Sami Ullah vs Ranger, Bhinga Range, Forest Department and Others

I.M. Quddusi, J.—The present second appeal has been filed against judgment and order dated 20.9.80 passed by the District Judge, Bahraich dismissing the Civil Appeal No.43/79 preferred by the plaintiffappellant affirming the judgment and order dated 16.2.79, passed by the Civil Judge, Bahraich dismissing the plaintiff''s Suit No.31/76 Sami Ullah v. Ranger Bhinga, Tahsil Bhinga, Bahraich.

The brief facts of the case are that the appellantplaintiff instituted a suit in the court of Civil Judge, Bahraich alleging there in that he was higher bidder for forest lot No.435 of Bhinga range for the year 196869 for a sum of 20,100/ to take out the wood from the said lot and on various dates he deposited Rs.11,375/ vide treasury challan but due to excessive rain he could not take out the woods accordingly he made a request for extension for time as such the Forest Department extended one month time permitting the plaintiff to take out the woods but even then he could not succeed to remove the woods worth Rs.12,616/ from the said lot of the forest department. The plaintiff further alleged that the said lot was reauctioned by the respondent No.2 on 18.11.79 in favour of Merhu Khan for a sum of Rs.1500/ and a recovery certificate for a sum of Rs.11516.45 was issued against the appellant as land revenue.

The learned counsel for the appellant submitted that a lot of forest wood No.435 was auctioned for a sum of Rs.20,100/ and the appellantplaintiff had deposited Rs.11375/ on various dates and Rs.8,725/ was to be deposited by him. Subsequently when the said lot was reauctioned for a sum of Rs.1500/, the forest department proceeded to recover the loss/damages i.e. difference of amount, the same remained unpaid even after reauction including other expenses by issuing the aforesaid recovery certificate. It is further alleged that the plaintiff had given a registered notice dated 1.9.75 to the defendantsrespondents, which was received by the defendants on 13.9.75. In the said notice it was provided that the suit would be instituted on expiry of 60 days whereas the provision of Section 80 provides that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by the said public officer in his official capacity enabling extension of two months comes after notice in writing has been delivered or left in the office. A suit for permanent injunction was instituted on 28.5.76 in the Court of Civil Judge, Bahraich i.e. after about eight months and 15 days from, the date of service of the notice and it was pleaded that Section 82 of the Indian Forest Act read with Section 3(1) of Public Money (Recovery and Dues) Act, 1972, does not empower to recover the amount as damages, hence the defendant has no authority to take over the loss/damages as arrears of land revenue.

The learned Court below after framing the relevant issues in the matter proceeded to decide the suit by holding that amount which has been sought to be recovered as arrears of land revenue could not be recovered as such by issuing recovery certificate as the said amount is a forest dues under the provision of Section 82 of the Indian Forest Act read with Section 3(1) (i) of U.P. Public Money (Recovery of Dues) Act, 1972 as the same is only a loss/damages caused to the Forest Department. The learned courts below has also relied upon the principles laid down by this Court reported in AIR 1956 Alld 721, Firm Goverdhan Das Kailash Nath v. Collector, Mirzapur and others, and 1973 ALJ 309, State of U.P. and others v. Deewan Chandra and held that the damages could not be recovered as such. However, the Civil Judge held that the notice given by the plaintiff under Section 80 of the Civil Procedure Code is not valid one as in the said notice 60 days has been mentioned in place of two months. Accordingly he dismissed the suit vide judgment and order dated 16.2.79. The appeal preferred by the appellant against the said order filed by the appellant was also dismissed by the District Judge vide judgment and order dated 20.9.80 affirming the judgment and order passed by the learned Civil Judge, Bahraich. In his aforesaid judgment the District Judge was also of the view that the amount which has been sought to be recovered is not a dues as provided under Section 82 of the Indian Forest Act read with Section 3(1) of U.P. Public Money (Recovery of Dues) Act, 1972 and, therefore, it could not be recovered as an arrears of land revenue but he dismissed the appeal by holding that notice u/s. 80 of the Civil Procedure Code given by the plaintiff was not valid one as in the said notice in place of two months, 60 days time has been mentioned. Feeling aggrieved, the plaintiffappellant has filed the present second appeal before this Court challenging the findings recorded by courts below that loss/damages could not be recovered as an arrears of land revenue.

The provisions of Section 82 of the Indian forest Act as well as Section 3(1)(i) of the U.P. Public Money (Recovery of Dues) Act, are as follows:

�82. Recovery of money due to Government All money payable to the government under this Act, or under any rule made under this Act, or on account of the price of any forest produce, or of expenses incurred in the execution of this Act in respect of such produce, may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land revenue.�

�3. Recovery of certain dues as arrears of land revenue (1) Where any person is party

(a) �����..

(b) ������

(c) �����..

