Himachal Pradesh High Court
Anant Ram Negi vs State Of H.P. And Ors. on 1 January, 2003
Equivalent citations: AIR2003HP114
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This suit has been instituted by the plaintiff for recovery of Rs. 36,98,406/- on account of damages with future interest at the rate of 18% per annum with effect from 1-8-1997 till the date of realisation of the amount.
2. The case of the plaintiff as made out in the plaint is that he purchased 477 trees of Deodar and Kail standing on land Khasra numbers 28, 37, 38, 39, 40, 42, 44, 45, 46, 47, 48, 66, 67 and 68, situate in Chak Jangal Koti, Forest Range Deha, Tehsil Kotkhai, District Shimla from the land owners, namely, Khampa, Chantu, Shama, Tulsu (Moti), Rafiq, Pania, Hira, Dhania, Kalia and Jogi Ram etc. The aforesaid land was got demarcated from the competent Revenue officials in the presence of Forest Officials including Assistant Conservator of Forest, Shimla, Subsequent to the demarcation, 477 trees in question were marked by the Forest Officials after due permission having been granted by the Divisional Forest Officer, Shimla. Thereafter, the plaintiff felled the said trees for the purpose of converting them into timber after making substantial investment. When out of 477 felled trees 23 trees had been converted into standard slipers etc., the remaining felled trees and the slipers were seized by the police and the Forest Department officials in case FIR No. 47/ 83 dated 25-3-1983, under Sections 4 and 6 of the H.P. Land Preservation Act, Section 379 of the Indian Penal Code and Section 33 of the Indian Forest Act. The value pf the seized trees and the timber was assessed in the sum of Rs. 9,30,980/-. On completion of the investigation in the case, a charge-sheet was submitted against the plaintiff which was registered as Case No. 276/1 of 1983. After the trial by the learned S.D.J.M., Theog, the plaintiff was acquitted vide judgment dated 28-2-1987. However, the seized trees and timber were ordered to be confiscated to the State. The plaintiff preferred Appeal No. 9-S/10 of 1987 against the orders of confiscation of the trees and timber which was allowed by the learned Sessions Judge, Shimla vide his judgment dated 30-11-1987 and the seized trees/timber were ordered to be released in favour of the rightful owner, i.e. the plaintiff. The State preferred Review Petition No. 3-S/4 of 1988 against the judgment of the learned Sessions Judge which was dismissed on 18-4-1988. The State then preferred Criminal Revision No. 33/88 in the High Court against the order of the learned Sessions Judge but the, same was also dismissed by the High Court vide its judgment dated 22-12-1992 and affirmed the order of the learned Sessions Judge directing release of the seized property. The State then preferred Special Leave Petition No. 956 of 1995 in the Supreme Court which was dismissed on 5th of May, 1997.
3. On 2-9-1983 an application under Sections 457/459 of the Code of Criminal Procedure was filed in the Court of S.D.J.M., Theog with a prayer to dispose of the seized timber and trees wherein the orders for disposal of the said property were passed with the direction that the said property would be disposed of by the Divisional Forest Officer after assessing the value of the timber and the trees and the sale proceeds shall in no case be less than the value so assessed and the sale proceeds were to be deposited in the Government Treasury under the appropriate Head, This order, however, was modified on 20-1-1984 to the extent that the seized property was to be sold by the Forest Corporation after making proper assessment of the value thereof. The plaintiff was also allowed to offer bid at the time of auction of the timber and the Forest Department was directed to hand over the timber to the Divisional Manager, H.P. State Forest Corporation, Shimla. It was also directed that before conversion/exploitation of the felled trees, the Corporation would prepare details regarding the classes of each felled tree and volume in cubic meters and ensure speedy exploitation of the felled trees and conducting of the auction. The compliance report was to be submitted by 13-3-1984. Vide order dated 20-3-1984 the defendants were directed to give notice to the plaintiff of the dates fixed for auction of the timber. The dates of auction were fixed for 5th and 6th of November, 1985 at Parwanoo and the plaintiff accordingly visited Parwanoo on the said dates but no auction took place nor the plaintiff was informed of any future date on which the auction was to be held. Subsequently, the plaintiff learnt that a substantial part of the timber, i.e. 800 scants, had been auctioned on 29-10-1985 at the back of the plaintiff without notice to him.
