Dinesh Maheshwari, J. - (1.) Introduction 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 land 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, Nanguneri (Hereinafter referred to as 'the Mutt'.) 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, 1972 (Hereinafter referred to as 'the Act' or 'the Act of 1972'.) 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 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 impugned judgment and decree dated 26.02.2007, reversed the decree of the learned Single Judge and dismissed the suit. Hence, the plaintiffappellant has preferred this appeal. 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 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 land[1] 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, Nanguneri (Hereinafter referred to as 'the Mutt'.) 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, 1972 (Hereinafter referred to as 'the Act' or 'the Act of 1972'.) 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 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 impugned judgment and decree dated 26.02.2007, reversed the decree of the learned Single Judge and dismissed the suit. Hence, the plaintiffappellant 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:- 2.11. 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 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 order . 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 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, 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 District Collector. We shall refer to the question relating to the alleged permission of the said Commissioner hereafter a little later.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 interdepartmental 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 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, 1894 (Hereinafter referred to as 'the Act of 1894'.) 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'.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 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 order[2] .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 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 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 intracourt 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 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 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.[3]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.[4]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 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 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: - JUDGEMENT_71_LAWS(SC)8_2019_1.html ;