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2015 DIGILAW 421 (JK)

State of Jammu & Kashmir v. Taja Begum

2015-08-19

HASNAIN MASSODI, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This appeal is filed by the State under Section 52-G of the Forest Act, 1987, against the order passed by the One Man Forest Authority, Srinagar, dated 04.06.2004, rejecting the claim made by the appellants/State, seeking claim against the respondents to the tune of Rs. 77,99,995.26. By the same order the counter claim made by the respondents was also rejected against which no appeal has been filed. Brief facts necessary for disposal of the appeal are that, the State entered into lease agreement with the respondent Firm (now represented by the legal heirs). The lease agreement was considered by this Court and was found to be void ab-initio in the decision reported in AIR 1974 J & K 1 : 2010 (9) JKJ 755 [HC] (State v. M/s. Goodwill Forest lessee). As the advantage has flown in favour of the persons in whose favour lease agreements were granted and they have got undue benefits because of the lease agreements, in order to avoid the lengthy and cumbersome procedure to be followed by filing a suit for recovery of money, the Government of J & K by virtue of under Section 122 of the Constitution of J & K, amended the Forest Act by enacting the J & K Forest Amendment Act 1974 and added Sections 52-A, 52-B, 52-C, 52-D, 52-E, 52-F, 52-G and 52-H. In exercise of powers conferred under Section 52-C of the amended Act the Government constituted the Forest Authority to decide the recovery proceeds. The appellants filed a suit for recovery of Rs. 77,99,995.26, as compensation advantages and benefits derived by the respondents from Compartment No. 48/Rajwar before the One Man Forest Authority, Srinagar (for short "the Authority" hereafter). It was pleaded in the said suit that the lease agreements executed by the State with the respondents on 20.01.1964 under which the Forest Department had leased out Forest Compartment No. 48/Rajwar to the respondent firm, having been declared void the benefits which had accrued to the respondents were to be calculated and determined. The said claim was made on the ground that materials/timber extracted and sold year wise was to be Assessed on its market; value at that time. The said claim was made on the ground that materials/timber extracted and sold year wise was to be Assessed on its market; value at that time. The extraction of Deodar, Kail and Fur trees from 1964 to 1970 was carried out and the Authority was requested to determine the quantum of the benefits derived by the respondents. The said claim was resisted by the respondents who also filed a counter claim against the appellants and the Authority framed 9 issues. After considering the evidence on the side of the appellants the Authority rejected the claim on 04.06.2004. 2. The said order is challenged in this appeal by contending that the Authority failed to determine the extent of advantage or benefits or the value thereof derived by the respondents on account of the agreement dated 20.01.1964. The Authority also failed to determine that what advantage has flown to the respondent and the Authority had banked upon the oral evidence of the respondents and has not considered the documents of the appellants and the fact that how much timber was extracted and sold by the respondents. 3. The learned counsel appearing for the appellants reiterated the said grounds raised in the appeal and argued that the order dated 04.06.2004 having been passed without appreciating the documentary evidence produced and being based on oral evidence. The same is liable to be set aside and appeal deserves to be allowed. 4. Learned counsel appearing for the respondents, on the other hand, argued that the Authority has gone into the merits of the contentions raised and after properly appreciating the evidence, both oral and documentary, has found the claim made by the appellants un-sustainable and rejected the claim and factual findings having been rendered on appreciation of evidence by the Authority, which is a fact finding Authority, appellants are not entitled to seek for setting aside the order by re-appreciation of evidence and, therefore, the order is perfectly legal Learned counsel also heavily relied on the non-cooperation of the appellants in concluding the claim petition which was filed on 22.01.1976 and could be disposed of only on 04.06.2004 and the anguish expressed by the Authority, particularly in paragraph No. 6 of the order. 5. We have considered the rival submissions and perused the order by the Authority. 6. 5. We have considered the rival submissions and perused the order by the Authority. 6. The appellants along with the appeal, which was filed in the year 2005, have not chosen to file the copies of the documents on which they rely as well as the oral evidence adduced before the Authority inspite of the fact that the matter is pending for about ten years. However, the records from the Authority were called from and the same has been placed before us for perusal. Based on the materials available we have decided to proceed with the matter on merits. 