had at all given any cause to the appellant to claim damages/compensation,Bthe limitation had begun to run from that date itself and the said proceedingin the writ petition had never arrested such running of limitation. Thelearned counsel for the appellant has submitted that the said order dated19.11.1993 was quashed by the learned Single Judge on 13.09.1995 andcame to be resurrected only when the Division Bench allowed the appealof the State on 18.09.1997 and therefore, limitation would run from theCdate of judgment of the Division Bench. This proposition, at the firstblush, appeared attractive but cannot be accepted on a closer look at thematter. The filing of writ petition or any order passed therein did notoperate in arresting limitation that had begun to run on 19.11.1993, so farthe right to sue for damages is concerned. The plaintiff-appellantDconsciously chose not to claim damages in the wake of the order dated19.11.1993 and, instead, joined the Mutt to seek the relief that the saidorder dated 19.11.1993 be quashed and the land be not excluded fromsanctuary. Having failed in such an attempt, the appellant could not havemaintained the claim for damages, by filing a suit in the year 1998.

E21.7. The observations of the Division Bench in the order dated18.09.1997, suggesting as if the time spent in the said petition couldreadily be excluded are of no effect because the Division Bench, whiledealing with the said writ matter, could not have decided the issue oflimitation in the suit in anticipation. Some of the expressions of conclusivenature, as used by the Division Bench in the judgment dated 18.09.1997,Fwere rather unwarranted and in any case, could not have made thequestion of limitation in relation to the suit for damage fait accompli.We say no more because, read as a whole, the said judgment dated18.09.1997, cannot be taken to be of final conclusion as regards theapplicability of Section 14 to the future action. As noticed, Section 14 ofGthe Limitation Act does not apply to the present suit; and, for beingotherwise barred by limitation, the suit is liable to be dismissed on thisground alone.

22. We may also observe that so far as the denial of felling thetrees by the order dated 16.11.1976 is concerned, if the plaintiff-appellant H

M/S NATESAN AGENCIES (PLANTATIONS) v. STATE REP. BY THE SEC. TOGOVT. ENVIRONMENT AND FORESTS DEPT. [DINESH MAHESHWARI, J.]

at all had any right to make a claim for damages on that score, the sameought to have been made within limitation from that date. The relief inthat regard could not have been claimed by way of a suit filed more than20 years later.

CONCLUSION

23. The upshot of the discussion aforesaid is that the suit filed bythe plaintiff-appellant was barred by limitation and even otherwise, theplaintiff-appellant had no case on merits to claim damages from therespondent-State. The Division Bench of the High Court has rightlyallowed the appeal filed by the State and has rightly dismissed the baselesssuit filed by the appellant.

24. Accordingly and in view of the above, this appeal standsdismissed. In the circumstances of the case, the parties are left to beartheir own costs throughout.

Ankit Gyan

Appeal dismissed.

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