REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5397 OF 2010
M/S NATESAN AGENCIES (PLANTATIONS) …….APPELLANT(S)
VS.
STATE REP. BY THE SECRETARY TO
GOVERNMENT ENVIRONMENT AND
FORESTS DEPARTMENT ……. RESPONDENT(S)
JUDGMENT
Dinesh Maheshwari, J.
Introduction
1. In this appeal by special leave, the plaintiff-appellant, said to be a
partnership firm, has called in question the common judgment and decree
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 High Court of Judicature
at Madras, while allowing the appeal filed by the defendant-State and while
dismissing the appeal filed by the plaintiff-appellant, has reversed the
Signature Not Verified
judgment and decree dated 15.10.2001, as passed by the learned Single
Digitally signed by
DEEPAK SINGH
Date: 2019.08.20
17:22:09 IST
Reason:
1
Judge in C.S. No. 561 of 1998; and has dismissed the appellant’s suit for
recovery of damages.
1.1. This matter, arising out of the aforesaid suit for recovery of damages,
carries a peculiar and chequered history of its own, with assortment of
several undisputed actual facts, a few disputed facts, and varied rounds of
litigations. In a brief outline of the subject matter, it may be noticed that the
plaintiff-appellant had allegedly taken certain parcels of land 1 on lease
(initially for a period of 5 years in the years 1971-1972 and later, for a period
of 25 years in the years 1977-1978) from its owner Sri Nanamamalai Jeer
Mutt, Nanguneri2 for plantation and co-related purposes. The case of the
plaintiff-appellant has been that by virtue of a notification dated 06.03.1976,
as issued by the Government of Tamil Nadu, the land in question was
proposed to be included in a wild life sanctuary under the Wild Life
(Protection) Act, 19723 and several propositions for award of compensation
were actively considered by the authorities concerned, who were also under
the mandate of the High Court to finalise the award of compensation at the
earliest. The grievance of the plaintiff-appellant has been that on one hand,
the land in question was not allowed to be used because of the proposal for
its acquisition for wild life sanctuary and on the other hand, no amount of
compensation was paid; and then, the defendant-respondent chose to
1 Comprising field Nos. 805/1, 805/3, 805/4, 806, 807,808 809 in Kalakkadu Village and
field No. 495 in Malayadipudur Village (Nanguneri Taluk, Tirunelveli District), in all
admeasuring 197.36 acres – Hereinafter referred to as ‘the land in question’ or ‘the subject
land’.
2 Hereinafter referred to as ‘the Mutt’.
3 Hereinafter referred to as ‘the Act’ or ‘the Act of 1972’.
2
exclude the land in question from the limits of the said wild life sanctuary by
way of an order issued on 19.11.1993. The plaintiff-appellant and the Mutt
challenged the said order dated 19.11.1993 in the High Court by way of a
writ petition. On 13.09.1995, a learned Single Judge of the High Court
allowed the writ petition so filed by the appellant and the Mutt but the
Division Bench, in its judgment and order dated 18.09.1997, set aside the
order so passed by the Single Judge and dismissed the writ petition while
upholding the powers of the State Government to withdraw from the
notification in question. The Division Bench, however, left it open for the writ
petitioners ‘to take appropriate civil action for quantifying their 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 the Limitation Act for excluding
the period during which they had been prosecuting the matter in this Court’.
Thereafter, the plaintiff-appellant instituted the civil suit in question against
the defendant-respondent, seeking recovery of damages to the tune to Rs.
1,31,95,000/- together with interest @ 18% per annum, for having been
allegedly deprived of the use of the land in question on the proposition for
acquisition. A learned Single Judge of the High Court, by way of the
judgement and decree dated 15.10.2001, partly decreed the suit, holding
the plaintiff entitled to a sum of Rs. 86,88,000/- together with interest @ 9%
per annum from the date of suit until realisation. However, in the appeal
preferred by the defendant-State, the Division Bench of the High Court
found no case for award of any damages to the plaintiff and, by its
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impugned judgment and decree dated 26.02.2007, reversed the decree of
the learned Single Judge and dismissed the suit. Hence, the plaintiff-
appellant has preferred this appeal.
The relevant background and factual matrix
2. The relevant background and factual aspects of the matter could 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 the
purpose of cultivating commercial crops such as tea, coffee and cardamom
over 80 acres of the total available land. The appellant has alleged that the
land in question was given on lease on 15.11.1971 but the registered lease
deed in that regard was executed by the Mutt on 01.07.1972, 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 Section 18(1) of
the Act of 1972, the Government of Tamil Nadu stated its approval of the
proposal of Chief Conservator of Forests to notify Kalakkadu Reserve
Forest in Tirunelveli District as a sanctuary for the protection and
development of wild life therein. This allegedly included the aforesaid
197.36 acres of land leased to the appellant.
2.3. On 23.03.1975 and on 17.09.1976, the appellant applied for clear
felling of trees in 10 acres of land out of the said 197.36 acres but excluding
the 80 acres already under plantation. However, the District Collector, by his
4
communication dated 16.11.1976, refused to grant such a permission to the
appellant on the grounds that the land in question was demarcated under
the said notification for the purpose of wild life sanctuary; and felling of trees
may affect the soil conservation and moisture conservation measures in the
locality.
2.4. Thereafter, on 14.07.1977, the District Collector issued a
proclamation under Section 21 of the Act of 1972 specifying the limits of the
sanctuary and requiring any person having any right to file the claim in 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 in this
proclamation dated 14.07.1977.
2.5. The appellant would further submit that when the land in question
was not included in this proclamation dated 14.07.1977 and the lease
period under the aforesaid lease deed dated 01.07.1972 had expired on
30.06.1977, the Mutt was requested to execute a long-term lease in favour
of the appellant for developing the plantation in a better manner. According
to the appellant, on 20.03.1978, the Mutt granted a fresh long-term lease of
the land in question in its favour for a period of 25 years (from 01.07.1977 to
30.06.2002) after obtaining permission of the Commissioner, Hindu
Religious and Charitable Endowments and after consultation with the
District Collector. We shall refer to the question relating to the alleged
permission of the said Commissioner hereafter a little later.
4 Hereinafter referred to as ‘the Rules of 1975’.
5
2.6. Continuing with the factual matrix, it is noticed that on 28.08.1978, the
Collector issued another proclamation under Section 21 calling upon the
persons claiming any right in or over the land covered thereunder to prefer a
written claim within two months under the Rules of 1975. On 31.08.1978,
the Collector issued the same proclamation in Tamil language, while also
stating that the earlier notification dated 14.07.1977 was cancelled.
According to the appellant, the land in question came to be included within
the proposed sanctuary only under these notifications issued in the year
1978.
2.7. After the notifications aforesaid, various proceedings and exchange of
communications took place where on one hand, the appellant and the Mutt
made several attempts to get the subject land excluded from the proposed
sanctuary and on the other hand, on 24.06.1984, the appellant filed a
written statement in the award inquiry along with the claim in Form No. 8
under the Rules of 1975, claiming compensation to the tune of Rs.
41,36,866/-. The authorities concerned also exchanged various inter-
departmental communications for the purpose of assessment of the amount
of compensation. All these proceedings and communications need not be
elaborated herein but it may be noticed that on 01.08.1985, the Collector
rejected an application filed by the appellant for registration of Cardamom
Estate in the land in question on the ground that the land was to be
acquired for the purpose of setting up of the wild life sanctuary. Thereafter,
on 23.03.1990, the Collector addressed a communication to the Special
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Commissioner and the Commissioner of Land Administration that the
compensation together with solatium and interest for the land belonging to
the Mutt was estimated at Rs. 72,98,661/-. On 03.12.1990, the said Special
Commissioner reduced the total estimated compensation to Rs. 65,06,453/-
and requested the Government to pass appropriate order as regards the
application of the relevant provisions of the Land Acquisition Act, 1894 5 to
the present case. Further to this, on 05.03.1991, the Principal Chief
Conservator of Forests informed the concerned Secretary to the
Government about the expected liability of interest in relation to the award
to be made in relation to the land in question.
2.8. While the proceedings aforesaid remained pending but no award had
been made, the Mutt chose to challenge the proposal for acquisition 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 as the fourth respondent in
that writ petition. The respondent-State stated in its counter affidavit in the
said writ petition, inter alia, that ‘the State Government had applied their
mind to the requirement of making publication under Section 18 of the said
Act and found it was valid and had effected the publication in question
under Section 18 of the Central Act 53 of 1972’; and that it was ‘not
possible to exclude the lands of the petitioner from the limits of the
Sanctuary. It will defeat the very purpose of creating the Sanctuary’.
5 Hereinafter referred to as ‘the Act of 1894’.
7
2.9. The said writ petition filed by the Mutt was, however, dismissed by 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 apply to the
proceedings in question and that if an illusory compensation was awarded,
the writ petitioner shall have the right to challenge the same. The Mutt also
preferred an intra-court appeal but, on 20.01.1992, the same was dismissed
as withdrawn by the Division Bench with the direction to the Collector to
expedite the proceedings for making the award of compensation.
