IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RFA. NO. 94 of 2003 Judgment Reserved on: 1.9.2009 Date of Decision: 27.10.2009 Mahendra pal …Appellant Versus State of H.P. and Ors. …. Respondents Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? No. For the appellant: : Mr. Ramakant Sharma, Advocate. For the respondents: : Mr. Anshul Bansal, Addl. Advocate General with Mr. R.P. Singh, Assistant Advocate General, for respondents No.1 & 2. Mr. N.S. Chandel, Advocate, for respondent No.3. Kuldip Singh, J The plaintiff has come in appeal against the judgment, decree dated 9.1.2003 passed by learned District Judge, Una in Civil Suit No.83 of 1997, dismissing the suit of the appellant for recovery of Rs.5,89,156/- which was filed by him against respondents. 2. The pleaded case of the appellant is that the Kutlehar was a small princely State in Kangra hills and had 16 tappas (tikas) as _____________________________ whether reporters of Local Papers may be allowed to see the Judgment?Yes 2 forests within civil districts of Kangra now civil districts of Una and Hamirpur. These forests are popularly called as Kutlehar forests. The forefathers of the appellant had managed the Kutlehar forests from generation to generation on terms and conditions laid down by the Government. The appellant was appointed as a forest officer in his capacity as Superintendent of Kutlehar forests under section 2(2) of the Forest Act vide notification dated 1.10.1958 issued by the Government of Punjab. 3. The appellant was competent not only to maintain and preserve the Kutlehar forests, but was also entitled to dispose of forest produce such as resin, timber, bamboos and bhabbar grass, coppice with khair etc. in accordance with the working plans prepared by the forest department. The appellant was entitled to retain 3/4th of the total income derived or derivable from the forests as his personal income whereas 1/4th of the gross income was payable to the Government. The entire expenditure on the management and exploitation of forests had to be incurred by the appellant and his forefathers. The arrangement continued in force till 7.2.1996 when the management and possession of Kutlehar forests were taken over by the department of forest framing and conservation under the Himachal Pradesh Kutlehar forests ( Acquisition of Management) Act, 1992 as amended by Act No.III of 1994. 4. The appellant as Superintendent of the Kutlehar forests used to auction the forest produce of Kutlehar forests in the manner auction held by the Forest Department in respect of the government 3 forests. The highest bidder in the auction used to remove the timber and other forest produce in accordance with the terms of the auction. This practice was terminated when the forests were nationalized by the State Government in the year 1974 and Himachal Pradesh State Forest Corporation was brought into existence. However, in the merged area of Himachal Pradesh on re-organization of the State of Punjab, the practice of auctioning of the forest produce continued to remain in force till 1982-83. In these circumstances, the appellant also followed suit and decided to dispose of the forest produce of Kutlehar forests like timber, resin etc. in favour of the Himachal Pradesh State Forest Corporation ( for short Corporation) in accordance with the terms and conditions which were applicable in respect of the government forests. 5. The Corporation after 1982-83 had been buying, extracting and marketing timber including coppice with khair, pure khair and other forest produce in low lying areas of merged areas of Himachal Pradesh in accordance with the working plans of the State and also from the appellant who had been managing Kutlehar forests. 6. The Govt. of Himachal Pradesh vide notification dated 18.5.1974 constituted a committee of officers to determine the price and terms and conditions for supply of resin, resin blazes, standing trees, coppice with khair and other forest produce to be sold to Corporation from time to time. The notification dated 18.5.1974 was amended by notification dated 20.11.1988 and the State 4 Minister(Forests) of Himachal Pradesh was made Chairman of the Committee. 7. The Pricing Committee on 16.5.1988 had decided to apply decisions of the Pricing Committee to the Kutlehar forests. The Kutlehar forests were equated with the State Forests and the decisions taken in respect of the State forests were made applicable to Kutlehar forests also. 8. The appellant in the year 1987-88 and 1988-89 marked the areas by deliminating the areas as per working plan enforce at that time as detailed below:- Year Species No.of lots No. of trees Volume 1987-99 Chill 8 1990 1822.648 Cum Khair 8 6463 4797.26 Mg Coppice 4 1147 797.44 Mg) with khair Area 109.10 Hect.) 1988-89 Chil 12 7021 4549.959 Cum Khair 6 3552 2605.94 Mg Coppice 5 599 421.49 Mg) with khair Area 101.96 Hect) Misc. 3 1896 174.494 Cum It has been alleged that 46 lots were handed over to the Corporation. The appellant had raised dispute with