Krishna Trading Co. vs State of Another

V.P. Bhatnagar, J.—The allegations, made in the plaint, which are not disputed by the Defendants, may be narrated at the outset.

Three different lots of dry, up-rooted and fallen chil (pine) trees were put to auction at Bhadroya by the Forest Department, Government of Himachal Pradesh, in October 1979. The Plaintiff firm gave highest bids amounting to Rs. 23,98,000/- for these lots. The bids were accepted and three lease deeds Ex. D-35, D-36 and D-38 were executed. The Plaintiff also agreed to pay sales tax on auction amount, which is termed as royalty, and surcharge which is 10 per cent of the sales tax. The amounts of royalty and tax were payable in instalments indicated in the lease deeds referred to above. The work of felling the trees and extracting timber there from was to be completed within a fixed time. The Plaintiff represented for extension of this period on which the Conservator of Forests, Bilaspur allowed extension upto September 25, 1980. Further extension in the period of contract, though applied for, was not allowed. The Plaintiff also failed to deposit the amount of instalments according to the time schedule with the result that the Forest Department confiscated the timber and the forest produce and put it to re-auction. The total demand raised by the Forest Department against the Plaintiff-firm was to the tune of Rs. 36,10,325.36 P out of which an amount of Rs. 29,54,410.87 P. had been admittedly paid by the Plaintiff, leaving behind a balance of Rs. 6,45,914.49 P. The Plaintiff having failed to pay the above mentioned balance amount, the Defendants (Forest Department) took steps to recover it as arrears of land revenue as stipulated u/s 82 of the Indian Forest Act.

It is also not disputed that the total demand of Rs. 36,10,325.36 P. raised by the Defendants against the Plaintiff includes a sum of Rs. 6,61,264.05 P. as sales tax and surcharge thereon and a sum of Rs. 1,47,882.15P. as the amount of interest on the tax amount. In this civil suit, the Plaintiff has challenged the legality and validity of the aforesaid two amounts totalling Rs. 8,09,146.20 P. As a result, it has been prayed that a decree for declaration be granted against the Defendants to the effect that proceedings for recovery of Rs. 6,45,914.49 P. as arrears of land revenue are illegal, void, without jurisdiction and inoperative because the Defendants have no right to realise the amount of sales tax, surcharge and interest thereon. As a consequential relief, a decree for injunction restraining the Defendants from realising the amount of Rs. 6,45,914.49 P., or enforcing its recovery in any manner whatsoever has been prayed for. Further-more, the Plaintiff has sought a decree for the recovery of the balance amount of Rs. 1,63,231.71 P. (Rs. 8,09,146.20 P. minus Rs. 6,45,914.49P.), with interest at the rate of 18 percent.

The ground on which the demand regarding sales tax, surcharge and interest thereon has been contested is that the Defendants exercised their right of re-auction and rescinded the contract of sale after which the aforesaid amount was no longer recoverable. In paras 7, 8 and 9 of the plaint, the Plaintiff has averred that the Forest Department was required to proportionately release the timber on royalty amount which it failed to do. Moreover, an export permit for 3880 quintals of pulp wood was issued in favour of the Plaintiff on April 21, 1981, but it was cancelled without any show cause notice. Further, 4000 quintals of pulp wood could not be exported in time due to non-availability of diesel. It was incumbent upon the Forest Department to allow more time for its export, but this was not done. The forests were also not handed over to the Plaintiff in time which contributed to the delay in the completion of the work. With respect to lot No. 5-12/79-80 within district Hamirpur,, so the Plaintiff alleges, the, residents of the adjoining villages had a right to take away the dry trees of 18 inches girth at ground level without permission. This fact was not disclosed to the Plaintiff and as many as 2075 trees were marked which could not have been auctioned to the Plaintiff. Thus, the Plaintiff was deprived of 2075 forest trees and thereby suffered damages to the tune of rupees one lakh. The Plaintiff has further alleged that he suffered damages to the tune of Rs. 8,09,146.20 P. on account of the above mentioned acts of omission and commission on the part of the Defendants.

The Defendants, in their written statement, have contested the suit on various preliminary grounds. It has been stated that no valid notice under sectipn, 80 CPC has been served upon them and that the suit is not maintainable in its present form as also for misjoinder of causes of action and being barred by limitation. The provisions of Order 23 rules 1 and 2 CPC have also been invoked for not-suiting the Plaintiff. It has been further pleaded that the Plaintiff could not institute the present suit without depositing the suit amount under protest as provided u/s 84 of the Himachal Pradesh Land Revenue Act, 1953. An objection that the suit is barred by the principles of res judicata has also been raised. On merits, it has been averred that the demand towards sales tax, surcharge and interest thereon is absolutely legal and valid. It has been denied that the Plaintiff suffered any loss due to the alleged acts of omission and commission outlined in the plaint.