4. It is further claimed by the plaintiff that the defendants deliberately delayed the conversion and auction of the timber and even violated the directions of and undertaking given to the Court. The trees and logs were kept in the open unattended and unguarded resulting not only in the pilferage but also were damaged by fire on more than four occasions and finally the volume which was available for auction, was 366.2959 cubic meters as against the assessed volume of 1570.30 cubic meters. The defendants even neglected to assure the timber/ trees against fire, theft/flood etc. While converting the timber, the conversion was carried out in a negligent manner and instead of converting the trees into scants/slipers, it was converted into logs, dlmdimas, balies etc., that is a lot of inferior quality. The auction of the timber was conducted by the defendants without notice to the plaintiff. Such callous and negligent acts, deeds and conduct of the defendants in converting, stacking and auctioning the timber resulted in huge losses. Had there been proper stacking and conversion of the timber, it would have been sold for more than Rs. 30 lacs at the auction. Even according to the rates fixed for supply of standing trees, the value of 471 trees wrongfully seized works out to Rs. 20,02,655/as against this amount the plaintiff had received only a sum of Rs. 2,90,428/-which is alleged to be the total sale proceeds received at the auction and is far below even according to the value of the timber/trees as assessed at the time of seizure, i.e. Rs. 9,30,980/-. The auction of the timber had been conducted from 1985 to 1991 when the prices of timber had already escalated many times. The plaintiff has restricted the claim to Rs. 20,02,655/- and after deducting the aforesaid received amount, the plaintiff now claims to be entitled to the principal sum of Rs. 17,12,226/-, interest thereon at the rate of 12% per annum with effect from 1-1-1988 to 31-7-1997 amounting to Rs. 19,86,180/- total Rs. 36,98,406/- and future interest at the rate of 18% per annum from 1-8-1997 till the date of realisation. Hence the suit.
5. The defendants contested the suit. Defendant Nos. 1 to 3 in their written statement took preliminary objections that the suit is time barred, that notice under Section 80 of the Code of Civil Procedure has not been served before the institution of the suit, that the plaintiff has no cause of action, that the plaintiff is estopped from filing and maintaining the suit and that the suit is barred by principle of res judicata. On merits, while not disputing the taking into possession of the felled trees and timber during the course of investigation of criminal case against the plaintiff, it has been claimed that the plaintiff had felled the trees in violation of the provisions of the H.P. Land Preservation Act, 1978, therefore, the timber/trees were lawfully seized. It is further claimed that the value of the timber/ trees assessed in the sum of Rs. 9,30,980/-is not correct because it has been assessed by applying market rate of standing trees which are not applicable to the case of private or Government timber lots. The total volume of the timber as claimed in the plaint has also been denied and it is claimed that the total volume of 448 felled trees was taken as 1056 cubic meters. It is also claimed that the seized timber was not misappropriated by the local people or the officials of the replying defendants. The averments made in the plaint regarding wrong conversion and misconduct of auction etc. had been left to be answered by defendant Nos. 4 and 5. The claim for the suit amount has, however, been denied.
6. Defendant Nos. 4 and 5 in their written statement besides taking similar preliminary objections as raised by defendant Nos. 1 to 3, raised two more objections that the plaint is liable to be dismissed under Order 7, Rule 11-D of the Code and that the suit is not properly valued for the purposes of Court fee and jurisdiction. The averments in the plaint regarding demarcation, marking, felling and conversion of 23 trees by the plaintiff as in Paras 1 to 6 of the plaint, have been left without any comments on the ground that those concern defendant Nos. 1 to 3. It is riot disputed that the auction of the timber was to be conducted by defendant Nos. 4 and 5 as per orders of the Court. It is claimed that at the time of exploitation of the felled trees, it was noticed that the trees of Kail species were sixty per cent rotten and it was not possible to extract good quality of timber therefrom and only hakkaries and F/W were expected. Therefore, logs and balies were extracted from such trees. The exploitation work was completed on 15-3-1987 and the volume of so extracted timber was 394.819 cubic meters which was sent to Parwanoo for auction. The total value of the timber realised, i.e. Rs. 2,90,428/- was deposited in the Court after deducting the actual expenses and commission charges. It is also claimed that the plaintiff was informed in writing to attend the auction and offer his bids but he did not bother to attend at the time of auction on one pretext or the other. The allegations of intentional delay in the exploitation of the timber and sale thereof have been denied. Some instances of fire in which some quantity of the timber was burnt, have been admitted and it is claimed that it is a common phenomenon in the forests of the State and loss of timber due to forest fire is sometime uncontrollable and unavoidable. However, all out efforts were made by the staff of the replying defendants to extinguish the fire and protect the timber. Therefore, they are not liable for loss of timber because of fire. It is further claimed that the timber was already in deteriorated condition and whatever was its sale price at the time of auction, had been duly accounted for and deposited in the Court, The claim as made in the plaint is, therefore, denied.
7. The plaintiff filed replications to the written statements wherein the grounds of defence as taken in the written statements, had been denied and the claim as made out in the plaint had been reiterated.
8. On the pleadings of the parties, the following issues were framed :--
1. Whether the plaintiff had lawfully felled 477 Deodar and Kail trees and converted 23 trees into standard slipers etc. as alleged? QPP
2. In case Issue No. 1 above is proved whether 448 unconverted trees and 287 scants of timber were wrongfully and unlawfully seized by the defendants from the lawful custody of the plaintiff, as alleged? OPP
3. What was the value of the trees and timber so seized by the defendants? OPP
4. Whether defendants failed to take due care to preserve the quality and quantity of the seized timber resulting in deterioration in the quality and value of the seized timber, if so its effect? OPP
5. Whether there was pilferage by theft and fire of the seized timber due to the negligent act, deeds and conduct of the defendants, if so its effect? OPP
6. Whether defendants 4 and 5 failed in converting the timber in commercially profitable size and the conversion was deliberately and unreasonably delayed, as alleged, if so its effect? OPP
7. Whether the defendants 4 and 5 derelicted in conducting the sale of the seized timber without due publicity about auction thereof behind the back of the plaintiff resulting in fetching low sale price of the timber, as alleged? OPP
8. Whether the defendants 4 and 5 Intentionally and unjustifiably failed to render true and proper accounts of the volume and sale proceeds of the seized timber which was taken over by them from defendants 1 to 3, as alleged? OPP
9. Whether the plaintiff is entitled for the amount claimed or any other amount as compensation for damages caused by the negligent acts, deeds and conduct of the defendants and from whom? OPP
