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2021 DIGILAW 959 (KAR)

Sidramayya v. State of Karnataka

2021-11-24

M.G.S.KAMAL

body2021
JUDGMENT : M.G.S. Kamal, J. 1. This Regular First Appeal is filed under Section 96 of Code of Civil Procedure by the plaintiffs being aggrieved by the judgment and decree dated 07/01/2020 passed in O.S. No. 76/2015 on the file of the Prl. Senior Civil Judge and CJM, Bidar, on I.A. No. V filed by the defendant Nos. 2 and 3 under Order VII Rule 11(d) of CPC, seeking rejection of plaint on the ground of non-compliance of statutory requirement as provided under Section 114 (A) of the Karnataka Forest Act, 1963 (hereinafter referred to as 'the Act'). Accepting the said application, the Trial Court by the impugned order dismissed the suit. 2. The brief facts of the case are that, the plaintiffs claiming to be the absolute owner in possession and enjoyment of the suit land bearing Sy. No. 120/1 measuring 3 acres 14 guntas and Sy. No. 120/3 measuring 02 acres 33 guntas, both situated adjacent to each other having common boundaries on the East by: road, West by: land of Sy. No. 121, North by: PWD road to Bhalki and on the South by: land of Laxmibai, situated in the Kolar-K village, Bidar Taluk and District had filed the suit in O.S. No. 76/2015 for permanent injunction against the defendants namely, (1) The State of Karnataka represented by Deputy Commissioner, Bidar, (2) The District Forest Officer, Bidar and (3) The Range Forest Officer, Sub-division, Bidar Tq and Dist Bidar. 3. The defendants filed the written statement, issues were framed. When the matter was posted for evidence of defendants, defendant Nos. 2 and 3 came up with an application under Order VII Rule 11 of CPC on the premise that appellants/plaintiffs herein have not complied with the mandatory requirement as contemplated under Section 114(A) of the Act by issuing a month's notice of prior to filing of the suit. Hence, sought for rejection of the plaint. 4. In response to the said application, the plaintiffs filed statement of objection contending that they sought for dispensation of issuing notice under Section 80(2) of CPC and that the said dispensation was sufficient enough to maintain the suit. Hence, sought for rejection of the plaint. 4. In response to the said application, the plaintiffs filed statement of objection contending that they sought for dispensation of issuing notice under Section 80(2) of CPC and that the said dispensation was sufficient enough to maintain the suit. As there was urgency in filing and obtaining interim order, the Court had dispensed with issuance of notice under Section 80(2) of CPC and also entertained the application under Order 39 Rules 1 and 2 of CPC, granted interim order restraining the defendants from obstructing the peaceful possession and enjoyment of the suit land by the defendants. It is further contended that the plaintiffs have not alleged commission of any wrong act under colour of the duty by the defendants, which attracts the offence as contemplated under Section 114(A) of the Act. As such, the provision of Section 114(A) of the Act was not applicable to the instant suit. As the plaintiffs had only filed suit for declaration and injunction claiming themselves to be the absolute owners of the suit land there was no impediment in maintaining the same. Hence, sought for rejection of the application. 5. The Trial Court, taking note of the plaint averments, held that the plaintiffs had not complied statutory requirement as provided under Section 114(A) of the Act and accordingly allowed the application and dismissed the suit. Aggrieved by the same, plaintiffs are before this Court in the present appeal. 6. Sri Ravi B. Patil, learned counsel for the appellants reiterating the grounds urged in the appeal submitted that while considering the application under Order VII Rule 11(d) of CPC, the Court is required to look into the averments made in the plaint alone and not the defense set up by the defendants. He further submits that the plaintiffs have not pleaded anything in the plaint with regard to any violation of the provision of the Act committed by the defendants to attract the provision of the said Act for rejection of the plaint. He further submits that the dispute is purely of civil in nature, based on the title and provisions the Act was therefore, not applicable. He further submits that the dispute is purely of civil in nature, based on the title and provisions the Act was therefore, not applicable. He further submits that the defendants having filed the written statement and after framing of issues the plaintiffs having been examined and elaborately cross examined by defendants were not entitled to file application at belated stage and that the Trial Court without taking into consideration of the said facts and circumstances has committed an error in dismissing the suit. He relied upon the following judgments in support of his submission: a. The order passed by this Court in W.P. No. 46713/2011 dated 08.03.2012 in the case of The State of Karnataka vs. M/s. Mercara Rubbers Ltd. b. The order passed by this Court Criminal Petition No. 8196/2013 dated 17.01.2014 in the case of the Sri Raghu D. vs. Sri Nelakanta Channappa. c. The judgment of the Apex Court reported in (2003) 1 SCC 557 in the case of Saleem Bhai and Others vs. State of Maharashtra and Others. d. The judgment of this Court reported in 2017 (2) KU 681 in the case of Madeppa alias Shivalingappa alias Madiwalappa and Others vs. Madiwalappa and Others. e. The judgment of the Apex Court in Civil Appeal No. 2273/2002 Sudhir G. Angur and Ors. Vs. M. Sanjeev and Ors. f. The judgment of this Court in RFA No. 988/2013 in the case of Smt. Jeanne Pinto vs. Deputy Conservator of Forests dated 06.01.2021. g. The judgment of this Court in RFA Nos. 152/2002 and 186/2002 in the case of The Deputy Conservator of Forest vs. T.K. Thammanna Gowda dated 28.06.2010. 