State of Himachal Pradesh vs Hari Singh

Sanjay Karol, Judge

This is the defendants'' Regular Second Appeal filed u/s 100 of the Code of Civil Procedure, 1908. Plaintiff''s Civil Suit No. 15 of 1999 (73 of 2005), instituted on 16th July, 1999, titled as Hari Singh versus State of Himachal Pradesh and others, stands dismissed, in terms of judgment and decree dated 27th February, 2006, passed by Civil Judge (Senior Division), Sundernagar, District Mandi, Himachal Pradesh, however, his appeal against the same, being Civil Appeal No. 43 of 2006, titled as Hari Singh versus State of H.P. and others, stands allowed by the District Judge, Mandi, in terms of judgment and decree dated 1st September, 2007. Plaintiff filed a suit for recovery of damages to the tune of Rs. 4,04,202/-, on the ground that officials of the respondents had illegally seized 71 scants (6.789 cubic metres) of timber was owned by him, having been extracted from his land situated in Mohal Bah in Tehsil Sunderngar, District Mandi, Himachal Pradesh. Plaintiff wanted to construct his house and after seeking permission from the Government, extracted the timber and stacked it in village Bah. However, officials of the Forest Department illegally seized the same.

Suit was resisted by the defendants, inter alia, on the ground that plaintiff did not have a valid permit for stacking the timber in village Jabbal, at which place timber was seized. Officials of the defendants apprehended that timber was illicit and as such Flying Squad, Sundernagar, after conducting raid on 18th June, 1997, seized the same.

Based on the pleadings of parties, trial Court framed the following issues:

Whether the plaintiff is entitled for damages to the tune of Rs. 4,04,202/- also with interest and cost as alleged? ...OPP

Whether the plaintiff is estopped to file present suit by his own act and conduct?...OPD

Whether the plaintiff has cause of action to file present suit? ...OPD

Whether the plaintiff has not served legal notice on defendants 1 to 4 as per the requirement of section 80 CPC, if so, its effect? ...OPD

Relief.

Issue No.1 was decided against the plaintiff and Issues No.2,3 and 4 were decided in favour of the defendants. As already noticed, plaintiff''s suit was dismissed, in terms of judgment and decree dated 27th February, 2006. However, in an appeal preferred by the plaintiff, lower Appellate Court decreed the suit, by reversing the findings and judgment passed by the trial Court, to the following effect:

As a sequel to my findings on point No.1 above, the impugned judgment and decree is set aside and the suit filed by the plaintiff is partly decreed. It is held that the plaintiff is entitled to receive Rs.1,76,988/- on account of sale proceeds of 71 slippers and defendant No.3 shall release the above amount by way of cheque/bank draft or in any other mode to the plaintiff and plaintiff shall also be entitled for damages to the tune of Rs.1,00,000/- from defendant NO.1 with interest @ 6% per annum from the date of filing the appeal till the payment. Defendant No.1 shall be at liberty to recover the above amount from the delinquent official. Decree sheet be prepared. Record of the trial Court be returned alongwith copy of this judgment and file after completion be consigned to Record Room.

Lower Appellate court decreed the suit primarily on the ground that officials of the defendants were guilty of misfeasance and malfeasance, inasmuch as timber was illegally seized by them. Such findings are based only on the fact that no criminal case was registered/criminal proceedings initiated against the plaintiff.

Having heard learned counsel for the parties, I am of the considered view that such findings being perverse need to be reversed. The lower Appellate Court below has not taken into consideration the relevant statutory provisions, while awarding damages to the tune of Rs. 1,00,000/- in favour of plaintiff. However, I am of the considered view that considering the pleadings and the evidence led by the parties, plaintiff is entitled to receive a sum of Rs. 1,76,988/- alongwith interest at the rate of 6% per annum, as awarded by the lower Appellate Court.

It is an admitted case of the parties that plaintiff owns land in village Bah, Tehsil Sundernagar, District Mandi, Himachal Pradesh. It also stands established from the testimony of plaintiff''s witnesses i.e., Shri Hari Singh (PW-1), Shri Lekh Ram (PW-2), Shri Vinod Kumar (PW-3), Shri Hari Singh (PW-4) as also defendants'' witnesses Shri Jagan Nath (DW-1) and Shri Nauta Ram (DW-2) that plaintiff had applied for felling permission of trees on the land owned and possessed by him. From the documentary evidence i.e., Export Permit dated 29th March, 1997 (Ex. PE) it is also apparent that plaintiff had been accorded sanction to transport the said timber to village Bah. However, it stands established through the testimonies of the relevant witnesses, which fact could also not be disputed during the course of hearing, that plaintiff had actually stacked the timber in village Jabbal and not Bah. It has also come on record that after the timber was seized, same was put to auction pursuant to directions issued by the lower Appellate Court and net value of Rs. 1,76,988/- was fetched.

Undisputedly, timber was seized in village Jabbal for which place plaintiff was not having any authorization/permit/sanction. He could not have transported the same beyond village Bah.

Section 41 of the Indian Forest Act (for short ''the Act'') empowers the State Government to frame Rules to regulate transit of timber. Pursuant to the same, the State Government has framed the H.P. Forest Produce Transit (Land Routes) Rules, 1978. Permission to transport the timber was accorded to the plaintiff, in terms of such Rules. Rule 11 prohibits transportation of any timber, except with the authorization of a competent Officer. Section 42 of the Act authorizes the State Government to impose penalties for contravention of such Rules. Section 52 of the Act also empowers officials of the Forest Department to seize and confiscate such property which is transported without proper authorization. However, Section 68 of the Act empowers the Forest officials to compound the offences/illegalities committed by the persons for violating the provisions of the Act.

In the backdrop of the statutory provisions, of the aforesaid, reasoning adopted by the learned lower Appellate Court to the effect that since no FIR was registered against the plaintiff, officials of the defendants were guilty of malfeasance and misfeasance, is absolutely fallacious and perverse. Registration of FIR is not sine qua non for seizure of the property. Also the forest officials, without registration of case or initiation of criminal proceedings could have themselves compound the offences. Consequently such findings of the lower Appellate court are reversed and it cannot be held that plaintiff is entitled to damages to the tune of Rs. 1,00,000/- from defendant No. 1. The officials had acted bonafidely in exercise of their statutory powers.

It is seen that defendants themselves admitted that plaintiff owned the timber lawfully extracted by him from his land. It also stands established on record that defendants themselves had directed release of the timber, subject to withdrawal of the Civil Suit filed by the plaintiff and also furnishing an affidavit that he shall utilize the same only for the purpose of construction of his house. Now timber stands already auctioned and there is no serious dispute with regard to its ownership. Consequently, decree to the extent that plaintiff is entitled to receive a sum of Rs. 1,76,988/-, being the sale proceeds of 71 scants needs to be upheld. There is nothing on record to establish that auction did not take place in accordance with law or in a fair manner or as per settled principles of law.

Present appeal is partly allowed. Judgment and decree passed by the lower Appellate Court is modified and it is held that plaintiff is only entitled to receive a sum of Rs. 1,76,988/- alongwith interest at the rate of 6% per annum as awarded by the Court below in terms of the decree. Cross Objections are dismissed. Substantial questions of law are answered accordingly. In view of the decision of the appeal pending applications are dismissed as not pressed, with liberty reserved to the applicants to move fresh applications for release of the amount.