10. Whether the suit is time barred? OPD
11. Whether the plaintiff has no cause of action to institute the present suit? OPD
12. Whether a notice under Section 80, CPC has not been duly and properly served by the plaintiff on the defendants? OPD
13. Whether the plaintiff is estopped from instituting the present suit due to his acts of omission and commission? OPD
14. Whether the suit is barred by the principles of res judicata? OPD
15. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD
16. Whether the suit is liable to be dismissed under Order 7, Rule 11 (d) of the CPC? OPD 4 and 5
17. Relief.
9. I have heard the learned counsel for the parties and have also gone through the record. My issuewise findings are as follows.
Issue NOS. 1 and 210. Since both these issues are interconnected, therefore, are taken up together for decision.
11. As per the contents of the plaint, the plaintiff purchased 477 Deodar and Kail trees from various landowners for the purpose of sale. The land on which the trees, so purchased, were standing, was demarcated by the Revenue officials in the presence of Assistant Conservator of Forest, Shimla and other Forest officials. After obtaining the permission of the Divisional Forest Officer, Shimla, the trees were marked by the Forest officials. It is further averred in the plaint that the plaintiff felled said 477 trees and 23 of the felled trees were converted into standard size slipers etc. numbering 287. Thereafter on registration of a case under Section 33 of the Forest Act, Sections 4 and 6 of the H.P. Land Preservation Act and Section 379 of the Indian Penal Code, the felled trees and 287 scants were seized by the police on the ground that the trees had been felled without the felling permission of the Forest Department, hence the felling was illicit.
12. The plaintiff (PW-11) has in his statement fully supported his case that he purchased 477 Deodar and Kail trees from different land-owners, got the land demarcated in the presence of Forest officials, i.e. Assistant Conservator of Forest, Range Officer, Block Officer and Forest Guard, from Revenue officials, i.e. Tehsildar, Kanungo and Patwari and the trees so purchased were marked by the Forest officials. He has further stated that out of the 477 trees so marked, he felled 471 trees and out of the so felled trees, 23 trees had been converted into scants, when the remaining felled trees and scants were seized and taken into possession by the Forest and police officials vide seizure memos Exts. PW-11/A and PW-6/ B. This statement of PW-11 is fully corroborated by Sant Ram (PW-9) and the contents of Exts. PW-6/B and PW-11/A. There is nothing in the cross-examination of these PWs. to impeach their testimony nor there is any rebuttal by the defendants. On the contrary, it is not disputed that 471 marked trees were felled and 23 of the felled trees had been converted into scants when 448 felled trees and 287 scants of the timber were taken in possession by the police vide memo Exts. PW-11/A and PW-6/B. Thus, the demarcation of the land on which the trees were standing and marking thereof by the Forest officials is not now in dispute.
13. The case of defendant Nos. 1 to 3 throughout has been that despite having been marked, the trees so marked could not be felled without prior permission of the competent Forest Authority, therefore, the felling was unlawful and seizure of the trees and scants vide Exts. PW-11/A and PW-6/ B was lawful, whereas the case of the plaintiff is that at the relevant time the marked trees could be felled without any permission, therefore, the felling of the trees by him was not an illegal act and the trees and the scants could not be lawfully seized.
14. To substantiate the stand taken by defendant Nos. 1 to 3 and to rebut the claim of the plaintiff as aforesaid, the learned Law Officer contended that it is admitted case of the plaintiff that he had felled the trees in question without sanction/licence from any authority whatsoever, therefore, the felling was in contravention of the provisions of Section 4 of the H.P. Land Preservation Act, 1978 and Sections 10 and 11 of the H.P. Private Forest Act, 1955. It was further contended that the area from which the trees were felled was covered by Notification Ext. DA issued under Section 4 of the H.P. Land Preservation Act and the trees could not be felled from the area concerned during the period the plaintiff had felled the trees.
15. The relevant portion of Section 4 of the H.P. Land Preservation Act reads as under :--
"4. Power to regulate, restrict or prohibit, by general or special order, within notified areas, certain matters.-- In respect of areas notified under Section 3 generally or the whole or any part of any such area, the State Government may, by general or special order, temporarily regulate, restrict or prohibit--
(a) and (b) xxx xxx xxx
(c) the cutting of trees of timber, or the collection or removal or subjection to any manufacturing process, otherwise than as described in Clause (b) of this section, of any forest produce other than grass save for bona fide domestic or agricultural purposes of a rightholders in such area :
(d) to (g) xxx xxx xxx"
16. It is evident from a bare reading of the above provisions that cutting of timber trees from an area notified under Section 3 of the Act, has been prohibited. However, these provisions will not apply to an area which is not notified under Section 3 of the Act.