7. Per contra, Smt. Maya T.R., the learned High Court Government Pleader appearing for the respondents/defendants submitted that an application under Order VII Rule 11(d) of CPC can be filed at any stage of the proceedings and there is no such bar that the said application needs to be filed at the initial stage. She further submits that the application under Order VII Rule 11(d) of CPC was filed only taking into consideration the plaint averments and no defence was set up. She further submits that the Trial Court has taken into consideration only plaint averments and not the material defence placed by the defendants. She further submits that the application under Order VII Rule 11(d) of CPC was filed only taking into consideration the plaint averments and no defence was set up. She further submits that the Trial Court has taken into consideration only plaint averments and not the material defence placed by the defendants. Referring to Section 114-A of the Act, she submits that the plain reading of Sub-Section (2) of Section 114-A of the Act mandates that before filing a suit against any of the Forest Officers complaining of any wrong on their part, it is mandatory on the part of the plaintiffs to have issued one month's notice as contemplated thereunder and the plaintiffs in the instant case not having complied such statutory provision, were not entitle to maintain and prosecute the suit. Thus, she submits no error could be found with the order passed by the trial Court. She relied upon the following judgments in support of her submission: a. The judgment of the Apex Court dated 04.10.2019 in the case of Nusli Neville Wadia vs. Ivory Properties and Ors. passed in Civil Appeal No. 3396/2015 also reported in 2020 (6) SCC 557 . b. The judgment of the Apex Court in the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali Gajra((D) the Lrs. & Ors. passed in Civil Appeal No. 9519/2019 disposed off on 09.07.2020. 8. Heard the learned counsel for the parties. 9. On thoughtful consideration of the submissions made by the learned counsel for the parties, the only point that arises for consideration is: "Whether the Trial Court was justified in dismissing the suit of the plaintiffs for non compliance of the statutory provisions under Section 114-A of the Karnataka Forest Act, 1963? 10. Before adverting to the submissions made by the parties, it is necessary to refer to the averments made in the plaint. At paragraph No. 2, 5, 6, 7 and 9 of the plaint, the plaintiffs has pleaded as under: "2. That, the defendant No. 1 is the Deputy Commissioner, representing the state of Karnataka, the defendant No. 2 is the District forest officer, having control over the forest area at Bidar District and the defendant-3 is the Range forest officer, of Bidar division in Bidar, Taluq. That, the defendant No. 1 is the Deputy Commissioner, representing the state of Karnataka, the defendant No. 2 is the District forest officer, having control over the forest area at Bidar District and the defendant-3 is the Range forest officer, of Bidar division in Bidar, Taluq. All the defendants have no concerned either with ownership or with possession of the suit lands, and both the suit lands, are not at all the forest lands, and the Government has not acquired the suit lands, for the forest purpose at any point of time,. But all the defendants without having any right and interest over the suit lands are illegally interfering and obstructing into the peaceful possession and enjoyment of the plaintiffs, over the suit lands and are illegally claiming the suit lands as a forest lands." "5. That, both the plaintiffs in order to make the suit lands fit for cultivation have filed an application before the defendants No. 2 and 3, for seeking permission to cut the trees and accordingly the office of the defendants 2 to 3, have verified their office records, in their office, and also called for the report from the Circle office and also from the forest settlement office Bellary and all the concerned officers and even office of the defendants 2 and 3 after conducting due enquiry have come to the conclusion that, both the suit lands, are Patta lands, and the above said lands i.e. suit lands, have not been acquired by the Govt. for forest purpose, and also no compensation was paid to the owners of the suit lands, and accordingly permission was granted to both the plaintiffs, to cut the trees and it is further submitted that, for cutting the trees, the office of the defendants No. 2 and 3, have charged Rs. 15,763/- and accordingly the