(d) to any agreement providing that any money payable there under to the State Government (or the Corporation) shall be recoverable as arrears of land revenue and such person

(1) makes any default in repayment of the loan or advance or any installment thereof; or

(2) having become liable under the condition of the grant of refund the grant or any portion thereof, makes any default in the refund of such grant or portion or any installment thereof; or

(3) otherwise fails to comply with the terms of the agreement,

then in the case of the State Government, such officer as may be authorized in that behalf by the State Government by notification in the official Gazette, and in the case of the Corporation or a government company, the Managing Director [or where there is no Managing Director then the Chairman of the corporation, by whatever name called] thereof, and in the case of a banking company the local agent thereof, by whatever name called, may send a certificate to the collector, mentioning the sum due from such person and requesting that such sum together with costs of the proceedings be recovered as if it were an arrear of land revenue.�

The provisions of Section 82 of the Indian Forest Act read with Section 3(1)(d) of the Public Money (Recovery of Dues) Act, 1972 have already been considered by this Court, as referred to hereinabove, wherein it has been held that the loss/damages could not be recovered as an arrears of land revenue. The recovery certificate issued to recover a sum of Rs.11516.45 paisa is not dues but it is a loss in view of the fact that plaintiff could not deposit a sum of Rs.8725/ out of Rs.20,100/ as he has only deposited Rs.11375/ and the said lot was reauctioned on 18.11.77 for a sum of Rs.1500/ and thereafter the recovery certificate was issued to recover the aforesaid difference of amount i.e. the loss alongwith other expenses and the said amount could not be said to be dues in view of the provision of Section 82 of the Indian Forest Act read with Section 3(1)(d) of the Public Money (Recovery of Dues) Act 1972 and it is only loss/damages which caused to the forest department, therefore, the learned appellate court has rightly held that the said damages can not be recovered as an arrears of land revenue and the findings recorded by the courts below to this effect, do not suffer from any perversity and illegality. When recovery certificate was issued to recover the aforesaid amount, a notice dated 1.9.75 under Section 80 CPC was given by the plaintiff to the defendant which was received by them on 13.9.75 in which it was provided that the aforesaid amount could not be recovered as an arrears of land revenue, therefore, he asked to withdraw the aforesaid recovery certificate, failing which a suit would be instituted against them on expiry of 60 days after the notice is served. The said suit was instituted on 28.5.76 i.e. about after 8 months and 15 days from the date if service of the notice. The court below has dismisswed the suit on the ground that the said notice is not valid one as the same mentions the period of 60 days instead of 2 months. In this connection the provision of Section 80 CPC are liable to be perused, which are quoted as below:

�Section 80 Notice (1) [Save as otherwise provided in subsection (2), no suit, shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir) or against a Public Officer in respect of any act purporting to be donwe by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of

(a)�����

(b)�����

(bb)����..

(c) in the case of a suit against (any other State Government), a Secretary to that Government or the Collector of the District.

And, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2)������

(3)������

From the perusal of the provision of Section 80 CPC, it only reveals that a suit would only be instituted only on expiry of two months after the notice in writing has been delivered or left at the office against the Government or against the public officer. The aforesaid provision does not describe any form of the notice and it is also not provided that in notice the word two months or any specified period has to be mentioned and if it is not mentioned then the notice would be invalid and on the basis of the said notice, the suit could not be instituted even on expiry of two months from the date of the said notice is delivered or left at the office. The only condition provided under the said provision is that no suit shall be instituted until the expiration of two months next after notice is writing has been delivered or left at the office.

In the present case, no doubt, in the notice the period has been mentioned 60 days but the said notice dated 1.9.75 was sent and served upon the defendant on 13.9.75 and the suit was instituted on 28.5.76 on expiry of about 8 months and 15 days. Therefore, on the basis of the said notice, the institution of the suit could not be held to be illegal and invalid. In the case reported in AIR 1955 (sic) 360, Tea Company Ltd. v. Calcutta High Court; AIR 1978 Alld. 546, Smt. Ram Kali v. Sita Ram and others (DB) and in (1984) 2 SCC 627, Bihari Chowdhary and another v. State of Bihar and others and also in (1984) 3 SCC 46, Ghanshyam Das & others v. Dominion of India and others, the Hon''ble Supreme Court has held that mandatory requirement of the provision of Section 80 CPC is that a suit against the Government or a public officer to which the requirement of prior notice u/s 80 CPC is attracted, cannot be validly instituted except the expiration of period of two months next from the notice in writing is delivered to the authority concerned in the manner described in the Section and if a suit is filed before expiry of the said period, the same has to be dismissed as not maintainable. It has also been held that the public purpose underlying the provision of Section 80 CPC is advancement of justice and securing of public goods by avoiding unnecessary litigation.

In view of the above, and in view of the principles laid down by Hon''ble Supreme Court as well as by Division Bench of this Court and of Calcutta High Court as mentioned herein above in the aforesaid cases, this Court is of the opinion that the court below has committed manifest error of law in dismissing the suit of the plaintiff on the ground that the notice contained 60 days period instead of two months. Accordingly, the judgment and order passed by the learned appellate court dismissing the appeal is also liable to be set aside.

In the result, the Second Appeal is allowed and the crossobjection filed by the respondents is rejected. The impugned judgment and decree dated 20.9.80 passed by District Judge, Bahraich in Civil Appeal No.430 of 1979 and the judgment and decree dated 16.2.1979 passed by Civil Judge, Bahraich in suit No.31 of 1976, are set aside and the Suit No.31 of 1976 filed by the plaintiffappellant is decreed with costs through out and the defendants are restrained permanently from realizing/recovering the sum sought to be recovered by the aforesaid recovery certificate, as an arrears of land revenue.

(Appeal allowed)