the Corporation only with respect to the handing over of the coppice with khair lots for the years 1987-88 and 1988-89. The working period of 1987-88 lot was upto 30.6.1988 and of 1988-89 lots upto 30.6.1989. The Divisional Manger (HPSFC) Working division at Dharamshala vide 5 letter dated 23.9.1987 informed the appellant that lot No.4/1987-88 coppice with khair had been inspected and the said lot was not worth working and be deleted from the lists of lots. The appellant vide letter dated 16.11.1987 informed the Divisional Manager (HPSFC) that lot No.4/87-88 relating to the coppice with khair has to be worked by the Corporation in accordance with the sanctioned working plan and policy of nationalization of the Himachal Pradesh Government. The Corporation was bound in law to handle all the marked areas. 9. The Divisional Manager (HPSFC), Dharamshala raised a similar objection with respect to lot No.4/87-88 (sic) and lots No.5/88- 89 coppies with khair for the felling year 1988-89 vide letter dated 13.10.1988. The appellant vide letter dated 27.10.1988 refuted the objection of Divisional Manger (HPSFC) with respect to his letter dated 13.10.1988. It has been alleged that stand taken by the appellant in letters dated 16.11.1987 and 27.10.1988 was accepted by the corporation for exploitation of coppice with khair lots for the year 1987-88 and 1988-89. The corporation, however, did not exploit the lot No.4/87-88, lot No.4/88-89 and lot No.5/88-89 in time. The Divisional Manager (HPSFC) vide letter dated 19.1.1990 had sought extension of time for exploitation of lots, which was extended upto 31.3.1990 on payment of extension fee. The Divisional Manager (HPSFC) vide letter dated 8.6.1990 had requested the appellant to waive the extension fee which was not acceded to by the appellant. 10. The Divisional Manager, Forest Working Division got the accounts reconciled and prepared a reconciliation statement and 6 forwarded the reconciliation statement to the Director North of the corporation on 13.10.1992. In view of revision of rates of various species of forest produce by Pricing Committee fresh statement of accounts was prepared but corporation while preparing a fresh reconciliation statement with malafide intention and to harass and cause financial loss to the appellant, did not include royalty and sales tax etc. in respect of lots in dispute. The appellant is entitled to sales tax, interest, interest on interest, plus amount of extension fee in addition to royalty amount as per norms fixed by the Pricing Committee. The Divisional Manager, Forest Working Division vide letter dated 24.8.1995 informed the appellant that the revised reconciliation statement is correct and nothing is payable in this regard. The appellant has confined his claim in the suit for recovery of 75% ( 3/4th share) as follows:- Rs. 1. Royalty : 1,54,290 2. Sales Tax : 56,573 3. Interest on Royalty : 2,05,686 4. Interest on interest: 1,30,024 5. Extension fee 42,583 Total 5,89,156 11. The appellant had filed CWP No.1923/96 against respondents for not paying the due amount to appellant. The writ petition was dismissed on 13.3.1997 with the observations that the remedy of the appellant is to approach the appropriate Civil Court for getting such relief to which he is entitled to under law. The appellant 7 thereafter issued notice under section 80 CPC on 1.8.1997 to respondents which was responded by the corporation who refused to pay the amount claimed by the appellant. Thereafter the appellant filed suit for recovery of Rs.5,89,156/- alongwith future interest at the rate of 15% from the date of suit till payment as also interest on interest at the rate of 15% per annum as per decision of the Pricing committee till actual payment. The plaint was amended and it was pleaded that in case the appellant is not entitled to interest on interest as prayed then in alternative, interest at the rate of 16.5% be allowed from various dates mentioned in the amended plaint. 12. The respondent No.3 had contested the suit and filed written statement in which preliminary objections such as suit is barred by limitation, suit is not maintainable on account of act, conduct, deeds and acquiescence of appellant were taken. On merits, it was admitted that management of Kutlehar Forests was with the appellant till it was taken over by the respondent No.1 under H.P. Kutlehar forests (Acquisition of Management Act, 1992) w.e.f. 11.3.1995. In reply to para No.14 of the plaint, it was pleaded that the appellant had sent the marking list of lots mentioned in the para under reply. The lots No.4/87-88, 4/88-89 and 5/88-89, coppice with khair were not taken over by the corporation as after the spot inspection, it was found that there was no fuel wood marked trees on the spot as shown in the marking list. These lots were merely marked for bush cutting to clear the area for plantation only. The appellant was informed by the Divisional Manager vide letters dated 8 23.9.1987 and 23.10.1988 to withdraw these lots as there was no fuel wood trees involved in these lots. The Corporation was not supposed to carry out bush cutting in coppice lots. The property remained the property of the appellant. The appellant had no right to prefer any claim against these lots which were not worked out by respondents and remained the property of the appellant. The lots were not workable and therefore, not accepted by the Corporation. In these circumstances, the appellant is not entitled to any royalty. 