plaintiffs have deposited the said amount, in the office of defendants No. 2 and 3, have granted permission to the plaintiffs to cut the trees, on 23.09.2013, in File No. A-5/Patta/JB/CR-12/2013-14, and made the suit lands fit for cultivation and have even grown the crops in the suit land last year, and also in the year 2013-14. And in this way the plaintiffs are in lawful possession over the same. 6. That, due to oversight, wrongly the name of forest department was appearing in the column No. 12/2, of both the suit lands, Sy. And in this way the plaintiffs are in lawful possession over the same. 6. That, due to oversight, wrongly the name of forest department was appearing in the column No. 12/2, of both the suit lands, Sy. No. 120/1 and Sy. No. 120/3, situated at village Kolar-K Tq. Bidar. The plaintiffs have filed an application before the Asst. Commissioner, Bidar and the Asst. Commissioner Bidar, has called for the report, from the office of Tahasildar Bidar, and the Tahasildar after due enquiry has submitted his report to the Asst. Commissioner, Bidar on 29.01.2007, in file No. RRT/CR-6/2006-07, and reported to the Asst. Commissioner. That, the land Sy. No. 120/1 and 120/3, are the Patta lands, and there is no record to show that, the suit lands have been acquired by the Forest Dept. and accordingly submitted his report, recommending to delete the name of forest department from the ROR of the suit lands in column No. 12/2 and accordingly the learned Asst. Commissioner, Bidar, on the basis of report of Tahsildar, and also on the basis of enquiry report, submitted by the Tahsildar, and other documents, has passed the order on 22.02.2007, in file No. KM/ARA/RT/CR-47/2006-07 and, and directed to delete the name of forest department which is wrongly coming in the ROR of the suit lands, in the column No. 12/2. In this way, the order passed by the Asst. Commissioner has not been challenged by the defendants 2 and 3 before any of the competent authority and same became final. And now the defendants have no right, to interfere and obstruct into the peaceful possession and enjoyment of the plaintiffs over the suit lands. 7. That, this year in the month of April, 205, the plaintiffs have ploughed the suit land with the help of tractor and made the suit lands fit for cultivation and now the plaintiffs are intending to grow Zinger crop in the suit lands, but in the mean time, the office of the defendant No. 2 and 3 by passing another order on 15.05.2015 in file No. A-5-Patta-JM/CR-12/13-14, have directed its officers to withdraw the order of permission granted to the plaintiffs, to cut the trees in the suit lands, by wrongly holding that, the suit lands are forest lands. It is further submitted that, the defendants 2 and 3 have not at all acquired the suit land Sy. It is further submitted that, the defendants 2 and 3 have not at all acquired the suit land Sy. No. 120 for the purpose of forest and even there is no record with the office of the defendants 2 and 3, to show that, compensation was paid to its owners, in respect of the suit lands at any point of time. And there is no records, with the office of the defendants 2 and 3, to show that, the suit lands are the forest lands. On the other hand, the plaintiffs have filed the khasra pahani of Sy. No. 120 for the year 1954-55 to show that the suit land is a patta land and further the plaintiffs have filed the copy of the ROR of both the suit lands from 2001 to 2002 to till today and also filed the other relevant documents to show that the suit lands are patta lands, and the defendants have no right interest and concerned. But the defendants by taking the undue advantage of illegal ROR entries in column No. 12/2, of the ROR of the suit lands, are illegally interfering and obstructing in to the peaceful possession and enjoyment of the plaintiffs over the suit lands, for which the defendants are not entitle to do so. As such the plaintiffs most humbly pray to pass a decree for injunction against the defendants restraining them from interfering and obstructing into the peaceful possession and enjoyment of the plaintiffs, over the suit lands. 9. That, the office of the defendants No. 2 and 3 after passing of the order, on 15.05.2015 have started illegally interfering and obstructing in to the peaceful possession and enjoyment of the plaintiffs over the suit lands. The plaintiffs by seeing the illegal interference of the defendants over the suit lands, have approached to the office of the defendants on 25.05.2015, and submitted all the records, and requested to all the defendants finally on 25.05.2015, to admit the exclusive ownership and possession of the plaintiffs over the suit lands, and also requested not to interfere and obstruct in to the peaceful possession and enjoyment of the plaintiffs over the suit lands, for which all the defendants have flatly denied to do so. These are the facts which constitute the cause of action and the plaintiffs are entitled to sue and the defendants are liable to answer the claim of the plaintiffs." 