7. The agreement was executed between the Forest Department of the State and M/s. Abdul Gani & Company for leasing out Forest Compartment No. 48/Rajwar situated in Forest Division Langate, for an amount of Rs. 26,49,411.17 as royalty for extraction of timber by felling, cutting, sawing and transportation etc. of the marked trees of Deodar, Kail and Fur. Extension of the lease was granted and the lease subsisted till 1967. After extraction of work the Compartment was handed over to the Department by the respondents and they have paid a sum of Rs. 22,05,694.74 as against royalty and a sum of Rs. 5,41,155 was outstanding. The said amount was ordered to be recovered as arrears of land revenue in accordance with the relevant provisions of law. Some timber was also attached from the possession of the respondents. They challenged the said attachment before this Court and the Division Bench of this Court in the decision reported in AIR 1974 J & K 1 : 2010 (9) JKJ 755 [HC] (supra) declared the lease agreement as void ab-initio as being violative of Section 122 of the Constitution of J & K as the same was entered upon by an incompetent person on behalf of the State. The plea for referring the matter for arbitration was also rejected by order dated 10.01.1975. Thereafter the appellants chose to agitate the matter before the Authority. 8. The total recovery of amount prayed for was Rs. 77,99,995.26. In addition thereto as enhanced liability as per prevalent rates of timber extracted and sold by the respondents. Respondents have put up a counter claim to the tune of Rs. Thereafter the appellants chose to agitate the matter before the Authority. 8. The total recovery of amount prayed for was Rs. 77,99,995.26. In addition thereto as enhanced liability as per prevalent rates of timber extracted and sold by the respondents. Respondents have put up a counter claim to the tune of Rs. 5,85,411.17 on the ground that during the subsistence of the lease agreement, extraction of timber could not be made due to Indo-Pak War of 1965 and only 2/3rd of the total number of the trees could be felled and removed and thereby loss to the above said amount had occurred. The Authority framed nine issues as follows:- "1. Whether the Conservator of Forests is competent to verify the petition? OPR. 2. What is the quantum of advantages or benefits derived by the respondents from the void lease agreement in question. What is the amount payable to the State on account of such advantages or compensation thereof? OPR 3. Whether the State was entitled to recover interest in respect of the benefits derived by the respondents and what is its extent? OPR 4. Whether all the liabilities flowing from the void lease agreement are enforceability so, how? OPR. 5. Whether the marking list wrongly show a small volume of timber as unfit while actually a large quantity of timber in the leased out coupe was unfit, if so what is its effect? OPR 6. Whether the petition is bad in law for want of court fee? OPR 7. Whether the petition is misconceived and legally not maintainable? OPR 8. Whether the petitioners are not entitled to claim advantage at the present market value? OPR 9. Relief." 9. Issues Nos. 1, 6 and 7 have no relevance to the appeal preferred. Issue Nos. 3, 4, 5 and 8 are the relevant issues on which the whole substance of the controversy lies. The quantum of advantage derived by the respondents, interest payable and the effect of the claimed faulty marking of the trees in the leased Compartment was focused by the Authority with regard to the quantum. It is noticed that even if the lease agreement is void, the advantage or the benefit derived by any person from extraction of timber or sale of forest produce, can be determined. It is noticed that even if the lease agreement is void, the advantage or the benefit derived by any person from extraction of timber or sale of forest produce, can be determined. The claim can be decided only on the basis of the evidence deriving the actual benefit or advantage minus the payment already made. 10. The department has produced certain officers, namely, Ab. Hamid Wani, who was the accountant in the concerned Forest Division on the relevant date. He has stated about the payment due from the respondents against the royalty payable. He has not narrated anything about the quantum of benefit or advantage derived by the respondents. One Mohan Lal Pandita, the concerned lease clerk also did not state anything even though he was having the knowledge about the matter in question. One R.K. Mattoo who has been the concerned DFO at the relevant timed, also narrated about the allotment of the Compartment to the respondents. He has said nothing about the benefit or advantage derived by the respondents. In the cross examination he has fairly stated that he could not say whether the respondents were benefited from the lease or suffered loss. The Range Officer, namely, Mohi-ud-Din Shah, who did the marking work of the Compartment, deposed