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

judgment and decree dated 15.10.2001, as passed by the learned Single

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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  land1 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’.

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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

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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,  19754.  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’.

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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, 18945 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’.

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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

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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.”  

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the Act of 1972, excluded the land in question from the limits of the wild life

sanctuary. 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

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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

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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: -

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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

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2.17. In  order  to  complete  the  chronicle  of  background,  it  may  also  be

noticed  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

17

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. The

Division 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, 195911,

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 documentary

proof 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 197213, 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 on

behalf 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  the

40

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.

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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

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(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

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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 doing or for omitting to 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.

One year

When  the  act  or omission takes place.

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.

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21.2. The appellant, therefore, referred to and relied upon Section 14 of the

Limitation 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

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the matter in issue is same as that of the earlier proceeding. The heading of

this 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 on account 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:

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“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 no

exclusion  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 High

Court 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

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the winding up proceeding could be excluded, the High Court answered in

the 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

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remediless. In the case of Shring Construction Co. (supra), the arbitration

award 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.

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The basic requirement, that the matter in issue in the earlier and the later

proceeding 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

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the writ petition had never arrested such running of limitation. The learned

counsel  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

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say  no  more  because,  read  as  a  whole,  the  said  judgment  dated

18.09.1997,  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.  

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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)      1

New Delhi, Date:  20th August, 2019.

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