11. Plain reading of the averments made in the plaint in the aforesaid paragraphs make it clear that the plaintiffs have approached the trial Court seeking declaration of ownership and perpetual injunction, primarily on the ground that defendant Nos. 2 and 3 after passing the order on 25.05.2015, referred to above have started illegally interfering and obstructing into the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and have sought for reliefs against the said interference by obtaining perpetual injunction. 12. Section 114-A of the Act provides as under: "(1). Section 114-A. Suits or prosecution in respect of acts done under colour of duty not to be entertained without sanction of the State Government.-(1) In any case of alleged offence or of wrong alleged to have been committed by any Forest Officer, by any act done under colour or in excess of any such duty or authority under this Act, or wherein it shall appear to the court that offence if committed was of the character aforesaid, the prosecution or suit shall not be entertained except with the previous sanction of the State Government. (2) In the case of an intended suit on account of such wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrongdoer one month's notice atleast of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed. (3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service, and shall state whether any, and if so, what tender of amends has been made by the defendant. A copy of the said notice shall be annexed to the plaint endorsed with a declaration by the plaintiffs of the time and manner of service thereof." 13. A copy of the said notice shall be annexed to the plaint endorsed with a declaration by the plaintiffs of the time and manner of service thereof." 13. Plain reading of the said section makes it clear that in the case of an intended suit on account of an alleged offence or of wrong alleged to have been committed by any Forest Officer, by any act done under the colour or in exercise of any such duty or authority under this Act", as provided under Sub-Section (1) of Section 114-A of the Act, on such suit can be filed only after issuing one month's notice as mandated under Sub-Section (2) of Section 114-A of the Act. 14. The definition of 2 (6) of the Act defines the meaning and term of the Forest Officer, the same is extracted hereunder: "2(6). Forest Officer means any person appointed by or under the orders of the State Government to be the Principal, Chief Conservator, Additional Principal Chief Conservator, Chief Conservator, Additional Chief Conservator, Deputy Conservator, Assistant Conservator, Forest Ranger, Forester, Forest Guard or Forest Watcher, or to discharge any function of a Forest Officer under this Act or any rule or order made thereunder to be done by a Forest Officer." 15. It is the case of the plaintiffs that they are the absolute owners in possession of the suit schedule property and that the defendant Nos. 2 and 3 claiming the said land to be the forest land, are interfering with that possession. Needless to mention that defendant Nos. 2 and 3 have been arrayed as defendants in the suit in their official capacity as Forest Officers, alleging that they are interfering with the possession of the plaintiffs claiming the land to be the forest land. This purported wrong on the part of the defendant Nos. 2 and 3, according to the plaintiffs would not fall within the counters of Section 114-A of the Act. This submission cannot be countenanced for the reason that defendant Nos. 2 and 3 whom the plaintiffs have arrayed in their official capacity, have admittedly come to the suit schedule property claiming the same to be the forest land. This act of the defendant Nos. 2 and 3, who are the Forest Officers, can only be pursuant to the exercise of the authority vested in them under the Act. 2 and 3 whom the plaintiffs have arrayed in their official capacity, have admittedly come to the suit schedule property claiming the same to be the forest land. This act of the defendant Nos. 2 and 3, who are the Forest Officers, can only be pursuant to the exercise of the authority vested in them under the Act. It is a different matter if the authority was rightly or wrongly exercised. The fact of the matter is that defendant Nos. 2 and 3 had allegedly interfered with the possession of the plaintiffs in their capacity as the Forest Officers. This alleged wrong is sought to be remedied by the plaintiffs. Term 'wrong' is not defined under the Act. As per the meaning and definition found in the BLACKS, LAW DICTIONARY: Ninth Edition meaning of; Wrong vb. "Breach of one's legal duty violation of another's legal right: Wrong vb. "A wrong may be described, in the largest sense, as anything done or omitted contrary to legal duty, considered insofar as it gives rise to liability. "Fredrick Pollock" "A wrong is simply a wrong Act; an act contrary to the rule of right and justice. A synonym of it is injury, in its true and primary sense of injuria (that which is contrary to jus)......"John Selmond, Jurisprudence 227 (Glanville L Williams ed, 10th edition 1947". Therefore, requirement of issuance of one month's notice in terms of Section 114-A of the Act, before filing the intended suit complaining of their wrong mentioned therein is mandatory. 