2.10. Thereafter, on 09.03.1992, a fresh notice for award inquiry was
issued by the Collector under Sections 9(3) and 10 of the Act of 1894. In
response, the Mutt sent a letter claiming compensation to the tune of Rs.
92,81,346/-. On the other hand, it appears from the submissions made that
on 30.03.1992, the appellant filed the statement claiming compensation to
the tune of Rs. 1,09,60,000/- for the market value of coffee, cardamom and
tea plantations; Rs.96,00,000/- towards anticipated development of
cardamom; and another Rs. 96,400/- towards the cost of the building
constructed. The appellant also claimed 30% solatium and 12% p.a.
interest from the date of notification until the date of award and 15% p.a.
future interest on the total amount of compensation.
2.11. On 16.04.1992, the award proceedings were completed and a draft
award was forwarded by the District Revenue Officer to the Special
Commissioner. However, since the respondent did not take further steps for
making the award, another writ petition, being W.P. No. 6931 of 1993, was
8
preferred, jointly by the Mutt and the appellant, seeking directions for early
making of the award. This writ petition was disposed of 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 of receipt of the order6.
2.12. After passing of the aforesaid order dated 11.08.1993, when the
matter was being processed by the authorities concerned, the Chief
Conservator of Forests (WL) and Chief Wildlife Warden, suggested on
25.08.1993 that the proposed acquisition of the land in question may be
dropped in view of the huge cost involved and acquisition of the land in
question being not necessary. With reference to these facts, an application
was moved on behalf of the respondent before the High Court on
21.09.1993, seeking six weeks’ further time to enable the Commissioner,
Land Administration to issue suitable directions to the Collector. It appears
that 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 the purported
invocation of the powers under clause (a) of sub-section (2) of Section 24 of
6 The learned Single Judge directed in the order dated 11.08.1993 thus:
“Hence I direct the competent authority, viz., Special Commissioner and
Commissioner for Land Administration to take into consideration the
valuation proposals sent in Collector’s Office reference K2/1498/83 dated
20.6.1990 and 12.9.1990, and approved by the Special Administration and
due representations of the 2nd petitioner dated 10.7.92 and the
representations of the 1st petitioner dated 19.10.1992 and further
representations of the 1st petitioners, if any, and the proposal of the District
Collector Tirunelveli, the 2nd respondent herein and pass appropriate orders
within four weeks from the date of receipt of this order from the Court.”9
the Act of 1972, excluded the land in question from the limits of the wild lifesanctuary. This order had the effect of releasing the land in question from
the proposed acquisition and thereby, obviating the necessity of making the
award of compensation.
2.14. The aforesaid order dated 19.11.1993, as issued by the Collector,
Tirunelveli, had been the bone of contention in this matter. According to the
appellant, the Collector having earlier taken the decision to acquire the land
in question, compensation was required to be paid; and the authorities
passed on dictates to the Collector to issue the said order dated 19.11.1993
only in order to circumvent the order passed by the High Court. The
appellant has particularly referred to the letter dated 12.11.1993 by the
Deputy Secretary, Forest Department to the Special Commissioner, wherein
it was stated that the proposed wild life sanctuary could not meet the
exorbitant cost of land acquisition and this acquisition was not required on
priority. It is submitted that pursuant to this communication dated
12.11.1993, the Special Commissioner sent the letter dated 17.11.1993 to
the Collector, Tirunelveli to exclude the land in question from the limits of the
proposed sanctuary under clause (a) of sub-section (2) of Section 24 of the
Act of 1972; and thus the Collector issued the questioned order dated
19.11.1993.
2.15. The said order dated 19.11.1993 was challenged jointly by the 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 contempt petition (No. 340
10
of 1994) complaining of disobedience of the orders earlier passed by the
High Court. On 13.09.1995, a learned Single Judge of the High Court
allowed the writ petition and quashed the said order dated 19.11.1993; and
also held the officers concerned guilty of contempt and imposed a fine of
Rs. 1,000/- on each of them. However, the order so 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, that was allowed by the Division
Bench of the High Court by its judgment dated 18.09.1997 but with several
remarks and observations against the respondent-State and while leaving it
open for the writ petitioners to approach the civil Court for recovery of
damages.
2.16. The observations made by the Division Bench in its judgment dated
18.09.1997 have formed the basis of the claim made by the appellant in the
civil suit leading to this appeal. Having regard to the subject matter of this
appeal and the questions involved, pertinent it would be to take note of the
observations and findings in the judgment dated 18.09.1997 in the requisite
details.
2.16.1. In its judgment dated 18.09.1997, the Division Bench in the first
place observed that when the Collector had already taken the decision to
acquire the land in question and to pay compensation, there was 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 rejected the
argument of the Government Pleader that withdrawal from the proceeding
11
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 the General Clauses
Act, 18977 was applicable and could have been invoked by the
Government. However, even in this regard, the Division Bench observed
that the entire action of the officers of the Government, right from conceiving
the project in question to the late stage backing out, had been thoughtless,
casual and perfunctory.
2.16.2. Even while making such remarks that the impugned actions had
been thoughtless and the Government must suffer the consequences, the
Division Bench of the High Court observed that the appellant and the Mutt
had no right to insist on the Government to complete the acquisition
proceedings and to proceed with the project as a sanctuary. After such
remarks and observations, the Division Bench acknowledged the power of
the Government to withdraw from the notification and to refuse an award
under the Act of 1894. However, the Division Bench further proceeded to
observe that the Mutt and the appellant had a valid case for claiming
damages but in that regard, the damages suffered shall have to be proved
in the Court of law. It was, thus, left open for the Mutt and the appellant to
take appropriate civil action for quantifying the damages. The Division
Bench also left it open for them to seek exclusion of the period during which
they had been prosecuting the matter in the High Court.8
7 Hereinafter referred to as ‘the General Clauses Act’.
8 These observations of the Division Bench of the High Court had been as under: –
12
2.16.3. With the aforementioned observations and findings, the Division
Bench of the High Court concluded that the decision of the Government to
exclude the land in question from the limits of proposed sanctuary was
sustainable by virtue of Section 21 of the General Clauses Act and, while
allowing the appeal, proceeded to dismiss the writ petition while leaving it
open for the writ petitioners, including the present appellant, to agitate their
rights in the appropriate forum. In view of this decision, the contempt
proceedings were dropped.9
“20. We do not propose to say that the Government is
blemishless. On the otherhand, the Government had acted
thoughtlessly both at the stage of the notification under section 18
and at the stage of withdrawal from the notification. The
Government must suffer the consequences of their action, both
issuing declaration under section 18 and in committing inordinate
delay in passing the award and ultimately withdrawing from the
notification. But the damages suffered by the respondents on
account of the Government’s acts of commission and omission has
to be proved in a Court of law. The respondents have no doubt, a
valid case against the Government for their acts of commission
and omission. The question is what is the actual remedy of the
respondents. The maxim ubi jus ibi remedium (where there is a
right, there is a remedy), is no doubt applicable on the facts of the
present case. But, we are only pointing out that the remedy of the
respondents is elsewhere. They have no right to insist on the
Government completing the acquisition proceedings and
proceeding with the project as a sanctuary. On the facts and
circumstances of the case, we concede the power of the
Government to withdraw from the notification and refuse to pass
an award under the Land Acquisition Act. We keep it open to the
respondents to take appropriate civil action for quantifying their
damages and for this purpose, it is certainly open to them to rely
on the provisions of the Limitation Act for excluding the period
during which they had been prosecuting the matter in this Court.”
9The Division Bench concluded on the matter as follows: –
“23….We are construing the letter of the Government in Letter
No. Ms. No. 377 EDF dated 12.11.1993 and the consequential order
of the Special Commissioner and Commissioner of Land
Administration in R.O. C. No. h2/34854/92 dated 17.10.1993 as
constituting the decision of the Government to withdraw from the
inclusion of the lands of the respondents in the sanctuary, and the
13
2.17. In order to complete the chronicle of background, it may also benoticed that the present appellant alone preferred a petition for Special
Leave to Appeal before this Court against the said judgment dated
18.09.1997, which was dismissed in limine on 23.02.1998.
2.18. Only after conclusion of the aforesaid litigation with dismissal of the
petition for Special Leave to Appeal by this Court on 23.02.1998 that 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 action for
recovery of damages, it would be apt to summarise the material facts 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, 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 of the notification dated
06.03.1976; and the attempts on the part of the Mutt and the appellant to
consequential acquisition of the said lands. We are exercising our
discretionary powers under article 226 of the Constitution of India in
holding that in the above two letters, the Government had taken a
categorical decision to withdraw from the notification and the
consequential acquisition. Therefore, we do not propose to take the
order of the Collector dated 19.11.1993 for any purpose, as it simply
follows the directions of the Government. Since the notification and
declaration was issued by the State Government under section 18
of the unamended Wild Life Protection Act, it is the government and
the government alone which can cancel or modify the notification by
invoking the power under section 21 of the General Clauses Act. It
is in this view of the matter, we uphold the decision of the
Government to exclude 197.36 acres of land, belonging to the
respondents and another extent of 148.55 acres from the limits of
the proposed sanctuary. as perfectly in order and within the powers
of the Government. Consequently, the prayer sought for in W.P. No.
