IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No. 7 of 2003 Judgment reserved on: 26.11.2008 Date of decision : December 29, 2008 Anant Ram Negi ..Appellant Versus. State of H.P. & ors. ……… Respondents. For the Appellant(s) : Shri G.D.Verma, Sr. Advocate with Shri B.C.Verma, Advocate. For the Respondent(s): Shri R.M.Bisht, Deputy Advocate General for respondents 1 to 3. Shri Neel Kamal Sood, Advocate, for Respondents 4 & 5. ( Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge . The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting ? Deepak Gupta, J . This appeal under Section 96 CPC has been filed against the judgment of a learned Single Judge in Civil Suit No. 2 of 1998 decided on 3.1.2003 whereby the suit filed by the plaintiff for the recovery of Rs. 14,64,111/- was dismissed. Briefly stated the facts of the case are that the plaintiff in the year 1980, purchased Deodar, Kail, Rai and Fir trees of - 2 - different classes in chak Dabur within Forest Range, Deha, Tehsil Theog, District Shimla from various land owners. The land of the private owners was got demarcated from the competent revenue officers in the presence of the officials of the forest department. Thereafter trees were marked by the forest department and due permission was given to the plaintiff for felling of the trees. The plaintiff felled the trees and converted into timber i.e. 797 scants of Deodar, 457 scants of Kail and 584 scants of Rai. At this stage, the forest department officials and the police seized the entire timber under the provisions of the H.P.Land Preservation Act on the ground that the felling has been done in violation of the H.P. Land Preservation Act. Cases under sections 3, 4 and 16 of the H.P. Land Preservation Act and Sections 41/42 of the Indian Forest Act were registered against the plaintiff. On completion of the investigation, charge-sheets were filed against the plaintiff and criminal case Nos. 368/1 of 1983, 274/1 of 1982, 365/1 of 1983 and 1/1 of 1984 were registered against the plaintiff and others which were tried by the S.D.J.M, Theog. All the trials ended in the acquittal of the plaintiff vide judgments dated 31.3.1986, 27.9.1985, 30.6.1986 and 27.9.1985. Though the trial court - 3 - acquitted the accused, it ordered that the seized trees and timber be confiscated to the State. Aggrieved by these orders, the plaintiff preferred appeals/revisions before the learned Sessions Judge, Shimla against the orders of confiscation. The learned Sessions Judge, ordered release of the seized timber in favour of the rightful owner. Thereafter the State aggrieved against the orders of the learned Sessions Judge, preferred Criminal Revisions No. 32, 44, 45 and 31 of 1988 in the High Court which were dismissed on 22.12.1992. It would be pertinent to mention that the plaintiff moved an application before the trial Court praying that the seized timber which was deteriorating be put to auction. The application was allowed and the trial Court was directed that the timber be put to auction by the Divisional Forest Officer through Forest Corporation after due publicity in accordance with law. The plaintiff was also allowed to join the auction. The State, however, moved an application before the learned Sessions Judge on 23.3.1982, claiming that the case stood admitted in the High Court and the High Court has ordered that it be ensured that the case property be not destroyed by the quarters concerned, whereas no such orders were passed by the - 4 - High Court. However, during the pendency of the revision petitions, the High Court vide its order dated 26.8.1988 ordered that the seized timber be put to auction by defendant No. 4 in accordance with the rules and procedure and the net sale proceeds be deposited in the Registry of the High Court. The plaintiff was allowed to bid in the auction. The defendant No. 4 sent a telegram on 3.11.1998 to the plaintiff intimating him to attend the auction on 4.11.1998. The said telegram was received at Post Office, Kotkhai on 5.11.1988 and was delivered to the plaintiff on 9.11.1988 when the date of auction was over. The plaintiff objected to the legality of the auction on the ground that he was not given timely intimation and that superior quality and grade of timber had been sold at through-away prices. The plaintiff also claimed that deliberate attempt had been made by the defendants to sell the timber in a manner so as to deprive the plaintiff of his valuable right resulting in great financial loss to him and the auction itself was deliberately delayed despite orders of the High Court. Thereafter the plaintiff moved an application in the High Court for release of the amount deposited by the defendants. The auction price of the timber was Rs. 4,32, 233/- which was paid - 5 - to the plaintiff. However, according to the plaintiff, the price of the seized timber in terms of the rates fixed and notified vide communication dated 19.4.1988 works out to Rs. 10,0489/-. Therefore, the plaintiff claimed to be entitled to the remaining amount of Rs. 5,68,256/- and interest thereon @ 18% per annum with effect from 27.10.1988 till 31.7.1997 i.e. Rs. 14,64,111/- in all. The defendants contested