17. Section 3 of the H.P. Land Preservation Act reads as under :--
"3. Notification of areas.-- Whenever it appears to the State Government that it is desirable to provide for the conservation of sub-soil water or the prevention of erosion in any area subject to erosion or likely to become subjected to erosion, the State Government may, by notification published in the Official Gazette, make a direction accordingly."
18. The above provisions empowers the State Government to issue directions for conservation of sub-soil and prevention of erosion in an area, by notification published in the Official Gazette.
19. The defendants have produced in evidence a document Ext. DA and it was contended that this is the notification issued by the State Government prohibiting felling of trees in the concerned area and in view of Ext. DA the trees could not be felled by the plaintiff. Therefore, the felling of the trees by the plaintiff being in contravention of Section 4 of the H.P. Land Preservation Act, the felled trees and scants were legally seized.
20. A bare perusal of Ext. DA shows that it is not a notification under Section 3 of the H.P. Land Preservation Act but is a notice by the Deputy Commissioner, Shimla calling objections from the affected persons under Section 8 of the said Act inviting claims, if any, for compensation.
21. This notice Ext. DA refers to a notification under Section 3 of the H. P. Land Preservation Act issued by the State Government and such notification was issued for a period of three years w.e.f. 1-3-1979. It is however, not indicated as to what were the prohibitions imposed under such notification. In any case, the prohibition(s), if any, thereby imposed were to be effective temporarily for a period of three years, therefore, it was to be effective only up to 28-7-1982. It is not the case of anyone that by any other notification the period specified in the said notification was ever extended.
22. In view of the charge-sheet submitted against the plaintiff as discussed in the judgment Ext. DA, and the damage report Ext. DW-2/A, the trees in question were felled in and after November, 1982 and felling was detected on 20-3-1983, i.e. the period when no notification under Section 3 of the H. P. Land Preservation Act was operative. In these circumstances, the felling of marked trees by the plaintiff without the permission was not prohibited. This background led the concerned Criminal Courts to direct release of the seized timber/trees in favour of the plaintiff and such orders between the parties became final.
23. Section 10 of the H. P. Private Forest Act reads as under :--
"10. Restriction of right of landlord or persons claiming through landlord to cut or remove timber or forest produce. The landlord, or a lessee or other person claiming through the landlord, shall not cut or remove or permit any person to cut or remove any tree, timber or other forest produce in or from arty notified forest so as to effect the right of any person which such person may, subject to any rules made under this Act, enjoy under any custom or usage."
24. Section 11 of the H. P. Private Forest Act reads as under :--
"11. Grant of licence to fell trees and fees for sale of trees Preparation of a working plan.-- (1) A Forest Officer may, on the application of the landlord or owner, grant a licence for the felling of trees for such purpose and with such conditions as he may deem proper keeping in view the necessity for conservation of soil and moisture and the interest of the general public, and thereupon it shall be lawful for the landlord or the owner to carry out felling in accordance with the terms of the licence.
(2) The landlord or owner celling trees shall pay 15% of the sale price as fees to the State Government and the timber shall not be removed from the forest unless fees have been paid.
(3) The owner may exercise the option of selling the trees either through the Forest Department or direct to any contractor. In the event of selling the trees direct, the owner shall have to pay 15% fees as prescribed above on the price of the trees calculated in accordance with the prescribed principles."
25. It is evident from a bare perusal of the provisions of Sections 10 and 11 supra that they apply to felling of trees in or from a notified forest.
26. Section 4 of the H. P. Private Forest Act authorises the State Govt. to prohibit cutting/felling of trees in a private forest by a notification. It follows that provisions of Sections 10 and 11 will apply only to such private forest regarding which a notification under Section 4 has been issued.
27. Copy of any such notification concerning the area wherein the trees were felled has not been produced by the defendants nor any Official Gazette wherein such notification might have been published, has been referred to or produced, therefore, in the absence of any evidence, oral or documentary having been led by the defendants, it cannot be said that the area from which the trees were felled was an area notified under Section 4 of the H. P. Private Forest Act. This being so, provisions of Sections 10 and 11 of the H. P. Private Forest Act prohibiting the felling of the trees in a notified are without a licence, are not applicable to the case in hand.
28. In view of the above discussion, it is held that the plaintiff lawfully felled 471 trees (not 477 as claimed in the plaint) out of which he had converted 23 trees into 287 scants. Since the trees were not illicitly felled as claimed by defendants Nos. 1 to 3, therefore, the seizure of the trees and the scants from admitted possession of the plaintiff was not warranted by law. These issues are accordingly decided in favour of the plaintiff.
Issues Nos. 4 and 529. Since both these issues are also interconnected and concern the safe and proper preservation of the seized trees/timber, therefore, are taken up together for decision.