21721 of 1993 cannot be granted and the writ petition will stand
dismissed. The appeal is allowed in the above manner, leaving it
open to the respondents to agitate their rights in an appropriate
forum. Contempt appeal No. 6 of 1995 is also allowed. There will
be no order as to costs.”
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get the land in question excluded from the sanctuary did not meet with
success. Though the matter relating to the award of compensation for
acquisition of the subject land was considered by the authorities concerned,
who were also directed by the High Court to finalise the award at the
earliest but, instead of making any award, the Collector issued the order
dated 19.11.1993, excluding the land in question from the limits of wild life
sanctuary. The Mutt and the appellant now felt aggrieved of the proposition
for such exclusion of the subject land from the limits of the wild life
sanctuary and again approached the High Court 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 the writ petition so filed by the Mutt and the
appellant. However, the Division Bench of the High Court, in its judgment
dated 18.09.1997, did not approve of the order so passed by the learned
Single Judge and dismissed the writ petition while leaving it open for the
Mutt and the appellant to approach 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 order dated
19.11.1993 annulled but, with reference to the observations made and the
liberty granted by the Division Bench of the High Court in its judgment dated
18.09.1997, the appellant took up the action for claiming damages from the
15
respondent-State. In this regard, the appellant served a notice under
Section 80 of the Code of Civil Procedure on 01.03.1998 that did not evoke
any response. Hence, the appellant instituted the civil suit for recovery of
damages on 08.06.1998. The civil suit was founded on the facts referred
hereinabove and on the grounds that from the first day of the proceedings
starting in the year 1976 and until dropping of the same in the year 1993,
the appellant was debarred from utilising the land in question; and that due
to pendency of litigation in the High Court from the year 1993 and until
18.09.1997, the appellant could not file the suit for 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 was maintainable and was not barred
by limitation.
3.1. As regards the measure and quantum of damages, the appellant
referred to the alleged loss of earnings @ Rs. 2.31 lakhs per annum on the
basis of valuation worked out in the award inquiry for the very same land.
The appellant also claimed interest at the rate of 18% per annum and yet
further claimed the cost of re-plantation and rearing operations as also the
loss of profit for a period of 3 years that was likely to be taken for the crops
to yield the fruits. The appellant claimed the total loss of earning for 22
years from 06.03.1976 and other components of loss as follows: –
Rs.
“(a) Total on loss for 22 years
(Rs.2.31 lacs xx 22 years) 50.82 lakhs
(b) Interest on loss of income for
16
22 years 70.13 lakhs
(c) Cost of replantation and rearing
operations for 3 years @ Rs.5000/-
per acre for 75.52 acres (restricted to) 7.00 lakhs
(d) Repairs to Factory/Office and Labour
Sheds 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)
(the period that would be taken for
re-planting the rearing plantation
and to put them to yield)
(restricted to) 3.00 lakhs
———————-
Total 1,31,95,000/-.”
4. In the written statement, it was contended on behalf of the defendant-
respondent that the plaintiff was not entitled to claim any damages; that
there was no agreement between the plaintiff and the defendant; and the
defendant did not cause any loss to the plaintiff. It was alleged that no
private land was included in the notification under Section 18(1) of the Act of
1972 but Form No. 8 was filed by the appellant claiming compensation and
thereby, voluntarily offering the private land for acquisition. It was alleged
that subsequent to the offer so made, a proposal was sent to acquire the
private property lying within the proposed sanctuary area but the proposal
was dropped as the expenditure to the Government was an exorbitant one.
It was also contended that in the absence of any express acceptance from
the defendant to acquire the land, there was no completed contract between
the plaintiff and the defendant; and when by way of the said letter dated
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17.11.1993, the Collector, Tirunelveli was requested to drop the proposal of
acquiring the 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 the action of
the Government in dropping the proposal to acquire did not affect the status
of the land in question; that the claim of the plaintiff that he could not realize
anything from the lands was not correct; and that the notification for
proposed sanctuary could not have affected the possession and enjoyment
of the land by the plaintiff. It was asserted that the subject land was never
taken over or controlled by the Forest Department and neither the owner
nor the lessee was prevented from enjoyment of the property, who
remained in actual possession and enjoyment thereof. It was yet further
submitted that even if the subject land was assumed to be under the control
of Forest Department, the plaintiff had no right or claim against the
defendant for the reason that the plaintiff was only a lessee of the Mutt and
there was no privity of contract between the plaintiff and the defendant. The
defendant-respondent submitted that the land owner had not come forward
with any claim since there was no loss caused to them; and the plaintiff, if
having any right under the law, was required to seek his remedy only with
the lessor and not against the defendant.
4.2. The defendant-respondent also submitted that even if the land in
question was notified, the cause of action, in any case, accrued to the
plaintiff on 19.11.1993 and, therefore, the suit for damages was barred by
18
limitation. The defendant further submitted that the Division Bench, while
allowing the writ appeal (by its judgment dated 18.09.1997), though had
kept it open to the plaintiff to rely on the provisions of the Limitation Act,
196310 for excluding the period during which the matter was pending in the
Court but, the Limitation Act was of no assistance to the plaintiff inasmuch
as what was being prosecuted earlier was a challenge to the proposal of
acquisition and then for compensation for the alleged take-over of the land
in question whereas, what was being prosecuted in the suit was the claim
for damages for the alleged loss of earnings from 06.03.1976. The
defendant also raised the objections of want of territorial jurisdiction and
non-joinder of necessary parties.
5. On the pleadings of parties, the Trial Court framed the following
issues for trial:-
“1. Whether this court has territorial jurisdiction to try
this suit?
2. Whether the suit is barred by limitation?
3. Whether the suit is bad for non-joinder of
necessary parties?
4. Whether the suit land was notified as forming part
of the Wildlife Sanctuary?
5. Whether the plaintiff is entitled to damages and if
so what amount?
6. Whether the plaintiff is entitled to interest?
7. Whether there is any privity of contract between the
parties to claim compensation?
8. To what relief?”
6. It appears that in the trial, partner of the plaintiff was examined as
PW-1 and the documents Exhibits P-1 to P-42 were marked through him.
The defendant did not adduce any oral or documentary evidence.
10 Hereinafter referred to as ‘the Limitation Act’.
19
The Single Judge decreed the suit
7. After having heard the parties, the learned Single Judge of High
Court, dealing with original suit, proceeded to determine the issues by way
of the judgment dated 15.10.2001.
7.1. The learned Single Judge rejected the objections relating to the
territorial jurisdiction and non-joinder of necessary parties and decided issue
Nos. 1 and 3 in favour of the plaintiff. As regards issue No. 2 relating to
limitation, the learned Judge referred to the observations of the Division
Bench in the judgment dated 18.09.1997 and to the contentions of the
parties and then, observed that he would disagree with the defendant and
had no hesitation in holding that the suit was filed within time. Hence, issue
No. 2 was also decided in favour of the plaintiff.
7.2. The learned Single Judge, thereafter, took up issue Nos. 4 and 5
together for determination and, in this regard, referred to the past
proceedings commencing from the notification dated 06.03.1976 and
various propositions for assessment of the amount of compensation for the
proposed acquisition. The learned Judge extensively referred to the rival
contentions and to a few documents, including the letter dated 28.05.1987
(Ex. P-17) by the Collector, Tirunelveli to the Deputy Secretary to the
Government stating that the land in question was developed from 1972 to
1978 and cultivated with plantation crops but after the area was declared as
wild life sanctuary, normal plantation was not allowed due to the land
20
acquisition proposals. The learned Judge also referred to the letter dated
23.03.1990 (Ex. P-21) by the Collector, Tirunelveli to the Special
Commissioner and to the proceedings dated 03.12.1990 (Ex. P-22) of the
Special Commissioner which were carried out for the purpose of
assessment of the amount of compensation. Ultimately, the learned Judge
accepted the submissions of the plaintiff that loss of earnings was
calculated by the officers concerned at the rate of Rs. 2.31 lakhs per
annum; and held the plaintiff entitled to this amount for 22 years i.e., a sum
of Rs. 50.82 lakhs. The learned Judge though rejected the other claims of
the plaintiff but allowed another sum of Rs. 1 lakh towards repairs of factory
office. In this manner, the plaintiff-appellant was held entitled to the total
sum of Rs. 51.82 lakhs towards damages. On issue No. 6, the learned
Judge awarded another sum of Rs. 35.06 lakhs being interest @ 6% p.a.
from 06.03.1976 to 18.09.1997 and also held the plaintiff entitled to the
interest @ 9% p.a. from the date of filing until realisation. Issue No. 7 was
separately decided in favour of the plaintiff in view of the findings on issue
Nos. 4 and 5.
The Division Bench reversed the decree and dismissed the suit
8. Being aggrieved by the decree so passed by the learned Single
Judge for damages and interest, the defendant-respondent preferred an
appeal, being OSA No. 193 of 2002, before the Division Bench of the High
Court. On the other hand, the plaintiff-appellant also felt aggrieved by the
part of decree of the learned Single Judge insofar as its claim was not
21
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 Division Bench in its
impugned judgment and decree dated 26.02.2007.