the suit on various grounds. It was alleged that the suit was barred by limitation and no notice under Section 80 CPC had been served upon the defendants before institution of the suit. Various other preliminary objections were raised. On merits, the fact of taking into possession the timber and selling the same was not denied by the defendants. It was, however, claimed that the plaintiff had felled the trees in violation of the provisions of the H.P. Land Preservation Act and, therefore, not entitled to compensation for the same. The valuation of the timber as claimed by the plaintiff was denied. According to the plaintiff, the timber was guarded properly. The Forest Corporation in addition to other pleas also took the plea that the timber was exploited as per settled norms and the total value of the timber realized was - 6 - deposited in the Court after deducting the actual expenses and commission charges. It was stated that the notice of the auction was given in time to the plaintiff. On the pleadings of the parties, the following issues were framed:- 1. “Whether 797 scants of Deodar total volume 2269.27 CFT, 457 scants of Kail volume 1520.29 CFT, 584 scants of Rai volume 1893. 22 CFT belonging to the plaintiff were wrongfully seized by the defendants from the custody of the plaintiff, as alleged? OPP 2. What was the value of the timber so seized by the defendants? OPP 3. Whether defendants failed to take due care to preserve the quality and quantity of the seized timber resulting in deterioration in the quality and value of the seized timber, if so, its effect? OPP 4. Whether the defendants 4 & 5 derelicted in conducting the sale of the seized timber without due publicity about auction thereof behind the back of the plaintiff resulting in fetching low sale price of the timber, as alleged? OPP 5. Whether the defendants 4 & 5 intentionally and unjustifiably failed to render true and proper accounts of the volume and sale proceeds of the seized timber which was taken over by them from defendants 1 to 3, as alleged? OPP 6. Whether the plaintiff is entitled for the amount claimed or any other amount as compensation for damages caused by the negligent acts, deeds and conduct of the defendants and from whom? OPP 7. Whether the suit is time barred OPD - 7 - 8. Whether the plaintiff has no cause of action to institute the present suit? OPD 9. Whether a notice under Section 80 CPC has not been duly and properly served by the plaintiff on the defendants? OPD 10. Whether the plaintiff is estopped from instituting the present suit due to his acts of omission and commission? OPD 11. Whether the suit is barred by the principles of res judicata? OPD 12. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? OPD 13. Whether the suit is liable to be dismissed under Order 7 Rule 11 (d) of the CPC? OPD 4 & 5. 14. Relief.” The learned Single Judge decided issues No. 1, 3, 7, 8, 9, 10, 11, 12 & 13 in favour of the plaintiff and against the defendants. Issues No. 2, 4,5 & 6 were decided in favour of the defendants and against the plaintiff and the suit filed by the plaintiff was dismissed. Aggrieved by the said judgment, the plaintiff has filed this appeal. The following point arises for decision in this appeal: Whether the plaintiff is entitled to recover the value of the timber? If so, what is the value thereof? - 8 - In the present case, the learned Single Judge came to the conclusion that the plaintiff failed to prove that the value of the timber was more than of Rs. 4,32,233/- which was paid to him pursuant to the auction of the timber. According to the plaintiff, his timber was of Samudha i.e. Class ‘A’ quality timber. The defendant did not admit this value. The learned Single Judge rightly came to the conclusion that other than bald statement of the plaintiff, there is no other material on record to show what was the value of the seized timber. In fact, the plaintiff in his statement has also not clearly stated what was the value of the timber. His only allegation is that the timber was Class ‘A’ timber and he has calculated the loss as per report Ex.PW-9/A. In this case, the documents on record especially PW-9/R and PW-9/V clearly belie the statement of the plaintiff that the entire timber was Samudha or Class ‘A’ timber. These reports themselves show that there were a large number of Ballies and Dim Dimas which were not definitely Samudha or Class ‘A’ timber. It was for the plaintiff to prove the market value of each lot of timber on the date when the same was auctioned. In the present case, the timber and trees were sold in different lots on - 9 - different dates. One rate of 1988 could not be applied to all these cases. The plaintiff should have co-related the timber initially seized with the timber sold in the lots and should have worked out the market value on each date when the timber has been sold. This has not been done. The plaintiff has miserably failed to prove the value of the timber or the loss, if any, suffered by him. The learned Single Judge has rightly dismissed the suit. We find no merit in this appeal which is accordingly dismissed. No costs. ( Deepak Gupta ), J. December 29, 2008. ( V.K.Ahuja ), J. s.