16. The reliance placed by the learned counsel for the appellants/plaintiffs on the judgment of the coordinate Bench of this Court passed in W.P. No. 46713/2011 dated 08.03.2012 is with respect to trying of additional issue as a preliminary issue and it was not with respect to issuance or non issuance of the statutory notice. Therefore, the said judgment is of no avail. Similarly, the judgment of this Court passed in Criminal Petition No. 8196/2013 dated 17.01.2014, is one dealing with the provisions of Section 197 of Cr.P.C. read with Section 114-A of the Act for the purpose of consideration of the protection of the public servants. The facts and circumstances of the said matter are not applicable to the present case. Therefore, the said judgment is of no avail. The facts and circumstances of the said matter are not applicable to the present case. Therefore, the said judgment is of no avail. The learned counsel for the appellants also relied upon the judgment of the Apex Court in the case of Sudhir G. (Supra). In the said case, the Apex Court was dealing with prior sanction as contemplated under Section 92 of CPC and Section 40-A of the Mysore Trust Act. The facts and circumstances of the said case are totally different from the one, which is at hand. The learned counsel also relied upon the judgment of the Division Bench of this Court passed in RFA No. 988/2013 dated 06.01.2021. In the said case, the suit was filed with respect to the order passed under Section 64 of the Act and no issue with regard to requirement of notice under Section 114-A of the Act was the subject matter. He also relied upon the judgment of the coordinate of this Court passed in RFA No. 152/2002 connected with RFA No. 188/2002 to bring home the point that these matters involved the right, title and interest in respect of the immovable property and the same has been disposed off without referring to Section 114-A of the Act. Be that as it may, none of these judgments referred to above relate to an application under Order VII Rule 11(d) of CPC filed for non compliance of the provisions of Section 114-A of the Act. 17. It is a settled principle of law that if a statute requires a thing to be done in a particular manner it should be done in that manner or not all, Nazir Ahmed V. Emperor AIR 1936 SC 253, which is approved and followed in catena of judgments of the Apex Court. In the instant case, as extracted hereinabove, Section 114-A of the Act mandates dismissal of the suit for non issuance of one month's notice to the alleged wrong doer. The case of the plaintiffs as put before the trial Court is with regard to complaining the wrong on the part of defendant Nos. 2 and 3, who are the Forest Officers, of their purported illegal interference in the possession of the plaintiffs. The case of the plaintiffs as put before the trial Court is with regard to complaining the wrong on the part of defendant Nos. 2 and 3, who are the Forest Officers, of their purported illegal interference in the possession of the plaintiffs. Thus, the said wrong sought to be prevented by the plaintiffs by way of permanent injunction, has to be considered only if one month's notice as contemplated under Section 114-A of the Act has been given. In the absence of the same, the statute mandate dismissal of the suit. No exemption for non compliance of the said provision is contemplated. Therefore, the Trial Court is justified in dismissing the suit of the plaintiffs for non compliance of the said provision. 18. It is necessary to note that the trial Court has referred to the provisions of Sub-Section (1) of Section 114-A of the Act, which mandates obtaining prior sanction of the State Government. That observation may not be appropriate in view of Sub-Section (2) of Section 114-A of the Act, specifically dealing with the issue regarding filing of the suit. The present lis is only with regard to the right, title and interest of the plaintiffs and the alleged interference by the defendant Nos. 2 and 3 into peaceful possession of the plaintiff over the suit property. Therefore, that would fall under Sub-Section (2) of Section 114-A of the Act requiring issuance of notice alone and would not fall under Sub-Section (1) of Section 114-A of the Act warranting prior sanction from the State Government. 19. Needless to mention that the dismissal of the suit for non compliance of the statutory provision referred to above, would not debar the plaintiffs from filing a fresh suit on compliance of the aforesaid provisions of law, even as held by the Division Bench of this Court in its judgment rendered in Syed Abdul Jabbar as Board of Wakf, ILR 1991 KAR 1628, while dealing with similar requirement of want of issuance of notice under Section 56 of Wakf Act, 1954. 20. With the above observations, the point raised is answered accordingly and following order is passed: ORDER i. The RFA. No. 200015/2020 filed by the plaintiffs is dismissed. ii. The order dated 07.01.2020 passed by the trial Court in O.S. No. 76/2015 is confirmed. iii. 20. With the above observations, the point raised is answered accordingly and following order is passed: ORDER i. The RFA. No. 200015/2020 filed by the plaintiffs is dismissed. ii. The order dated 07.01.2020 passed by the trial Court in O.S. No. 76/2015 is confirmed. iii. In view of disposal of main appeal, I.A. 2/2020 does not survive for consideration and same is dismissed.