9911796707
TMI Blog2019 (8) TMI 1917X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. The operation and effect of Section 20 of the Act of 1972 - HELD THAT:- 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 - Appellant had no right whatsoever to claim damages with reference to the alleged cause of action based on the order of exclusion dated 19.11.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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 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 - 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. 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 - Appeal dismissed. - ABHAY MANOHAR SAPRE AND DINESH MAHESHWARI, JJ. For the Appellant : A.K. Ganguli, Sr. Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling 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, 1975 Hereinafter referred to as 'the Rules of 1975'. 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 Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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'. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 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 Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite 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 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, 1897 Hereinafter referred to as 'the General Clauses Act'. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. The 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 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 deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Respondent- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompensation 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 17.11.1993, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief? 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 interdepartmental communication made in the year 1987, it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 and 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 and Ors. (2000) 5 SCC 712, the learned Counsel has argued that the action of the authority concerned being not bona fide, the limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. *** *** *** 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 Collector had made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 . The main heading was substituted by Act No. 16 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of any offence against this Act or in the investigation of any such offence. 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. 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 alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The operation and effect of Section 20 of the Act of 1972 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 intest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reinabove, 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 (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 interdepartmental 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93, 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 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, Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
