IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OSA No. 13 of 2002. Reserved on: 07.08.2008 Date of decision: 12.08.2008 Mahendra Pal ... Appellant Versus State of H.P. and others … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Ramakant Sharma, Advocate. For the respondents: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals, for respondents No. 1 and 2. Mr. J.R. Sharma, vice counsel for respondent No. 3. Per V.K. Ahuja, J.: This is an appeal filed by the appellant against the judgment and decree dated 2.7.2002 passed by the learned Single Judge in Civil Suit No. 36 of 1998, dismissing the suit of the appellant for recovery of Rs.35,67,722/- alongwith cost and interest. Briefly stated, the facts of the case are that the appellant as plaintiff filed a suit for recovery of the suit amount. It was alleged by the plaintiff that Kutlehar was a small princely State having 16 Tapas(Tikas) which were known as ‘Kutlehar Forests’. These were managed by the Raja of Kutlehar subject to the terms and conditions specified by the then Government. Such management continued generation after generation and ultimately, the plaintiff was appointed 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 as a Forest Officer in the capacity of Superintendent of Kutlehar Forests under Section 2(2) of the Forest Act by Notification dated 1.10.1958 issued by the Government of Punjab. The management of these forests was taken over by the State Government in pursuant to the provision of the Himachal Pradesh Kutlehar Forest(Acquisition of Management) Act, 1992 as amended by Act No. III of 1994, hereinafter to be referred as ‘the Act’. The said forests were under the charge and management of the plaintiff and he was entitled to dispose of the forest produce such as resin, timber, bamboo, grass etc. in accordance with working plans prepared by the Forest Department. As per the terms and conditions of the management, the plaintiff was entitled to retain 3/4th share of the total income from the said forests and 1/4th share of the gross income was payable to the Government. The entire expenditure on the management and exploitation of the forests had to be incurred by the plaintiff. It was further alleged that respondent No.3 is wholly owned and controlled by the Government of Himachal Pradesh and its function includes exploitation of forests, taking forests on lease, sale of forest produce etc. Pursuant to clause 51 of the Memorandum, the Government of Himachal Pradesh constituted a committee of Officers to determine the price and terms and conditions for the supply of resin, resin blazes etc. vide Notification dated 18.5.1974. This committee, known as ‘Pricing Committee’, decided that royalty will be charged for Kutlehar Forests on the same line as fixed for the Government. During the year 1995 when the management of the Kutlehar Forests was with the plaintiff, he offered 1,33,591 resin blazes to Divisional Manager, H.P. for resin tapping, which were taken over allegedly by defendant No. 3. The price during 1995 was fixed by the Pricing 3 Committee on 25.4.1995 at the rate of Rs.25/- per blaze. Thus, the plaintiff alleged that he was entitled to get a sum of Rs.34,73,366/- towards royalty of resin blazes relating to 1995 season, which was payable in two instalments alongwith interest from the due date till the date of actual payment. The amount was not paid by defendant No. 3 inspite of request by the plaintiff, hence, the suit filed by the plaintiff after issuance of notice under Section 80 C.P.C. The plaintiff alleged that he had challenged the action of defendants in a writ petition which was ultimately dismissed and the present suit for recovery of the amount was filed by the plaintiff. Defendants No. 1 and 2 pleaded that the grant in favour of the plaintiff stood extinguished with effect from 11.3.1995. It was also alleged that the provisions of ‘the Act’ were enforced by the H.P. Government vide Notification dated 10.3.1995 and the plaintiff was asked to hand over the complete charge of the forests which he failed to do and interim orders were passed in the writ petition that the plaintiff would continue with the management of the forests. The said writ petition was dismissed on 9.8.1995 and the position stood relegated to 11.3.1995. But the plaintiff failed to hand over the possession which was taken over in absentia on 7.2.1996. Thus, it was alleged that after 11.3.1995, the plaintiff had no right or title to the resin blazes or its royalty. The grant stood extinguished and all rights, title and interest of the grantee stood vested in the Government free from all encumbrances. Defendant No. 3 took up the plea that since the management changed with effect from the specified date, the plaintiff was not entitled to the amount. 4 On the pleadings of the parties, the following issues were settled by the learned Single Judge:- 1. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP. 2. Whether the plaint is not properly verified? OPD 3 3. Whether the suit has been instituted by competent person? OPD-3 4. Whether the plaintiff is entitled to the suit amount or any other amount? If so, from whom? OPP. 5. Whether the plaintiff is entitled to claim interest on the amount of the royalty? If so, on what rate? OPP. 6. Whether the plaintiff has no cause of action as alleged? OPD. 7. Whether the plaintiff is guilty of acts of suppressio- veri-suggestio false? OPD. 8. Relief. Parties led evidence and the learned Single Judge decided Issues No. 1,2,3 and 7 in favour of the plaintiff and as against the defendants, while Issues No. 4 to 6 were decided against the plaintiff and consequently, the suit of the plaintiff was dismissed in full. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that before the Act came into force with effect from 11.3.1995 the plaintiff had already handed over 1,33,000 blazes in February, 1995 to the Government for extraction of resin and, therefore, once this was done prior to the specified date, the plaintiff was entitled to the amount earned by respondent No. 3 from extraction of the resin from these blazes. It was, therefore, submitted that once blazes had already been handed over to respondent No. 3, the plaintiff was entitled to the value of the resin extracted and as such, the findings of the 5 learned Single Judge to the contrary are liable to be reversed. It was also submitted that the plaintiff had continued in possession till February, 1996 and, therefore, he was entitled to the full amount earned by respondent No. 3 by extraction of resin. On the other hand, learned Deputy Advocate General had submitted that the blazes may have been taken over for extraction of resin but since the actual work started in the mid of March, 1995 and by that time, Notification had already been issued effective from 11.3.1995. Therefore, all the rights of the plaintiff stood extinguished. It was also submitted that the plaintiff has not led any evidence to show that if any resin was extracted prior to 11.3.1995 and, therefore, he had rightly been held not entitled to the recovery of any amount. The facts of the case are not in dispute and it is clear that the management of the Kutlehar Forests was taken under the provisions of ‘the Act’ by the respondents with effect from 11.3.1995. A perusal of Ext.PW3/A, letter written by the plaintiff to respondents dated 3.2.1995, shows that he had informed the department in the year 1995 that 1,33,453 blazes were available for extraction of the resin. The details were furnished by him in the statement. It has to be seen as to whether in pursuance of this letter of the plaintiff whether the actual work of extraction of resin started immediately thereafter or when it started. A perusal of Ext. PW3/C notice issued by respondent No. 3 shows that during the year 1995 for extraction of the resin, tenders had been invited, which were to be sent till 1.3.1995. It is, therefore, clear that if the tenders had been received till 1.3.1995, it may have taken some time to finalize the tenders and then the actual work of resin may 6 have started. According to DW-1 Kirpal Singh, the resin extraction season is between 15th February to 30th November every year. The plaintiff could have been said to be entitled to the amount of resin extracted from the blazes till 11.3.1995 only and not thereafter since he ceased to have any right over the Kutlehar Forests after that date. It was for him to have proved how much resin was extracted till 11.3.1995 to entitle him to the suit amount in which he has failed since the plaintiff himself as PW-9 or any other witness has not stated what work was done till 11.3.1995. In regard to the plea that the plaintiff continued in possession of the Kutlehar Forests even after issuance of the Notification in pursuance to the interim orders passed by the Court in the writ petition. This question was considered by the learned Single Judge who rightly concluded that the right of the plaintiff stood extinguished on and after 11.3.1995 and, therefore, he was not entitled to get any amount of income derived after this date since the writ petition was also dismissed subsequently and no benefit can be taken by him of the interim orders passed by the Court since according to the provisions of the Act he ceased to have any right over Kutlehar Forests after 11.3.1995. He may have illegally not given the charge till February, 1996, even after dismissal of the writ petition in August, 1995 but he was not entitled to claim any right after passing of the Act or after the appointed day. This question has been rightly answered by the learned Single Judge and we have no reason to differ with the same. Moreover, in regard to the income derived from February, 1995 to 11.3.1995 as mentioned above, the plaintiff had failed to prove that any income was derived by respondent No. 3 by extraction of resin and if so, to what extent. A perusal of Ext.PW4/A shows that a certificate was given by an officer 7 of respondent No. 3 that for extraction of the resin, 1,33,453 blazes were received, which were received on 22.3.1995. This document has been proved by the plaintiff himself and in case, these had been received for extraction of resin on 22.3.1995, after the issuance of notification on 11.3.1995, no resin could have been extracted prior to 11.3.1995. How the plaintiff was entitled to the resin extracted prior to this date when these were handed over subsequent to the issuance of notification. This is another reason to hold that the plaintiff was not entitled to any amount. From the above discussion, it follows that the findings of the learned Single Judge on all the issues are based upon correct appreciation of evidence and law and these do not call for an interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. However, the parties are left to bear their own costs. Decree sheet be prepared accordingly. ( Deepak Gupta ), Judge ( V.K. Ahuja ), August 12, 2008 Judge (BSS) 8