30. The plaintiff (PW-11) has stated that on seizure the felled trees and scants were handed over by the police to the Forest Officials on 'Spurdari' and thereafter the defendants did not make any appropriate arrangements for the safe and proper custody of the timber/trees. The seized property was kept lying in the open rendering it liable to decay because of rain and sun. He has further stated that no watchmen were appointed to guard the property and some of the seized timber was burnt in fire which broke out in the area. He has further stated that despite orders of the trial Magistrate to convert and sell the timber within six months, the defendants failed to do so and kept the timber lying unprotected and rotting in the open for a period of about seven to eight years and thus the deterioration in the quality and quantity of the timber resulted in huge losses. PW-9 has corroborated the statement of the plaintiff regarding failure of the defendants to take steps for safe custody and protection of the seized property. There is no cogent and reliable evidence to rebut these statements. It is not the case of the defendants that the trees/timber when taken in possession by the police, were in rotten condition whereas by the time the trees were converted into timber, those had rotten to the extent of 60% as is the case of defendants Nos. 4 and 5. It is also not in dispute that the felled trees/timber were taken in possession in March, 1983 by the police and were handed over to the officials of the Forest Department. The seized property was subsequently handed over to the Forest Corporation for conversion/sale which sold the timber in different lots and completed the sale by the year 1991, i.e. the defendants Nos. 4 and 5 took about eight years for conversion and sale of the timber. It is also admitted by defendants Nos. 4 and 5 that fire broke out in the area where the trees/timber were lying on 10-5-1984, 26-5-1984, 21-3-1985 and 23-3-1985 wherein some timber was burnt to ashes. There is no evidence that during all these eight years, the timber was stacked in sheds or other safe places to save and protect it from the sun, rains and fire and thus the defendants were negligent in taking due care to preserve the quantity and quality of the timber. However, there is nothing on the record to prove any pilferage of the timber.
31. In view of the above discussed evidence, it is held that the defendants failed to take due care to preserve the seized timber from the effects of sun, rain and fire leading to deterioration in its quality and quantity. These issues are accordingly decided in favour of the plaintiff.
Issue No. 632. There is no dispute that defendants Nos. 4 and 5 were required by the order of the Court to convert and sell the timber within six months of the handing over of the trees/scants to them. However, they took about seven years to do so. Evidently, they have failed to discharge the obligation within the reasonable time and in a manner as any prudent person would have done in his own case. Therefore the defendants apparently had caused unreasonable delay in converting and selling the timber. However, there is nothing on record to show that the delay caused by them in conversion and sale of the timber was deliberate. The unreasonable delay in conversion of the timber, however, resulted in deterioration of the quality and quantity of the trees/timber. The trees damaged by the effect of sun and rain, admittedly, could not be converted in commercially profitable volume of timber.
33. In view of the above, it is held that the delay in the conversion of timber by defendants Nos. 4 and 5 though not deliberate but was unreasonable leading to a situation that the felled trees could not be converted into commercially profitable timber as could be extracted if the conversion was not unduly delayed. This issue is accordingly decided.
Issue No. 734. The plaintiff has not led any cogent and reliable evidence to prove that defendants Nos. 4 and 5 derelicted in conducting the sale of timber without due publicity of the auctions held. It is, however, admitted case of the parties that the plaintiff was not present at the time of any auction though he was permitted by the Court to bid. According to the plaintiff, he could not be present at the time of the auctions as the same were conducted without due notice to him. The plaintiff (PW-11) has stated that he was once called for auction but on that date auction did not take place and that he was though informed that he would be intimated as and when the auction would be held, but was never informed about the date (s) of auction. This statement of the plaintiff remains unrebutted. However, from this it cannot be inferred that had the plaintiff been present at the auction, the auction money would have been higher, particularly in view of the fact that the auctioned, timber was not properly preserved for a long period of 7 to 8 years.
35. In view of the above discussion, the plaintiff has failed to prove this issue and it is accordingly held against the plaintiff.
Issue No. 836. The plaintiff (PW-11) or any of his witnesses has not stated that the plaintiff ever called upon defendants Nos. 4 and 5 before the institution of the suit to render true and proper accounts of the Volume and sale proceeds' of the seized timber. It cannot, therefore, be held that despite demand by the plaintiff, the defendants Nos. 4 and 5 intentionally and unjustifiably failed to render accounts to the plaintiff. This Issue is accordingly decided against the plaintiff.
Issue No. 1037. It was contended by the learned Law Officer for the State that the timber/trees were seized in March, 1983. Therefore, if the seizure was illegal/wrongful, the plaintiff could sue for compensation within one year of the date of seizure as provided under Article 80 of the Limitation Act, the plaintiff, however, instituted this suit on 16-8-1997 by which time his claim had become hopelessly time barred.
38. Article 80 of the Schedule to the Limitation Act (hereafter referred to as the Act) reads as follows :
"Description of suit Period of limitation Time from which period begins to run
80. For com-pensation for wrongful seiz-ure of movable property under legal process."
one year The date of the seizure.
39." It is clear on a bare perusal of the above article that it will apply to a suit for compensation for wrongful seizure of movable property "under legal process". The expression "under legal process" does not mean "according to law" and any process taken according to law is not necessarily a "legal process". The expression "legal process" by necessary implications means a process by a Court of law, therefore, this article will apply to seizure under a process issued by a Court and not to a seizure by police in exercise of its legal powers to seize an article during investigation or otherwise unless the seizure is in execution of a "process issued by a Court of law". Since the seizure of the timber and trees by the police, in the case was not in execution of a "legal process" issued by a Court of law, therefore. Article 80 will have no application to the present case.