8.1. The Division Bench of the High Court took note of all the relevant
background aspects (as noticed hereinbefore) and the rival contentions and
thereafter analysed the matter with reference to the law applicable. In this
regard, the Division Bench in the first place extracted in extenso the
relevant provisions of the Act of 1972 and examined two core questions: (1)
as to whether the appellant could have acquired any right qua the land in
question on the basis of the alleged second lease for 25 years after
issuance of the notification under Section 18(1) of the Act; and (2) if the
appellant at all had any right in the land in question, as to whether the same
had been infringed in the manner that it may give any cause to claim
damages. The Division Bench also referred to the evidence adduced on
record and answered the material questions against the plaintiff-appellant,
inter alia, in the following:-
“21. In the present case, the facts which have been
hitherto culled out, indicate that initially there was a
declaration of a sanctuary under Section 18(1) of the
Act, but the process of acquisition was aborted. Section
20 contemplates that after issuance of such notification
under Section 18, “… no right shall be acquired in, on or
over the land comprised within the limits of the area
specified in such notification, except by succession”. As
already analysed the provisions indicate that mere issue
of notification under Section 18 does not debar the
owner of any property in exercising his normal rights
22
and similarly such right can be exercised by his heir.
The embargo envisaged under Section 20 is relating to
inter vivos transfer of any right in or over the land
comprised within the area. Therefore, the plaintiff as an
existing lessee for five years and the original owner
were as such not debarred from exercising any right.
However, it is apparent from the admitted facts that the
subsequent lease for 25 years was executed in favour
of the plaintiff after issuance of notification under
Section 18. Since the plaintiff claims right on the basis
of subsequent lease for 25 years, which was admittedly
executed by the original owner after notification under
Section 18, it is doubtful whether the plaintiff had
acquired any right at that time, at least against the
State. At any rate, even assuming that the plaintiff had
any right as a lessee, there was no statutory embargo
debarring the plaintiff from exercising his rights.
*** *** ***
24. In the present case, there is nothing on record to
indicate that in respect of the area claimed, the plaintiff
and the original owner had ever been dispossessed and
prevented from exercising any right, save and except
the refusal to grant permission for felling the trees way
back in 1976. It is of course true that there are several
correspondence on record which indicate that for
ascertaining the compensation, the Collector and other
authorities were asking for allotment of higher amount
for the purpose of finalising the compensation and
award, but, there is no material on record to indicate
that the award proceedings, so far as the plaintiff and
the land owner are concerned, had ever been finalised.
25. It is of course true that the letter Ex.P-17 dated
28.5.1987 written by the Collector to the Deputy
Secretary to the Government recited that the lands of
the plaintiff were declared as wild life sanctuary and its
development activities had been stopped. However,
this communication between two functionaries of the
Government should not be construed as denying the
original owner or the plaintiff any particular right. There
is nothing on record to indicate that because of various
steps taken under the Act, the original owner and the
plaintiff were prevented from going inside the forest and
23
from collecting the usufructs. If under any
misunderstanding relating to scope of the notifications
and declarations already issued the plaintiff stopped its
activities, it was the plaintiff’s own misfortune and it
cannot be said that the plaintiff was prevented in any
unlawful manner by the State in exercising its lawful
right. Merely because various correspondence indicate
that the lands were covered under notification issued
under Section 18, it cannot be said that the original
owner and the plaintiff had been deprived. The only
direct document relating to refusal to grant clear fell
trees within 10 acres has already been analysed and
that factor does not give rise to a cause of action for
claiming an astronomical sum as claimed by the plaintiff.
Since the plaintiff was not allowed to fell the trees, it can
be well concluded that the trees are still available to be
exploited after the area was excluded. However, from
the above document alone, which was inter-
departmental communication made in the year 1987, it
cannot be construed that the original owner and the
plaintiff had in fact been prevented from exercising its
rights.
*** *** ***
27. Ex.P-14 relates to the prayer for clear felling trees
in 10 acres. That cannot form basis for claiming loss at
the rate of Rs.2,31,000/- per annum for 22 years. In the
various writ petitions and the writ appeals, which had
been filed, we do not find any allegation that at any point
of time the original owner and the plaintiff had been
prevented from exercising their normal rights. We fail to
understand as to why the plaintiff should be paid
compensation by way of damages unless there is any
unlawful act on the part of the defendant. Merely
because the plaintiff misunderstood the scope of
declaration under Section 18 of the Act or the fact that
some enquiries were pending, is not a ground to award
damages.”
8.2. The Division Bench of the High Court also examined the purport and
effect of the previous judgment dated 18.09.1997 and pointed out that the
24
observations therein did not mean that the rights and liabilities of the
parties had been decided and only quantification of the amount of damages
was to be made. The Division Bench held, in the following, that the plaintiff-
appellant, having failed to plead and prove the specific case of unlawful
activity on the part of the State or its 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 open to the aggrieved party to seek
for adequate compensation. Such observations cannot,
however, construed to mean that rights and liabilities of
the parties had been decided and only quantification is
to be made. On the other hand, it was only made clear
that even though the Government cannot be forced to
acquire the land for the purpose of sanctuary, it was
open to the aggrieved party to pursue his remedy
obviously in accordance with law. If the person sustains
any injury on account of any unlawful activity of the
State or any of its official, it was for the plaintiff to clearly
allege and prove such unlawful activity in order to claim
any compensation by way of damages. Obviously the
plaintiff does not have right to receive any compensation
as envisaged under the Act. If he has to receive any
amount on account of any unlawful activity on the part of
the State or its official, a specific case has to be made
out. In our considered opinion, in the present case, no
such specific case has been pleaded, far less proved.”8.3. Next, the Division Bench of the High Court referred to the question of
limitation and, while referring to Section 14 of the Limitation Act, indicated its
prima facie doubt if the period during which the litigation remained pending
in the High Court could be excluded but left the matter at that, essentially for
25
the reason that the claim of the plaintiff had been rejected on merits. TheDivision Bench observed:-
“29…. Now the plaintiff is claiming damages on account
of the fact that the area has been excluded from the
sanctuary and thereby it has sustained damages,
obviously the cause of action arose on that date i.e.,
19.11.1993. The writ petition, which was filed was for
quashing such order, was obviously for a different relief.
The writ petition was dismissed on merit and not for
want of jurisdiction. Prima facie we have doubt as to
whether the period during which such litigations
remained pending in the High Court can be excluded
under Section 14 of the Limitation Act. However, since
we have negatived the claim of the plaintiff on merits, it
is not necessary to delve further into such question.”8.4. Lastly, the Division Bench also rejected the claim of the plaintiff for
interest and set aside the findings of learned Single Judge on issue No. 6.
8.5. In view of its findings on the relevant issues, the Division Bench of the
High Court allowed the appeal filed by the State and dismissed the appeal
filed by the plaintiff. Accordingly, the suit filed by the plaintiff-appellant was
dismissed. Hence, this appeal.
Rival contentions:
9. Assailing the impugned judgment dated 26.02.2007, the learned senior
counsel for the appellant has painstakingly taken us through all the
background aspects of the matter and the relevant provisions of the Act of
1972; and has strenuously contended that the Division Bench of the High
Court has erred in law as also on facts in reversing the considered decision
26
of the learned Single Judge and in dismissing the suit filed by the appellant.
The learned senior counsel has referred to the jurisprudential concepts of
ownership and property; and has contended that the lease hold rights on
the subject land and plantations thereon had been the valuable property of
the appellant; and deprivation of the usufruct of the subject land had been in
direct violation of the appellant’s right to property for which, the appellant is
entitled to claim damages. The learned counsel has particularly referred to
the letter dated 28.05.1987 by the Collector to the Deputy Secretary to the
Government in Forest and Fisheries Department stating and acknowledging
the facts that the land was developed by the appellant from the years 1972
to 1978; and the appellant was not allowed to continue with his work on the
land in question after declaration of the area as wild life sanctuary due to
the land acquisition proposal. The learned counsel has contended that
there being clear admission of the fact that the appellant was indeed
deprived of using the land in question and there being no evidence to the
contrary, the learned Single 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 Bank v. Andhra Bank Financial Services Ltd. Ors.: (2006) 6
SCC 94 to submit that the admission being the best evidence against the
defendant, the suit was rightly decreed and the Division Bench has erred in
reversing the decree so passed.
27
9.1. The learned senior counsel has further contended that in terms of the
unamended provisions of the Act of 1972, once a land was notified under
Section 18, even the land owner was prevented from using the land and he
was required to wait until conclusion of the proceedings. The restrictions
until the pendency of the proceedings, according to the learned counsel,
had resulted in direct violation of the appellant’s right to use his property;
and in this case, where the subject land was unnecessarily sought to be
acquired and then, to avoid compensation, the same was excluded after
more than two decades, the appellant is entitled to claim damages for the
loss suffered during all this time when the land could not be put to the
requisite use. The learned counsel would submit that the State Government
itself had admitted that the annual yield for the land in question could not be
assessed as the appellant was prevented from carrying on any plantation
activities and, therefore, the observations of the learned Single Judge, that
the appellant was debarred from exercising his rights, were not incorrect
and the damages towards the loss suffered by the appellant had rightly
been allowed. Thus, according to the learned counsel, the impugned
judgment deserves to be set aside and that of the learned Single Judge
deserves to be restored. In support of these contentions, the learned
counsel has relied upon several decisions, including that in Union of India
v. Hari Krishan Khosla (Dead) by LRs: (1993) Supp (2) SCC 149, which
need not be dilated upon, for the reasons occurring infra.