13. The letters of extension were written after the appellant had promised to mark the trees fresh of the lots. The royalty of the lots was deleted as per the final reconciliation statement. The deletion of the lots was accepted by the appellant as per final reconciliation statement. The appellant had signed the reconciliation statement after proper scrutiny. The appellant is not entitled to any interest. The Forest in question was Government Forest. The lots were not taken over by the Corporation; therefore, there is no question of payment of any royalty and interest to appellant. The claim of the appellant is frivolous. The management of Kutlehar Forests was taken over by the State Government w.e.f. 11.3.1995. The respondent No.3 had prayed for dismissal of the suit. The respondents No.1 and 2 had adopted the written statement filed by respondent No.3. 14. The appellant had filed replication and reiterated the stand taken by him in the plaint and denied the case set up by the 9 respondents. On the pleadings of the parties the following issues were framed:- 1. Whether the suit is not within time, as alleged? OPD. 2. Whether the suit is not maintainable on account of acts, deeds, conduct and acquiescence of the plaintiff, as alleged? OPD 3. Whether the plaintiff is entitled to recover any amount and if so to what extent and from which of the defendant? OPP. 4. If issue No.3 is decided in the affirmative, whether the plaintiff is entitled to interest and if so at what rate? OPP 5. Relief. The issues No.1 to 4 were answered in negative and the suit was dismissed by learned District Judge on 9.1.2003. The plaintiff has come in appeal against the judgment, decree dated 9.1.2003. 15. The learned counsel for the appellant has submitted that issues No.1 and 2 have been decided in favour of the appellant. The respondents have accepted the findings returned on issues No.1 and 2 as respondents have not filed any cross-objections, therefore, only issues No.3 to 5 are left for adjudication in the appeal. It has been submitted on behalf of the appellant that learned District Judge has misconstrued and misinterpreted material on record in deciding issue No.3 against the appellant. The appellant is entitled to interest on the suit amount as prayed. The learned counsel for the respondents has supported the impugned judgment, decree. 16. The claim of the appellant in short is for paying of his share of royalty in the forest produce extracted by the respondents from lots in question. He has also claimed sales tax, interest on delayed payment and interest on interest along with extension fee. 10 The claim of the appellant for payment of interest on royalty, interest on interest and extension fee is covered by the judgment of the Apex Court between the parties and reported in State of H.P. vs. Raja Mahendra Pal and others (1999) 4 SCC 43. It has been held in that case that the appellant was not equivalent to State Government and was not entitled to any extension fee, interest on royalty and interest on interest. Therefore, the appellant is not entitled to any extension fee, interest on royalty and interest on interest. 17. The claim of appellant for payment of sales tax is connected with his claim with respect to payment of royalty. The appellant has claimed royalty for lots No.4/87-88, 4/88-89 and 5/88- 89. The case of the appellant is that in the aforesaid lots khair trees were marked by him according to the working plan prepared by the forest department and the lots were handed over to the Corporation for extraction. On the contrary, the respondents have taken the stand that there was no fuel wood trees in the lots and only bushes were there in the lots. The Corporation had not worked out the lots and therefore, Corporation is not liable to pay royalty. The terms and conditions on which the lots were allotted to the Corporation have not been proved and a finding to this effect has been recorded by learned District Judge. At the time of hearing of the appeal also terms and conditions on which lots were allotted to corporation for extraction were not pointed out. It has, however not denied that the rates for payment of the forest produce were determined by a Pricing Committee constituted by the State of H.P. The actual felling of trees 11 was to be done by the Corporation; hence, royalty could be paid to the appellant by the corporation, if some trees were actually extracted from the forest. The appellant has not established on record that actually forest produce was extracted by the corporation from the lots in question. 