40. In this case the timber/scants Were taken in possession by the police during the investigation of criminal case against the plaintiff on the ground that the trees had been felled by the plaintiff without permission of the competent authority. The Courts, however, found that the felling of the trees by the plaintiff was not in violation of law, therefore, the seizure was wrongful. Thereafter the case property was to be dealt with as per the final orders passed by the concerned Criminal Court about its disposal. Till such orders for disposal were passed and the defendants failed to return the property or value thereof, the plaintiff had no cause to sue for return of the case property or compensation for damages caused to him. He could sue only when the case property/proceeds thereof were ordered to be released to him but were not released. Therefore, this suit for the purpose of limitation is to be governed by Article 91(b) of the Schedule to the Act which reads as under :
"Description of suit Period of limitation Time from which period begins to run
91. For compen-sation - (a) xxxx
(b) for wrongful taking or injuring or wrongfully de-taining any other specific movable property.
xxxxx Three years xxxxx When the pro-perty is wron-gfully taken or injured, or when the de-tainer's poss-ession becom-es unlawful."
41. It is clear from the bare reading of the above Article that in a suit for compensation for (i) wrongful taking or (ii) injuring or (iii) wrongfully detaining specific movable property, the period of limitation will be governed by it. The cause to sue arose to the plaintiff in this case when seizure of the case property was found illegal and the property or value thereof was not returned/refunded to him pursuant to the release orders passed by the concerned Criminal Court, therefore, the above quoted article will apply to this suit. This view is fully supportable by the ratio in Jai Lal v. The Punjab State, AIR 1967 Delhi 118 and Mangalji Chotelal v. State of Rajasthan, AIR 1971 Raj 167.
42. In Jai Lal's case supra the plaintiff purchased some trees from the Nagar Panchayat and proceeded to cut and remove the trees. But the forest authorities, alleging that the Panchayat had no authority to fell the trees without their sanction and approval, prevented the plaintiff from cutting or removing the trees and confiscated them under Rule 10 framed under Section 76 of the Patiala Forest Act. Subsequently, on a writ petition filed by the Panchayat the High Court decided that the rule in question was outside the scope of Section 76 of the Forest Act and therefore ultra vires so far as third class forests were concerned. Then the plaintiff brought the suit against State of Punjab claiming the loss suffered by him because of the illegal acts of the forest authorities. The suit if governed by Article 2 of the Limitation Act, 1908 was barred and not so if Article 49 of the Act of 1908 applied. It was held that Article 2 was not applicable to the suit. Article 2 applied only if an act was alleged to have been done in pursuance of any enactment in force at the time of the doing the act. It was not enough for the defendants to show that they honestly believed that the enactment was in force. It must in fact be in force. Rules contrary or repugnant to the statutes are void and of no effect. If the delegated authorities were permitted to frame rules repugnant to the Act, they would be trespassing into the legislative field. A rule repugnant to the Act would therefore be a still-born law and it cannot be said that it was in force at the time of commission or omission. In that situation it followed that the impugned act of the forest authorities was not in pursuance of any enactment in force and consequently Article 2 was not applicable and Article 49 (which corresponds to Article 91 of the Limitation Act, 1963) was held applicable to the suit.
43. In Mangalji Chotelal's case supra the Officers of the Civil Supplies Department procured gram from the plaintiff as per the Procurement Order, 1953 at specified rates much below the prices obtaining in the free market at the relevant time. The plaintiff claimed that the Procurement Order was ultra vires of Article 31(2) of the Constitution of India and the procurement of foodgralns from the plaintiff being illegal, he was entitled to compensation for damages suffered by him. In the suit question arose as to whether the suit for the purposes of limitation was to be governed by Article 2 or 96 or 36 or 49 of the Limitation Act of 1908. After due analysis of the aforesaid articles, the Rajasthan High Court held that in view of the finding that the foodgrains were wrongly taken from the plaintiff Article 49 (corresponding to Article 91 of the Limitation Act, 1963) was applicable to the suit for the purpose of limitation.
44. Similar view has been taken by Rajasthan High Court and J. C. Tripura respectively in Siremal Dhingarmal Firm v. State of Rajasthan, AIR 1966 Raj 220 and Hira Lal Jain v. Union of India, AIR 1988 Tripura 63.
45. In view of the above position in law, the suit is to be governed by Article 91(b) for the purpose of limitation which provides three years period of limitation to sue for compensation. The starting point of limitation under this article will be from the time when the property was wrongfully taken or injured or when the possession of the defendants became illegal. In the case in hand, the possession of the defendants evidently became illegal when despite release order passed by the concerned Court they failed to release the case property or value thereof in its entirety to the plaintiff.