28
9.2. As regards the quantum of damages, the learned senior counsel has
argued that when the appellant has suffered huge loss for having been
deprived of using the land in question and prevented from taking the
usufruct, the quantum of damages had rightly been assessed on the basis
of the loss of earnings assessed by the officers of the respondent-State
during the award inquiry; rather the assessment had been on the lower side,
looking to the loss and deprivation suffered by the appellant.
9.3. The learned counsel has also referred to the contentions sought to be
urged on behalf of the defendant-respondent with reference to Section 60 of
the Act of 1972 and has contended that such a plea was neither taken in the
written statement nor any issue was framed in that regard nor any such
contention was urged before the Single Judge and hence, the respondent
cannot take such a plea at the later stage. Without prejudice to these
submissions, the learned counsel has also contended that the principles of
the decision of this Court in Kasturi Lal v. State of U.P.: AIR 1965 SC 1039
are not of investing the State with a blanket or absolute immunity in relation
to the tortious act of its officers; and has particularly referred to the
decisions in N. Nagendra Rao Co. v. State of A.P.: (1994) 6 SCC 205
and Union of India v. Sancheti Food Products Ltd.: (2015) 15 SCC 447.
9.4. The learned senior counsel has also submitted that the suit filed by
the appellant was well within time and could not have been dismissed on
the ground of limitation. The learned counsel has referred to the
observations made and liberty granted by the Division Bench in its previous
29
judgment dated 18.09.1997. According to the learned counsel, in this case,
where the appellant was earlier prosecuting the matter in the writ petition
against the Collector’s order dated 19.11.1993 and in fact, the learned
Single Judge had allowed the writ petition and quashed the said order of
exclusion of the subject land from sanctuary, the said order ceased to be in
existence and got resurrected only after the Division Bench’s judgment
dated 18.09.1997. In this view of the matter and in view 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. The learned
counsel has referred to the decisions in Rameshwar Lal v. Municipal
Council, Tonk Ors.: (1996) 6 SCC 100 and Union of India v. Shring
Construction Co. (P) Ltd.: (2006) 8 SCC 18. The learned counsel has also
submitted that the suit having been instituted within one year from the date
of decision by the Division Bench, the requirement of Article 72 of the
Limitation Act is satisfied. Further, with reference to the decision in State of
A.P. v. Challa Ramkrishna Reddy Ors.: (2000) 5 SCC 712, the learned
counsel has argued that the action of the authority concerned being not
bona fide, the limitation of three years as per Article 113 of the Limitation Act
would apply. According to the learned counsel, viewed from any angle, the
suit is well within limitation.
10. Per contra, the learned senior counsel for the respondent-State has
argued that the appellant is not entitled to make any claim for damages
30
when the land in question was not acquired by the Government. The
learned counsel has contended that the land in question belonged to the
Mutt, and if at all the same was leased to the appellant, the only remedy
available to the appellant was against the Mutt and not the State as there
was no privity of contract between the State and the appellant. The learned
senior counsel has also raised the contention that in terms of Section 34 of
the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 11,
the alleged lease for a term of 25 years was null and void because such a
lease could not have been made unless sanctioned by the authority
concerned; and, in this regard, only a cursory statement was made by PW1
of having obtained permission but no documentary proof of the requisite
sanction was adduced.
10.1. The learned counsel has also contended that with the State and its
officers having exercised their powers under the statute i.e., the Act of 1972
in a legal manner, the suit for damages was not maintainable in view of the
provisions of Section 60 of the Act of 1972. The learned counsel has also
referred to the decision in Kasturi Lal’s case (supra) and submitted that the
land in question having been excluded from the proposed sanctuary on
relevant considerations, including the interest of public exchequer, the
impugned action would not lead to any cause for claiming damages. The
learned counsel has further referred to the statement of PW-1 in cross-
examination that he was never dispossessed and has contended that there
11 Hereinafter referred to as ‘the Tamil Nadu Act of 1959’
31
being no infringement of any of the legal rights, no case of claiming
damages by the appellant is made out.
10.2. On the question of quantum of damages, the learned counsel has
referred to the observations in the impugned judgment and submitted that
nothing of actual loss having been proved and the subject land having been
excluded from the sanctuary, the learned Single Judge had seriously erred
in quantifying the damages with reference to the alleged loss of earnings for
22 years without any reason or justification.
10.3. The learned counsel for the respondent has also strenuously argued
that even if it be assumed that the cause of action accrued upon issuance of
the exclusion order dated 19.11.1993, the suit in question was clearly
barred by limitation. According to the learned counsel, Section 14 of the
Limitation Act would not come to the rescue of the appellant because the
subject matter of the writ petition, which was filed jointly by the 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 damages was made in the said
writ petition. The requirements of Section 14 of the Limitation Act having not
been satisfied, the learned counsel contended, the period of prosecuting the
said writ petition cannot be excluded and, therefore, the suit is required to
be dismissed on the ground of limitation. The learned counsel has relied
upon the decision in Yeshwant Deorao v. Walchand Ramchand: AIR
1951 SC 16.
32
Preliminary Observations
11. We have bestowed thoughtful consideration to the rival submissions
and have examined the record of the case with reference to the law
applicable. Having examined the matter in its totality, we are undoubtedly of
the view that the suit filed by the plaintiff-appellant was barred by limitation
and even otherwise, the plaintiff-appellant had no case on merits to claim
damages from the respondent-State. In other words, the Division Bench of
the High Court has rightly allowed the appeal filed by the State and has
rightly dismissed the baseless suit filed by the appellant. Hence, this appeal
sans merit and deserves to be dismissed.
12. Before dilating on the questions relating to limitation and sustainability
of the appellant’s claim for damages, we may observe that the contentions
belatedly put forth on behalf of the defendant-respondent, as regards
validity of the alleged second lease in favour of the appellant on 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 of 1972 (as urged
before the Division Bench of High Court) cannot be said to be wholly without
substance. We would hasten to observe that the case of the appellant is not
being rejected on these grounds for the reason that such contentions were
not urged at the trial stage but, in the given set of facts and circumstances,
we feel rather impelled to make prima facie observations in regards to these
aspects.
33
12.1. As per the case of the appellant, the second lease deed dated
20.03.1978 in relation to the land in question was executed in its favour by
the Mutt for a period of 25 years. The self-explanatory provisions of Section
34 of the Tamil Nadu Act of 195912 declare any exchange, sale or mortgage
and any lease, for a term exceeding 5 years, of any immoveable property
belonging to any religious institution to be null and void unless sanctioned
by the Commissioner as being necessary or beneficial to the institution.
The first proviso to the said Section 34 of the Tamil Nadu Act of 1959 also
requires that before according sanction, the particulars relating to the
proposed transaction shall be published, while inviting objections and
suggestions; and all objections and suggestions received from the trustee or
any other persons having interest shall be considered. In the present case,
a vague statement was made by PW-1 that the permission of the
department concerned was obtained for the second lease for which, the
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 five years of any immovable property, belonging
to, or given or endowed for the purposes of, any religious institution shall be null and
void unless it is sanctioned by the Commissioner as being necessary or beneficial to
the institution:
Provided that before such sanction is accorded, the particulars relating to the
proposed transaction shall be published in such manner as may be prescribed,
inviting objections and suggestions with respect thereto; and all objections and
suggestions received from the trustee or other persons having interest shall be duly
considered by the Commissioner:
Provided further that the Commissioner shall not accord such sanction without
the previous approval of the Government.
Explanation.- Any lease of the property above mentioned though for a term not
exceeding five years shall, if it contains a provision for renewal for a further term (so
as to exceed five years in the aggregate), whether subject to any condition or not, be
deemed to be a lease for a period exceeding five years.
*** *** *** ”
34
Collector had made the recommendation but then, neither any documentaryproof of any such permission/sanction is adduced nor it is shown that the
proposed sanction was duly published and the objections/suggestions were
invited and considered. For want of necessary evidence on the validity of
second lease deed, prima facie it appears seriously questionable if the
plaintiff-appellant had at all acquired any right in the land in question by
virtue of the said lease deed, much less a right to claim damages from the
State. Having regard to the circumstances of the case, we are leaving the
aspect relating to the effect of Section 34 of Tamil Nadu Act of 1959 at that
only, essentially because we are satisfied that the said lease deed was even
otherwise impermissible and in any case, even on the basis of this
questionable second lease, the plaintiff-appellant has no right to claim
damages.