18. The lists Ex.PW-3/E and Ex.PW-3/I, according to the appellant were supplied to the corporation for extraction of timber and fuel wood. These lists included the lots No.4/87-88, 4/88-89 and 5/88-89. The corporation did not find fuel wood trees on the spot as per lists. In this connection, letters Ex.D3W1/A and Ex.D3W1/B were written by the Divisional Manager of the corporation to appellant, clearly brining to the notice of the appellant that these lots were not having fuel wood and were having only bushes and therefore, these lots were to be withdrawn. The applicant however did not accept the request of the Corporation to withdraw the lots. It has been contended on behalf of the appellant that lots were marked as per the working plan of the forest department and therefore, Corporation was bound to work out the lots in question. There is no force in this contention for the reason that working plan was prepared by the State Government whereas Corporation is independent body. The Corporation has right to projects its own case when it came to the notice of the Corporation that there were no fuel wood trees in the lots and only bushes were existing on the spot. The learned counsel for the appellant has not pointed out from the record existence of binding term or statutory provision compelling the Corporation to work 12 out the disputed lots on the face of the stand of the Corporation that there were no fuel wood trees in the lots. 19. The appellant has placed nothing on record that Corporation in fact had worked out the lots. It has come on record in the evidence of the corporation that at the time of inspection of the marked trees on the basis of marking lists supplied by the appellant regarding lots in question, no fuel wood trees were found marked on the spot. It has also come in evidence that bushes were present on the spot. The appellant himself could not prove his case. He has contended that he has not maintained any record pertaining to the actual felling of trees carried out by the Corporation in the disputed lots. He has stated that he had handed over the lots to the State. In normal course it was expected from the appellant to prepare a list of record which was allegedly handed over to the State. The appellant has failed to prove that any trees or fuel wood trees were actually extracted from the lots in question. The respondent No.3 is a Corporation. It is reasonable to infer that the corporation maintains record. The appellant could summon the relevant record from the Corporation to show that in fact trees or fuel wood trees were actually extracted by the corporation from the lots in question. It is not the case of the appellant that the Corporation even though extracted the trees and fuel wood trees from the lots but did not maintain the record. The appellant has miserably failed to prove that in fact trees and fuel wood were extracted by the Corporation from the lots in question. 13 20. The appellant cannot take any assistance from the letters Ex.PW3/N dated 19.1.1990 and Ex.PW-3/O dated 8.6.1990 of the Divisional Manager seeking extension of time of working period regarding lots. These letters at the most prove that at one point of time Divisional Manager had requested for extension of time but these letters no where establish that the Divisional Manager has admitted that there were trees or fuel wood trees in the disputed lots. It has come on record that before writing aforesaid letters the Corporation had already informed the appellant vide letter Ex.D3W1/A dated 13.10.1988 and letter Ex.D3W1/B dated 23.9.1987 for withdrawing the lots due to non availability of fuel wood in the lots. In the application for extension of time made by Divisional Manager too much cannot be read. The extension letters nowhere proves that the lots were in fact worked out. The reconciliation statement Ex.PW3/R was prepared on 29.4.1995 and was signed by appellant. The clarification sought by the appellant with respect to disputed lots was answered by the Corporation vide letter Ex.PW3/Q dated 24.8.1995. The reconciliation statement Ex.PW3/R does not show that royalty and sales tax etc. are payable to the appellant as claimed by him. The appellant has not projected his case that amount claimed by him on account of royalty and sales tax etc. has been shown in the reconciliation statement Ex. PW- 3/R Once appellant has signed Ex.PW3/R, it is reasonable to infer that he accepted the reconciliation statement Ex.PW-3/R, therefore, appellant is not entitled to ask more what was recorded in reconciliation statement Ex.PW-3/R. Thus 14 seen from any angle the appellant has failed to make out any case. The learned District Judge has considered the case of the appellant properly. In view of material on record, it is not possible for me to take a contrary view. There is no merit in the appeal. 21. No other point was urged. 22. The result of the above discussion, appeal fails and is accordingly dismissed. ( Kuldip Singh) Judge October 27, 2009 (sks)