about the factum of marking and submission of the report. He does not depose anything about the quantum. He was followed by another Range Officer, namely, Parathvi Nath. He has deposed that the total timber sold to the respondents was 420153 Cft. Comprising of all species and 333 poles below 12" girth. He has also mentioned that 2442 trees were still standing and according to the said witness a total of 80343 Cft. timber was carried out by the respondents from the Forest under Form 25. In the cross examination he deposed that he could not say as to the market price of the timber has fallen or arisen during subsistence of the lease. Another Range Officer, namely, R.K. Kichaloo stated about the supplementary marking and handing over of the Compartment back to the department by the respondents, apart from stating that respondents felled/extracted around 5257 Cft. (30100 logs) from the Compartment as per the felling dairy. However, during the cross examination he could not say as to whether the respondents earned profits or suffered losses. Mr. (30100 logs) from the Compartment as per the felling dairy. However, during the cross examination he could not say as to whether the respondents earned profits or suffered losses. Mr. Sofi, the DFO also testified and stated that he could not recall the events and the departmental counsel himself found that his statement was not relevant to the matter. The Accountant, namely, Hirday Nath of the office of Conservator of Forests has deposed the rates prevalent at the relevant point of time and fluctuations therein. 11. After over all analyzing the evidence, the Authority could not find any substantial and reliable quantum of the benefits derived by the respondents and the evidence not even remotely adduced giving any thing tangible in that direction. The only thing the Authority has found was that till 1965 the respondents have transported total of 80343 Cft. timber from the Compartment under Form-25 issued by the functionaries of the department while total of 2442 trees were still standing and 45 felled trees had not been converted into logs. The Authority in the absence of concrete figures/details gave a finding about the figure of the felled timber as 525700 cft. however, the timber sold to the respondents as 420153 cft. only. Therefore the Authority found that the issues raised, namely, issue Nos. 3, 4, 5 and 8 are not proved. 12. In fact the Authority has recorded its dissatisfaction regarding the delaying tactics adopted by the appellants. It has been stated that after framing the issues on 22.10.1977, the appellant department delayed the process of giving evidence and the evidence given was in installments. From October, 1998 the appellants had not taken care to argue the matter effectively and for five years they were changing the lawyers and seeking for adjournments and in fact the Authority directed to concerned higher authorities to gear up the concerned official machinery for effective prosecution of the running claim petitions. 13. The Authority having thread barely analyzed the evidence and no positive proof having been found, the claim was rejected. The Authority also rejected the counter claim filed by the respondents. Thus it is a case of no evidence to substantiate the claim, which is the factual finding given by the Authority. There is no perversity in the said finding and the Authority has not failed to appreciate any documentary evidence produced worth consideration. The Authority also rejected the counter claim filed by the respondents. Thus it is a case of no evidence to substantiate the claim, which is the factual finding given by the Authority. There is no perversity in the said finding and the Authority has not failed to appreciate any documentary evidence produced worth consideration. In the grounds of appeal also no particular document which the authority failed to consider, is mentioned. It is a settled proposition of law that the appellate Court will not normally interfere with the findings rendered unless the findings are totally perverse and if the documents which are worth consideration, have not been considered. Hon'ble the Supreme Court in the decision reported in 2015 AIR SCW 3810 (Commissioner of Central Excise, Goa v. M/s. Cosme Farma Laboratories Ltd.) considered the power of appellate court in interfering the factual findings recorded by the Tribunal. It is held in paragraph 22 as follows:- "22. ............ Once the Tribunal, after appreciating relevant evidence, has come to a conclusion that the job workers were the manufacturers and the respondent - the loan licensee, was not the manufacturer we see no reason to interfere with the said findings of fact, especially when the same is correct and not perverse. We are, therefore, in agreement with the findings arrived at by the Tribunal that the job workers are the manufacturers." In this case we are not in a position to find any flaw in the order of the Authority to treat the findings as perverse. Hence we are inclined to dismiss the appeal and accordingly, the appeal is dismissed. No costs.