12.2. Secondly, by virtue of Section 60 of the Act of 1972 13, no civil suit in
relation to any action taken in good faith under the Act of 1972 is
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 other legal proceeding shall lie against any officer or other
employee of the Central Government or the State Government for anything
which is in good faith done or intended to be done under this Act.
(2) No suit or other legal proceeding shall lie against the Central
Government or the State Government or any of its officers or other
employees, for any damage caused or likely to be caused by anything which
is in good faith done or intended to be done under this Act.
*** *** *** ”
35
maintainable. Although, this aspect was not pleaded in specific terms onbehalf of the defendant-respondent nor any issue in that regard was struck
but, prima facie, we have reservations if any action of the present nature
could have been maintained against the respondent-State in the face of
Section 60 of the Act of 1972. Be that as it may, as observed, we are not
finally pronouncing on these aspects and are leaving the 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 for the bar
of limitation but, for the reason that the learned Single Judge decided this
issue in favour of the appellant and the Division Bench left it unanswered
because of merit dismissal of the suit, it appears appropriate to discuss the
question of limitation later and only after dilating on the merits of the claim
for damages by the appellant.
Claim for damages by the appellant – whether sustainable?
14. In order to determine the point as to whether the appellant’s claim for
damages is sustainable and the Division Bench of the High Court was not
right in dismissing the suit, a few basic questions, relating to the effect and
operation of the relevant provisions of the Act of 1972 concerning the
process of declaration of a sanctuary and acquisition of land for that
purpose need to be addressed to.
The relevant provisions of the Act of 1972
36
15. As regards the basic questions involved in this case, the provisions
contained in Chapter IV of the Act of 1972 having a direct bearing on the
subject matter need to be taken in comprehension; and the relevant
amendments therein also need to be noticed. Chapter IV of the Act earlier
carried the heading “SANCTUARIES, NATIONAL PARKS AND CLOSED
AREAS”, with division of the provisions under three sub-headings viz.,
“Sanctuaries”, “National Parks” and “Closed Areas”. 14 At the relevant point
of time, i.e., issuance of the two notifications dated 06.03.1976 and
28.08.1978, the provisions in Sections 18 to 24, 27 and 28 of the Act of
1972, under the sub-heading “Sanctuaries”, with which we are largely
concerned in this appeal, had been as under:-
“18. Declaration of sanctuary.- (1) The State
Government may, by notification, declare any area to be
a sanctuary if it considers that such area is of adequate
ecological, faunal, floral, geomorphological, natural or
zoological significance, for the purpose of protecting,
propagating or developing wild life or its environment15.
19. Collector to determine rights.- Whenever any
area is declared to be a sanctuary, the Collector shall
inquire into and determine, the existence, nature and
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 of 1991
with effect from 02.10.1991. The amended provisions of Section 18(1) read as follows :-
“18. Declaration of sanctuary. – (1) The State Government may,
by notification, declare its intention to constitute any area other than an
area comprised within any reserve forest or the territorial waters as a
sanctuary if it considers that such area is of adequate ecological, faunal,
floral, geomorphological, natural or zoological significance, for the
purpose of protecting, propagating or developing wild life or its
environment.”37
extent of the rights of any person in or over the land
comprised within the limits of the sanctuary16.
20. Bar of accrual of rights.- After the issue of a
notification under section 18, no right shall be acquired
in, on or over the land comprised within the limits of the
area specified in such notification, except by
succession, testamentary or intestate.
21. Proclamation by Collector.- When a notification
has been issued under section 18, the Collector shall
publish in the regional language in every town and
village in or in the neighbourhood of the area comprised
therein, a proclamation-
(a) specifying, as nearly as possible, the
situation and the limits of the sanctuary;
and
(b) requiring any person, claiming any right
mentioned in section 19, to prefer before
the Collector, within two months from the
date of such proclamation, a written claim
in the prescribed form, specifying the
nature and extent of such right with
necessary details and the amount and
particulars of compensation, if any, claimed
in respect thereof.
22. Inquiry by Collector.- The Collector shall, after
service of the prescribed notice upon the claimant,
expeditiously inquire into-
(a) the claim preferred before him under clause
(b) of section 21; and
(b) the existence of any right mentioned in
section 19 and not claimed under clause
(b) of section 21,
16Section 19 was also amended by Act No. 44 of 1971 and the amended Section 19
reads as follows:-
“19. Collector to determine rights. – When a notification has been
issued under section 18 the Collector shall inquire into, and determine,
the existence, nature and extent of the rights of any person in or over the
land comprised within the limits of the sanctuary.”
38
so far as the same may be ascertainable from the
records of the State Government and the evidence of
any person acquainted with the same.
23. Powers of Collector.- For the purpose of such
inquiry, the Collector 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 authorise any other officer to
do so;
(b) the same powers as are vested in a civil
court for the trial of suits.
24. Acquisition of rights.- (1) In the case of a claim
to a right in or over any land referred to in section 19,
the Collector shall pass an order admitting or rejecting
the same in whole or in part.
(2) If such claim is admitted in whole or in part, the
Collector may either-
(a) exclude such land from the limits of the
proposed sanctuary, or
(b) proceed to acquire such land or rights,
except where by an agreement between
the owner of such land or holder of rights
and the Government, the owner or holder
of such rights has agreed to surrender his
rights to the Government, in or over such
land, and on payment of such
compensation, as is proved in the Land
Acquisition Act, 1894 (1 of 1894).17
*** *** ***
27. Restriction on entry in sanctuary. – (1) No person
other than, –
17By the said amendment Act No. 44 of 1991, sub-clause (c) was added to Section 24 as
follows: –
“(c) allow, in consultation with the Chief Wild Life Warden, the
continuation of any right of any person in or over any land within the
limits of the sanctuary.”39
(a) a public servant on duty,
(b) a person who has been permitted by the
Chief Wild Life Warden or the authorised
officer to reside within the limits of the
sanctuary,
(c) a person who has any right over immovable
property within the limits of the sanctuary,
(d) a person passing through the sanctuary
along a public highway, and
(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
in accordance with the conditions of a permit granted
under section 28.
(2) Every person shall, so long as he resides in the
sanctuary, be bound-
(a) to prevent the commission, in the
sanctuary, of an offence against this Act;
(b) where there is reason to believe that any
such offence against this Act has been
committed in such sanctuary, to help in
discovering and arresting the offender;
(c) to report the death of any wild animal and
to safeguard its remains until the Chief Wild
Life Warden or the authorised officer
takes charge thereof;
(d) to extinguish any fire in such sanctuary of
which he has knowledge or information and
to prevent from spreading, by any lawful
means in his power, any fire within the
vicinity of such sanctuary of which he has
knowledge or information; and
(e) to assist any Forest Officer, Chief Wild Life
Warden, Wild Life Warden or Police Officer
demanding his aid for preventing the40
commission of any offence against this Act
or in the investigation of any such offence.18
28. Grant of permit.- (1) The Chief Wild Life Warden
may, on application, grant to any person a permit to
enter or reside in a sanctuary for all or any of the
following purposes, namely:-
(a) investigation or study of wild life and
purposes ancillary or incidental thereto;
(b) photography;
(c) scientific research;
(d) tourism;
(e) transaction of lawful business with any
person residing in the sanctuary.
(2) A permit to enter or reside in a sanctuary shall be
issued subject to such conditions and on payment of
such fee as may be prescribed”.
15.1. It could at once be noticed that a few changes were brought about by
the amending enactment i.e., Act No. 44 of 1991, having the effect of
slightly altering the process of declaration of sanctuary. Prior to the said
amendment, the notification under Section 18(1) of the Act of 1972 was of
the declaration of an area to be a sanctuary whereas, after the amendment,
such notification under Section 18(1) would be of declaration by the State
18 By the said Act No. 44 of 1991, sub-section (3) and sub-section (4) were inserted to
Section 27 as under: –
“(3) No person shall, with intent to cause damage to any boundary-
mark of a sanctuary 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 of sanctuary.”
41
Government of its intention to constitute an area as a sanctuary. However,
the remaining part of the scheme of the provisions regarding the powers of
the Collector to determine the rights; the bar over accrual of rights after
issuance of notification under Section 18; issuance of proclamation by the
Collector; inquiry by the Collector; and the Collector’s powers for the
purpose of inquiry remained essentially the same.19-20
The operation and effect of Section 20 of the Act of 1972
19 It may, however, be pointed out that in view of modification in the scheme of the
process of declaration of a sanctuary, whereby, after the amendment, the notification
under Section 18 is only a declaration of the intention of Government, the provisions were
inserted by way of Section 26-A to the Act of 1972 to provide for the declaration of area as
a sanctuary, essentially after disposal of the claims, if any made after issuance of the
notification under Section 18. For the present purpose, suffice would be to take note of
the principal part of sub-section (1) of Section 26-A, (while omitting the proviso 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
preferring claims has elapsed, and all claims, if any, made in relation to
any land in an area intended to be declared as a sanctuary, have been
disposed of by the State Government; or
(b) any area comprised within any reserved forest or any part of the
territorial waters, which is considered by the State Government to be of
adequate ecological faunal, floral, geomorphological, natural or zoological
significance for the purpose of protecting, propagating or developing wild
life or its environment, is to be included in a sanctuary,
the State Government shall issue a notification specifying the limits of the
area which shall be comprised within the sanctuary and declare that the said
area shall be a sanctuary on and from such date as maybe specified in the
notification:
*** *** *** ”
20 It may also be pointed out that several more changes have been brought about in the
scheme 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 and
appointment of Collectors; the proclamation under Section 19 is now required to be
issued within sixty days of issuance of the notification under Section 18; Section 25-A has
also been inserted providing for completion of proceedings under Sections 19 to 25 within
two years from the date of notification under Section 18; sub-section (3) has been
substituted in Section 26-A; and Section 29 has also been substituted, prohibiting
destruction, exploitation or removal of any wildlife including forest produce from a
sanctuary except under and in accordance with a permit granted by the Chief Wildlife
Warden. These provisions need not be dilated for being not applicable to the case at
hand.