The parties were taken to trial on the following issues framed on January 2, 1986:

Whether the suit is maintainable without serving notice u/s 80 Code of Civil Procedure? OPP

Whether the suit is not maintainable in its present form? OPD

Whether the suit is bad for mis-joinder of causes of action ? OPD.

Whether the suit is barred by the provisions of Order 23, rules 1 and 2 Code of Civil Procedure? OPD

Whether the suit is barred by limitation? OPD

Whether the suit is not maintainable in view of the provisions of Section 84 of the Himachal Pradesh Land Revenue Act, 1953 due to non-deposit under protest of the amount which is the subject matter before the recovery officer/authority? OPD

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

Whether the demand towards sales tax, surcharge and interest thereupon is illegal, void, and without jurisdiction? If so, what is the exact amount on this account? OPP

What is the amount of payment made and adjustment done on behalf of the Plaintiff against three lots in question? OPP

Whether the Plaintiffs are entitled to refund of Rs. 1,63,231.71 P. or any other amount from the Defendants? OPP

Whether the order of recovery made under sections 82 and 83 of the Indian Forest Act to realise the amount from the Plaintiff as arrears of land revenue is illegal, void and without jurisdiction? OPP

Wether the Plaintiff has suffered damages to the tune of Rs. 8,09,146.20 P. or any other amount on account of acts of omission and commission on the part of Defendants as mentioned in paras 7, 8 and 9 of the plaint? OPP

Relief.

Issues Nos. 1, 2, 3, 4, 5 and 7.

These issues have not been contested by the learned Asstt. Advocate General at the time of arguments and are, therefore, decided against the Defendants.

Issue No. 6.

Section 84 of the Himachal Pradesh Land Revenue Act, 1953 (hereinafter referred to as the Revenue Act) reads as under:

Remedies open to person denying his liabitity for an arrear--(1). Notwithstanding anything in Section 73 when proceedings are taken under this Act for the recovery of an arrear the person against whom the proceedings are taken may, if he denies his liability for the arrear or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit in a Civil Court for recovery of the amount so paid.

(2) A suit under Sub-section (1) must be instituted in a Court having jurisdiction in the place where the office of the Collector of the district in which the arrear or some part thereof accrued is situate.

It would be useful to reproduce Section 73 of the Revenue Act also. It is as follows:

Certified account to be evidence as to arrear.--A statement of account certified by a Revenue Officer shall be conclusive proof of the existence of an arrear of land revenue, of its amount and of the person who is the defaulter.

The bare language of Section 84 of the Revenue Act makes it clear that it is intended to provide a remedy to a person who deniee his liability for an arrear of land revenue certified by a Revenue Officer to be outstanding. A certified statement of account shall be conclusive proof of the amount indicated therein as due from the person named. If that person denies his liability notwithstanding the statement of account having been certified by the Revenue Officer, he must in the first instance, deposit the amount under protest and only thereafter institute a civil suit for its recovery. Thus, the conjoint reading of Section 84 and Section 73 shows that the procedure laid down in Section 84 has to be followed only in cases where a person is aggrieved of the correctness of statement of account adverted to in Section 73. This statement necessarily pertains to land revenue as defined in Section 4(10). The amount stated therein is payable in respect of land and the above procedure can be invoked only in cases where arrears in respect of land-revenue as disclosed in statement of account u/s 73 are meant to be challenged.

Section 82 of the Indian Forest Act, 1927 (in short, the Forest Act) no doubt, postulates that money payable to the Government under the Forest Act may be recovered under the law for the time being in force as if it were an arrear of land-revenue, thus enabling Government to resort to the process referred to in Section 74 of the Revenue Act through the Collector of the district concerned for its recovery without obtaining a decree from a civil court. Such money due to the Government is thereby deemed to be "arrear of land-revenue" but does not partake the nature of "land-revenue" for the simple reason that it is against forest dues and has nothing to do with land as such. Therefore, the provisions of Section 84 of the Revenue Act have to be confined in their applicability to such money as is recoverable towards "arrears of land-revenue" as distinguished from the money to be recovered "as if it were an arrear of land.

Any other interpretation of Section 84 of the Revenue Act read with Section 82 of the Forest Act would be harsh and unreasonable to such an extent that it cannot be attributed to legislative intendment. For example, in the instant case itself, to hold that the Plaintiff must first deposit a sum of Rs. 8,09, 146.20 P. in cash (though under protest) before the doors of a civil court will be thrown open to him for adjudicating the legality and validity of the demand raised by the Forest Department would be manifestly unjust. Even where an appeal has to be preferred against a money decree and the law makers wanted the Appellant to deposit the amount disputed in the appeal, the Appellate Court has been given the discretion to instead call upon the Appellant to furnish security therefore and also to extend time for doing so.