46. It is not in dispute that the trial Magistrate acquitted the plaintiff but confiscated the case property to the State vide his judgment Ext. DA dated 28-2-1987. On appeal by the plaintiff the Sessions Judge set aside the order of confiscation and ordered return of the case property to the rightful owner vide order Ext. PW-2/A dated 30-11-1987. The review petition preferred by the State was dismissed on 18-4-1988 vide order Ext. PA, the State then preferred a revision petition in the High Court which was dismissed on 22-12-1992 vide judgment Ext. PW-2/B. The State, admittedly, filed S.L.P. against the order of the High Court in the Supreme Court which was dismissed vide order Ext. PL dated 5-5-1997. Thus, the order directing release of the case property to the "rightful owner" became final. In the meanwhile, the plaintiff claiming to be the rightful owner of the case property; filed an application in the trial Court for return of the case property to him. After holding inquiry about the ownership qua the case property, the trial Magistrate vide order Ext. DB dated 16-8-1994 held the plaintiff to be the owner of the property and entitled to release thereof and the sale proceeds. Since the case property which stood converted and sold by the State functionaries, could not be returned but the sale proceeds after deducting the expenses incurred by defendants Nos. 4 and 5 in conversion and sale of the timber, were refunded to the plaintiff. Thus, the cause for return of the case property or its value accrued finally to the plaintiff on 16-8-1994 when he was held owner of the case property and as such entitled to the return thereof. The suit had been instituted by the plaintiff on 16-8-1997, i.e. on the last day of limitation, therefore, is not barred by limitation. This issue is accordingly held against the defendants.
Issues Nos. 3 and 947. Since both these issues are interconnected, therefore, are taken up together for decision.
48. As per the contents of the plaint, the value of the seized timber and trees had been assessed at Rs. 20,02,655/- and it is also claimed that had the conversion and auction been done properly and within reasonable time, the sale of timber would have fetched a sum of Rs. 30 lacs. It is disputed by the defendants. To prove the value as claimed, the plaintiff (PW-11) has stated that gross value of the property in question would have been Rs. 27/28 lacs and that the assessment of the value of the trees/timber which was Samudha. i.e. Grade-I timber, is Ext. PW-8/A. His statement about the grade of the timber is supported by Sant Ram (PW-9). Lachhi Ram (PW-8) a retired Forest Ranger has stated that he had assessed the value of the timber In question on the asking of the plaintiff vide Ext. PW-8/A after consulting the relevant records including Forest Corporation Manual. K. S. Shandll (PW-7) has produced copy of the letter Ext. PW-7/A whereby the prices of timber for small scale industries were fixed for the year 1987. On the other hand, the stand of the defendants is that the net value of the case property was what had been deposited in the Court and refunded to the plaintiff.
49. A perusal of the evidence led by the plaintiff reveals that such evidence is not reliable. The plaintiff himself is not an expert in evaluating the timber, therefore, his statement is of no use. The rates fixed vide letter Ext. PW-7/A are applicable to sale of timber from Himkashtha Sale-Depots to the Small Scale Industrial Units and industries in Himachal Pradesh and not to sale/auction of timber by a contractor who had to sell the timber through the Forest Corporation by auction at varying rates. It is admitted even by PW-7 that the rates fixed vide Ext. PW-7/A are not applicable to private individuals. Thus, the rates of timber thereby fixed cannot be applied to the seized trees/timber of the plaintiff. Even the assessment Ext. PW-8/A cannot be relied upon for the reasons that PW-8 who had made this assessment admittedly had not undergone any training about assessment of value of timber nor he had actually seen the seized timber/trees in order to find out the condition/quality thereof. The evidence led by the plaintiff to prove value of the timber is thus not reliable. The defendants have not led or relied on any specific evidence to prove that actual and true value of the timber was what was obtained at the auction. In these circumstances the only reliable piece of evidence on record to find out the value of the seized trees/timber is the value assessed at the time of seizure vide memo Ext. PW-11 / A which has been produced by the plaintiff himself. The value of the seized trees and scants as per memo Ext. PW-11/A at the time of seizure was Rs. 9,30,980/-. At the time of seizure or immediately thereafter this assessment was not disputed by the plaintiff in any manner. The evidence led by the plaintiff is to prove his claim for the value of timber which could have been extracted from the felled trees. It is not his case that the net value of trees/timber as and when seized, was not Rs. 9,30,980/-. This value assessed by the officials of the Forest Department at the time of seizure of the trees and the scants is not rebutted even by the defendants by any cogent evidence. Therefore, in view of such assessment it is concluded that the value of the trees and scants in question at the time of seizure was Rs. 9,30,980/-.
50. In view of the seizure being wrongful as already held, the plaintiff would have been entitled to the amount which he would have earned as net profits from the sale of timber after conversion of the felled trees into slipers/scants etc. However, the figures and facts to assess such amount are not fully available on the record. To prove such amount the plaintiff was required to lead cogent and reliable evidence to establish as to what volume of timber and of which grade could be extracted from the felled trees, what would have been the expenditure on such extraction, safe custody and carriage of the extracted timber to the road head and place of sale, what amount of royalty would have been payable to the Forest Department out of the sale proceeds and at what price the timber could be sold at the relevant time by the modes of sale available to the plaintiff. Since there is total lack of evidence to prove these necessary facts to work out the net profit the plaintiff would have earned by sale of seized timber, therefore, he has failed to prove that he would have earned the net profit by conversion and sale of timber himself in the sum of Rs. 20,02,655/- as claimed in the suit.
51. The settled principle of assessment of and awarding damages is to put the parties to a position which existed at the time when the wrong for which damages have been claimed was committed. Therefore, the interest of justice will be met if the plaintiffs claim is determined on the basis of the value of the seized property as it was at the time of seizure that is Rs. 9,30,980/- and it is so determined.