42
16. It is beyond the pale of doubt that in the scheme of the Act of 1972,
issuance of a notification under Section 18 thereof has the peculiar and
striking effect, of arresting the accrual of any right in the land comprised
within the limits of the area specified in such notification except by 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 of 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, the notification under
Section 18(1), which was issued on 06.03.1976, was in operation and it had
been the specific assertion of the appellant that the subject land was
included in the said notification.21 That being the position, there was
absolutely no occasion for the appellant acquiring any further right in the
land in question after expiry of the term of his lease on 30.06.1977. For this
reason alone, we are clearly of the view that the so called second lease
deed, said to have been executed in favour of the appellant on 20.03.1978
was of no effect. In other words, the notification under Section 18(1) having
been issued on 06.03.1976 (which included the land in question as per the
own assertion of the appellant), no right in the land in question could have
been acquired except by succession and hence, acquiring of any right by
the appellant in the subject land, said to be covered by the said notification
dated 06.03.1976, by way of a lease, was absolutely out of question.
21 Even when the defendant-respondent made an uncertain attempt to suggest that the
subject land was not included in the said notification under Section 18(1) of the Act, it had
been the specific assertion of the appellant that it was so included and the entire matter,
including the claim of the appellant, has proceeded on the basis that it was indeed
included therein.
43
16.1. In our view, the entire substratum of the case of the appellant is
knocked to the ground once it is found that the appellant had acquired no
right under the said second lease dated 20.03.1978 and least any right
against the State. Noteworthy it is that in all the previous litigations, initially
seeking exclusion of land in question from the sanctuary; then seeking
compensation for its inclusion; and then questioning its exclusion, the Mutt
had been an active participant. In fact, the last petition seeking to 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. The appellant, we
have no doubt, had no right whatsoever to claim damages with reference to
the alleged cause of action based on the order of exclusion dated
19.11.1993 for the reason that the alleged second lease was of no effect
and the appellant had acquired no right thereunder. We may put it in yet
other words that if at all the exclusion order dated 19.11.1993 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 this count alone.
Even if the appellant had any right, there was no infringement
17. Having found that the plaintiff-appellant did not acquire any right
under the second lease and dismissal of suit at hand could be sustained on
this ground alone, we may, yet, leave this aspect aside for a moment and
examine the second question as to whether the right of the appellant (if any)
in the subject land was infringed in the manner as to give the appellant a
44
cause to maintain an action for damages. Noteworthy it is that the claim for
damages in the present suit is based on the assertion that the respondent-
State through its officers caused prejudice and injury by preventing the
appellant from entering the subject land and enjoying the usufruct thereof
and then, by denying compensation for acquisition by lately excluding the
subject land from the sanctuary. Such assertion of the appellant has also
taken its strength from some of the observations made by the Division
Bench of the High Court in its aforesaid judgment dated 18.09.1997,
whereby the claim of the Mutt and the appellant against the exclusion order
dated 19.11.1993 was rejected. In our view, there is no merit in the claim of
the appellant.
17.1. The Division Bench of the High Court has noticed in the impugned
judgment dated 26.02.2007, and rightly so, that even as per the admission
of the PW-1, the appellant had not been dispossessed. So far as the
restriction on entry is concerned, as per Section 27 of the Act of 1972, a
person having any right over the immovable property within the limits of
sanctuary is not debarred from entering into or residing within the sanctuary.
At the most, the duties as contemplated by sub-section (2) of Section 27 are
to be performed. Such duties, essentially to protect the sanctuary and its
habitants, cannot be said to be leading to any debarment from exercising
any legal right.
17.2. In our view, the Division Bench has rightly observed in the impugned
judgment that there is nothing on record to establish that the original owner
45
and the plaintiff were prevented from going inside the forest and collecting
the usufructs. In a comprehension of the facts on record and the law
applicable, it cannot be said that the plaintiff-appellant was prevented from
exercising its lawful rights in any unlawful manner by the State. Hence,
there appears no basis for the appellant to maintain an action for damages.
18. There had, of course, been one instance where the appellant was
denied the permission to fell the trees. That denial was made way back on
16.11.1976 and could not have furnished any cause to the appellant to
maintain the claim for damages for the so called loss of earning for 22 years
and for claiming other amount as per the prayers made in the plaint. Even
as regards the aforesaid denial of permission to fell the trees, it could be
presumed that the trees were available at the site when the area was
excluded from sanctuary. Therefore, it cannot be 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 satisfied that the
appellant had no case for claiming damages against the respondent-State.
Hence, it does not appear necessary to deal with various decisions cited by
learned counsel for the appellant as regards violation of right to property
and the claim for damages on that count. However, one aspect of the
matter as regards admission on the part of the Collector in the letter dated
28.05.1987 may be examined. There is no dispute on the fundamental
principles in Thiru John, Sushil Kumar and Standard Chartered Bank
46
(supra) that an admission is the best evidence against a litigant, unless
properly explained. There had not been any evidence on behalf of the
defendant-respondent in this case and the aforesaid letter dated 28.05.1987
has not been denied. The question, however, is about the effect of this
letter. In our view, even if the said letter, being essentially of inter-
departmental correspondence, is taken on its face value, nothing much
turns upon it because, as rightly observed by the High Court, there is
nothing on record to indicate that the original owner and the appellant were
prevented from going inside the subject land and from collecting the
usufructs; and it cannot be said that the appellant was prevented in any
unlawful manner by the State in exercising its lawful right (if at all the
appellant had any such right).
20. For what has been discussed hereinabove, we are satisfied that the
Division Bench of the High Court has rightly answered both the material
questions i.e., as to whether the appellant had any right in the subject land;
and if there was any such right, as to whether the same had been infringed,
against the appellant in a proper manner and in accordance with law. No
case for granting any decree for damages is made out.
Limitation
21. On the facts and in the circumstances of this case, the question of
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 the claim for
47
damages, the matter was directly covered by Article 72 of the Limitation 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 of the Limitation Act reads
as under:-
For compensation for One When the act or
doing 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
extends.21.1. In the case of Challa Ramkrishna Reddy (supra), this Court has
pointed out that if the act or omission complained of is not alleged to be in
pursuance of the statutory authority, Article 72 would not apply; and this
Article would not protect a public officer acting malafide under the colour of
his office. Although in the present case, there is no specific allegation of
malafide against any particular officer/officers and hence, Article 72 would
operate with limitation period of one year from the date of impugned action
but, for the sake of argument, we may assume that the residuary Article
113, providing for the limitation of three years from the time when the right
to sue accrues may apply to the suit at hand. We may 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 of limitation.
48
21.2. The appellant, therefore, referred to and relied upon Section 14 of theLimitation Act and the observations made by the High Court in the judgment
dated 18.09.1997. So far the observations by the High Court in the said
judgment are concerned, it is but apparent that the Division Bench of High
Court could not have, and did not, finally pronounce that the time spent in
the said writ matter would be excluded under Section 14. The Division
Bench only left it open that such a ground may be raised in the claim for
compensation. When raised, the ground was obviously required to be
examined on its own merits.
21.3. It is noticed that the learned Single Judge, while dealing with issue
No. 2 in the suit, proceeded in a wholly cursory manner, inasmuch as after
referring to the observations in the judgment 18.09.1997 and then to the
contentions of parties, the learned Judge straight away observed that he
would disagree with the defendant without specifying any reason; and
stated the conclusion that the suit was filed within time. The Division Bench,
on the other hand, pointed out its prima facie doubts on the applicability of
Section 14 of the Limitation Act but did not decide the question of limitation,
as the claim was being negatived on merits. Having regard to the subject
matter, it appears appropriate to deal with this 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 that provides for
exclusion of the time spent in prosecuting one civil proceeding bona fide in
a Court not having jurisdiction, while computing limitation in any suit where
49
the matter in issue is same as that of the earlier proceeding. The heading ofthis provision and sub-section (1) thereof may be extracted as under:
“14. Exclusion of time of proceeding bona fide in
court without jurisdiction.-(1) In computing the period
of limitation for any suit the time during which the
plaintiff has been prosecuting with due diligence another
civil proceeding, whether in a court of first instance or of
appeal or revision, against the defendant shall be
excluded, where the proceeding relates to the same
matter in issue and is prosecuted in good faith in a court
which, from defect of jurisdiction or other cause of a like
nature is unable to entertain it.”21.4.1. We may usefully refer to the relevant decisions pointing out the
basic requirements for applicability of Section 14 of the Limitation Act. In
the case of Madhavrao Narayanarao Patwardhan v. Ramkrishna Govind
Bhanu and Ors.: AIR 1958 SC 767, this Court pointed out the requirements
on plaintiff for the purpose of Section 14 in the following:-
“6. …..In order to bring his case within the section
quoted above, the plaintiff has to show affirmatively:
(1) that he had been prosecuting with due diligence
the previous suit in the court of the Munsif at
Miraj.(2) that the previous suit was founded upon the
same cause of action,
(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
a like nature……..”