In case the intention of the Legislature is to bar the filing of a civil suit challenging the validity and legality of this forest dues, Section 82 of the Forest Act will have to be amended accordingly. Whether such an amendment will stand the test of reasonableness under Article 14 of the Constitution is a question which need not be dealt with at this stage of the case.

Mr. M.S. Guleria, Asstt. Advocate General has sought support from the law laid down in 1978 RLR 301 Punjab State v. Kirpal Singh wherein a learned Single Judge of the Punjab and Haryana High Court has held that a person denying his liability for the payment of arrears under the Punjab Public Premises and Land (Eviction and Rent Recoveries) Act, also recoverable as arrears of land revenue, must make the payment under protest and then file suit for its recovery. In view of the detailed reasons given above, I do not think, with all respects that Kirpal Singh''s case (supra) lays down the correct law.

Consequently, it is held that the present suit is maintainable inspite of non-deposit under protest of the amount which is the subject matter of this suit. This issue is, accordingly, decided against the Defendants.

Issue No. 8.

The amount of sales tax, surcharge and interest, as noticed in para 3 above, is Rs. 8,09,146.20 P. Out of this amount, a sum of Rs. 1,63,231.71 P. stands recoverable from the Plaintiff with the result that the Plaintiff has prayed for a decree for its recovery from the Defendants. The Defendants have now initiated proceedings for the recovery of the balance amount of Rs. 6, 45,914.49 P. as arrears of land revenue with respect to which the Plaintiff has sought a declaration and permanent injunction by way of a consequential relief as stated above. There is no dispute regarding the accuracy of the above figures.

The only point urged by Mr. Devinder Gupta, learned Counsel for the Plaintiff in support of his case that the aforesaid demand is illegal, void and without jurisdiction, is that the Defendants rescinded contract of sale and exercised their right of re-auction. The timber, to that extent, was, therefore, given to someone else. Consequently, sales tax could not be recovered from the Plaintiff. This argument is devoid of any merit. This is because the contract of sale was complete when the lease deeds Exs. P-35, P-36 and P-38 were duly executed by the parties and the property in the trees of three lots had passed to the buyers (Plaintiff). If so, sales tax on the amount of royalty became payable straight away under the provisions of Himachal Pradesh General Sales Tax Act, 1968. My attention has not been drawn to any provisions contained in the Sales Tax Act whereby the tax could be refunded to the Plaintiff because the timber was confiscated by the Defendants due to non-payment of royalty and other dues in accordance with the terms of the contract.

As regards the amount of interest being charged on the sales tax and surcharge thereon, Mr. Devinder Gupta, has relied upon the provisions of Section 17-A of the Sales Tax Act to ,contend that such demand is not valid unless the appropriate Sales Tax Authority raises it against the Forest Department. This argument, however, overlooks the contents of Clause 18(g) in Annexure ''C'' to the lease deeds whereby the parties agreed that interest would become payable in case sales tax and surcharge amount is not paid in time. It is not the case of the Plaintiff that the amount of interest has been calculated wrongly and that it is not payable according to the provisions of the Sales Tax Act. The sales tax is admittedly leviable at the first stage and, in case of delayed payments, the Plaintiff cannot avoid his liability to pay interest thereon.

The learned Asstt. Advocate General has relied upon the ratio, so far it is applicable to the case in hand, of ILR 1976 HP 689 Yash Pal Garg and Co. v. The Chief Conservator of Forest etc. ILR 1985 HP 251 Damodar Valley Corporation Vs. K.K. Kar, These cases, in my view, do support the above conclusions.

Against issue No. 8, it is, therefore, held that the demand towards sales tax, surcharge and interest is valid and legal. The exact amount on this account has already been indicated above. This issue is, therefore, decided against the Plaintiff.

Issue No. 9.

The amount of payment made and adjustment done on behalf of the Plaintiff against three lots in question is Rs. 29,64,410.87 P and its correctness is not disputed by the parties. Issue No. 9 is decided accordingly.

Issue No. 12.

The acts of omission and commission on the part of the Defendants stated in the plaint have been detailed in para 4 above and need not be repeated. The Plaintiff has not adduced any evidence whatsoever on this issue. His main plea has been that he was not liable to pay sales tax, surcharge and interest, which has already been negatived under issue No. 8 above. This issue is also decided against the Plaintiff for want of evidence.

Issue No. 10.

In view of the findings given above, there is no question of the Plaintiff being entitled to refund of Rs. 1,63,231.71 P. or any other amount from the Defendants. Issue No. 10 is, therefore, decided against the Plaintiff.

Issue No. 11.

Manifestly, the proceedings to recover a sum of Rs. 6,45,914.29 P. as arrears of land-revenue are in order and there is no illegality involved therein. Issue No. 11 is, therefore, decided against the Plaintiff.

Issue No. 13.

As a sequel to the above findings, the Plaintiff''s suit is hereby dismissed with costs.