52. It is not in dispute that out of the sale proceeds of the timber, defendants 4 and 5 deposited Rs. 2,50,428.93 and Rs. 40,000/- respectively on 24-1-1987 and 2-7-1987. Against this amount, Rs. 2,76,683/-and Rs. 42516/- had been refunded to the plaintiff respectively on 8-9-1994 and 2-8-1995 as stated by PW-12. After adjustment of this amount, a sum of Rs. 6,40,551/- on account of the value of the seized trees and scants was thus payable on 2-8-1995. Be it stated that the over payment of Rs. 28,770/- against the total deposited amount of Rs. 2,90,428.93 appears to be the payment of interest earned on the deposited amount as in the State of H. P. any amount so deposited in a Court is invested as per the standing instructions of the High Court so that the deposited amount may earn such interest as is paid by the Banks. Therefore, this amount must be deemed to have been refunded as interest on the deposited amount.
53. The plaintiff has claimed interest on the principal amount claimed in the suit at the rate of 12% per annum for the period 1-1-1988 to 31-7-1997 and future interest at the rate of 18%. Be it stated that there is no agreed contractual rate of interest in this case. The claim is not based on a commercial transaction between the parties. The plaintiff could be benefited by sale of the seized property only after payment of royalty to the State. Refund of Rs. 28,770/- had already been received by the plaintiff on account of interest earned on the deposited amount. There is no evidence that the plaintiff himself could have been in a position to convert, carry and sell the timber by 1-1-1988 from which date the interest has been claimed. In these circumstances, it will meet the ends of justice if the plaintiff is awarded interest at the rate of 6% per annum on the principal due sum of Rs. 6,40,551/- with effect from 2-8-1995 when this amount is found payable as the remaining value of the trees/scants till the date of realisation of the amount. Calculated on the basis of the above said rate of interest the plaintiff is entitled to interest in the sum of Rs. 76,866/- for the period 2-8-1995 to 31-7-1997.
54. Since the claim of the plaintiff has been determined on the basis of the value of the felled trees and scants as at the time of the wrongful seizure by the officials of the defendants Nos. 1 to 3, therefore, the liability to pay the amount for which decree may be passed in favour of the plaintiff is that of the defendants Nos. 1 to 3. Since the subsequent acts and omissions on the part of defendants Nos. 4 and 5 do not effect the value of the case property as on the date of seizure, therefore, for their acts and omissions defendants Nos. 4 and 5 may be liable to account for the loss which defendants Nos. 1 to 3 may suffer because of such omissions, but they have no liability to compensate the plaintiff.
55. In view of the above discussion, it is held that the value of the seized felled trees and scant, was Rs. 9,30,980/- and the plaintiff is entitled to recover Rs. 6,40,551/- with interest at the rate of 6% per annum w.e.f. 2-8-1995 till the date of realisation thereof from defendants Nos. 1 to 3. These issues are accordingly decided partly in favour of the plaintiff.
Issue No. 1156. There is nothing on the record to substantiate the plea of the defendants that the plaintiff has no cause of action to sue them. The facts as averred in the plaint disclose a cause of action in favour of the plaintiff. This issue is, therefore, held against the defendants.
Issue No. 1257. The plaintiff (PW-11) has stated that before institution of the suit, he served the defendants with a notice under Section 80 of the Code of Civil Procedure, a copy whereof is Ext. PW-11/B and receipts regarding posting of the notice are Exts. PW-11/C-1 to PW-11/C-6. There is no rebuttal and the defendants have nothing to say against the validity and due service of the notice on them. This issue is accordingly held against the defendants.
Issue No. 1358. There is nothing in evidence which may prove any omission or commission on the part of the plaintiff which may constitute estoppel against him nor this issue was pressed at the time of arguments. Hence this issue is held against the defendants.
Issue No. 1459. There is no evidence to prove that all or any of the issues in this suit stood decided in any earlier suit between the parties. The defence plea is thus frivolous. This issue is accordingly held against the defendants.
Issue No. 1560. The plaintiff has claimed damages in the sum of Rs. 36,98,406/- and the suit has been valued at Rs. 36,98,406/- for the purposes of Court-fee and Jurisdiction and rightly so. The defendants have failed to show that the suit has not been properly valued as alleged. This issue is accordingly decided against the defendants.
Issue No. 1661. The objection taken by defendants Nos. 4 to 5 is that the suit is liable to be dismissed under Order VII, Rule 11(d) of the Code of Civil Procedure. Issue regarding limitation has already been held in favour of the plaintiff. It has neither been clarified in the pleadings nor was argued as to under what other provision's of law this suit is barred. The suit does not appear to be barred by any law. Therefore, this issue is held against defendants Nos. 4 and 5.
Issue No. 17 Relief
62. In view of the findings given above a decree for Rs. 7,17,417/- (i.e. Rs. 6,40,551/-plus Rs. 76,866/- interest thereon from 2-8-1995 to 31-7-1997) is passed in favour of the plaintiff and against defendants Nos. 1 to 3 with pendente lite and future interest at the rate of 6% per annum on Rs. 6,40,551/- till the date of realisation thereof with proportionate costs of the suit. The suit against defendants Nos. 4 and 5, however, is dismissed.