21.4.2. Further, in the case of Zafar Khan and Ors. v. Board of Revenue,U.P. and Ors.: 1984 (Supp) SCC 505, this Court pointed out thus:
50
“13. In order to attract the application of Section
14(1), the parties seeking its benefit must satisfy the
court that : (i) that the party as the plaintiff was
prosecuting another civil proceeding with due diligence;(ii) that the earlier proceeding and the later proceeding
relate to the same matter in issue, and (iii) the former
proceeding was being prosecuted in good faith in a
court which, from defect of jurisdiction or other cause of
a like nature, in unable to entertain it.……..”
21.4.3. In Yeshwant Deorao (supra), this Court held that there can be noexclusion under Section 14 of the Limitation Act of the time spent in
insolvency proceedings against the judgment debtor, in computing the
period of limitation for executing a decree against him, as the two
proceedings were not for obtaining the same relief. This Court said,-
“5............ The relief sought in insolvency is obviously
different from the relief sought in the execution
application. In the former, an adjudication of the debtor
as insolvent is sought as preliminary to the vesting of all
his estate and the administration of it by the Official
Receiver or the Official Assignee, as the same may be,
for the benefit of all the creditors; but in the latter, the
money due is sought to be realized for the benefit of the
decree-holder alone, by processes like attachment of
property and arrest of person. It may be that ultimately
in the insolvency proceedings the decree-holder may be
able to realize his debt wholly or in part, but this is a
mere consequence or result. Not only is the relief of a
different nature in the two proceedings but the
procedure is also widely divergent.”
21.4.4. We may also refer to a Division Bench decision of the Nagpur HighCourt in Kashinath Shankarappa v. The New Akot Cotton Ginning and
Pressing Co. Ltd.: AIR 1951 Nagpur 255 wherein, on the question as to
whether in an action for recovery of debt in the civil Court, the time spent in
51
the winding up proceeding could be excluded, the High Court answered inthe negative thus:
“28. The grounds on which a company can be wound up
are set 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" embraces three distinct
concepts. There is nothing to show that the application
was confined to this particular debt. But even if it was,
the cause of action in winding up proceedings under S.163(1) is the inability of the company to pay its debts
and not as here, as the recovery of the debt. The
question of recovery does not arise until the winding up
order has been made and a liquidator appointed. It is at
that stage that the claims against the company are
enquired into and decided. Therefore the cause of
action in those proceedings and the cause of action
here were not the same. It follows that S. 14 is not
attracted.”21.4.5. The decisions referred by learned counsel for the appellant had
been of different situations. In Rameshwarlal (supra), the claim was of
salary by the petitioner that was not entertained in the writ petition on the
ground that the claim was recoverable in civil action and the civil suit was
filed thereafter. This Court indicated the normal principle that the Court
dealing with the matter in the first instance must be found lacking
jurisdiction or other cause of like nature to entertain the matter but then,
found that in the proceedings under Article 226 of the Constitution of
India, the High Court had expressly declined to grant relief while
relegating the petitioner to a suit in the civil Court. In the given
circumstances, this Court observed that the petitioner could not be left
52
remediless. In the case of Shring Construction Co. (supra), the arbitrationaward was initially sought to be challenged by way of a writ petition that
was dismissed as being not maintainable on the ground that the award
ought to have been challenged under Section 34 of the Arbitration and
Conciliation Act, 1996. Then, the District Judge dismissed the application
under Section 34 of the said Act of 1996 for being barred by time. This
Court found that applicability of Section 14 of the Limitation Act was not
excluded from the said Act of 1996 and hence, the matter was remitted to
the District Judge to examine if the period spent by the appellant in
prosecuting remedy before the High Court could be excluded.
21.4.6. The common thread running through all the decisions above
referred is that for the applicability of Section 14 of the Limitation Act and
exclusion of the time spent in earlier proceeding, the matter in issue in
both the earlier and the later proceeding must be the same. This is apart
from the other requirements that the previous proceeding had been civil
proceeding, which were being prosecuted by the plaintiff with due
diligence and in a Court which, from the defect of jurisdiction or other
cause of like nature, was unable to entertain the same though the plaintiff
had been prosecuting in that Court in good faith.
21.5. In the present case, except the fact that the earlier writ petition in
challenge to the exclusion order dated 19.11.1993 was civil proceeding
and the plaintiff might have been prosecuting with due diligence, none of
the other requirements of Section 14 of the Limitation Act are satisfied.
53
The basic requirement, that the matter in issue in the earlier and the laterproceeding ought to be the same; and both the proceedings, earlier and
later, ought to relate to the same cause of action and for the same relief,
is totally missing. Rather, the matter in issue in the earlier proceeding
could well be contradistinguished from the matter in issue in the present
suit. In the said earlier proceeding, the plaintiff-appellant joined the Mutt
to assert that the respondent-State was not entitled to exclude the land in
question from sanctuary; and that the State ought to take the land and
ought to pay compensation as proposed by some of its officers. On the
other hand, the claim in the present suit is founded on the ground that the
plaintiff has suffered loss due to the proceedings under the Act of 1972
and then, due to exclusion of the subject land from acquisition. The relief
claimed in the present suit and matter in issue herein cannot be said to be
the same as had been in issue in the earlier proceeding i.e., the said writ
petition against the exclusion order dated 19.11.1993. Apart from the fact
that the earlier proceeding i.e., the said writ petition was for a different
relief for quashing the exclusion order dated 19.11.1993, it is also
pertinent that the said writ petition was dismissed on merit and not for
want of jurisdiction. Applicability of Section 14 of the Limitation Act is
totally ruled out in this case.
21.6. We may also observe that if the said order dated 19.11.1993 had at
all given any cause to the appellant to claim damages/compensation, the
limitation had begun to run from that date itself and the said proceeding in
54
the writ petition had never arrested such running of limitation. The learnedcounsel for the appellant has submitted that the said order dated
19.11.1993 was quashed by the learned Single Judge on 13.09.1995 and
came to be resurrected only when the Division Bench allowed the appeal
of the State on 18.09.1997 and therefore, limitation would run from the
date of judgment of the Division Bench. This proposition, at the first blush,
appeared attractive but cannot be accepted on a closer look at the matter.
The filing of writ petition or any order passed therein did not operate in
arresting limitation that had begun to run on 19.11.1993, so far the right to
sue for damages is concerned. The plaintiff-appellant consciously chose
not to claim damages in the wake of the order dated 19.11.1993 and,
instead, joined the Mutt to seek the relief that the said order dated
19.11.1993 be quashed and the land be not excluded from sanctuary.
Having failed in such an attempt, the appellant could not have maintained
the claim for damages, by filing a suit in the year 1998.
21.7. The observations of the Division Bench in the order dated
18.09.1997, suggesting as if the time spent in the said petition could
readily be excluded are of no effect because the Division Bench, while
dealing with the said writ matter, could not have decided the issue of
limitation in the suit in anticipation. Some of the expressions of conclusive
nature, as used by the Division Bench in the judgment dated 18.09.1997,
were rather unwarranted and in any case, could not have made the
question of limitation in relation to the suit for damage fait accompli. We
55
say no more because, read as a whole, the said judgment dated18.09.1997, cannot be taken to be of final conclusion as regards the
applicability of Section 14 to the future action. As noticed, Section 14 of
the Limitation Act does not apply to the present suit; and, for being
otherwise barred by limitation, the suit is liable to be dismissed on this
ground alone.
22. We may also observe that so far as the denial of felling the trees by
the order dated 16.11.1976 is concerned, if the plaintiff-appellant at all
had any right to make a claim for damages on that score, the same ought
to have been made within limitation from that date. The relief in that
regard could not have been claimed by way of a suit filed more than 20
years later.
CONCLUSION
23. The upshot of the discussion aforesaid is that the suit filed by the
plaintiff-appellant was barred by limitation and even otherwise, the
plaintiff-appellant had no case on merits to claim damages from the
respondent-State. The Division Bench of the High Court has rightly
allowed the appeal filed by the State and has rightly dismissed the
baseless suit filed by the appellant.
56
24. Accordingly and in view of the above, this appeal stands dismissed.
In the circumstances of the case, the parties are left to bear their own
costs throughout.
...............................................J.
(ABHAY MANOHAR SAPRE)...............................................J.
(DINESH MAHESHWARI) 1New Delhi,
Date: 20th August, 2019.57
