Court No. - 53
Case :- SECOND APPEAL No. - 1533 of 1999 Appellant :- Hardeva Respondent :- State Of U.P. And Ors.
Counsel for Appellant :- D.K.Deewan,K.M.Garg,Pankaj Lal,V.K.Goel Counsel for Respondent :- S.C.
Hon'ble Vivek Agarwal,J.
Heard Sri Pankaj Lal, learned counsel for the appellant and Sri Jitendra Pal Singh, learned standing counsel for the State.
This second appeal has been filed by the appellant being aggrieved by the judgment and decree dated 6.8.1999 whereby the court of 7th Addl. District Judge, Meerut in Civil Appeal No. 29 of 1999 has modified the compensation awarded by the Court of 3rd Addl. Civil Judge (Senior Division), Meerut vide judgment and decree dated 8.10.1998 on an appeal filed by the State of Uttar Pradesh.
Some facts which are not disputed in the present case are that a contract was executed between the State of UP and the present appellant for bidding of forest produces like Beed, Pula, Kans, Jhav, Moonj etc for which lots were put to auction in the year 1985.
It is admitted position that appellant had successfully bidded for lot no. 115/1985-86, lot no. 116/1985-86 and lot no. 119/1985-
86 for which auction had taken place on 10.6.1985 and the appellant had paid a sum of Rs. 58,000/- as auction money.
It is the case of the appellant that due to floods in the relevant year of 1985-86, State of UP had issued a general order directing the authorities of the Forest Department to permit cattles to graze within the forest area. It is further submitted that due to such order of the State, the appellant had to face loss and, therefore, he had filed a suit seeking compensation for such loss sustained by him due to order of the State Government to allow cattles to graze on the forest land including the lots which were given to the appellant.
The Trial Court by its order dated 8.10.1998 decreed the recovery of Rs. 53,060/- with interest pendentilite and future interest at the rate of 10.5% from the respondents.
Being aggrieved by the said judgment and decree of the Trial Court, the State has filed a first appeal in which this amount has been reduced from Rs. 53,060/- to Rs. 23,200/-.
Counsel for the appellant submits that Trial Court has rightly assessed the quantum of loss and without there being any reason the first appellate court has interfered in the quantum of loss assessed by the Trial Court.
It has also come on record that even the State has filed second appeal being aggrieved by the judgment and decree dated 6.8.1999 passed by the 7th Addl. District Judge, Meerut in Civil Appeal No. 29 of 1999, numbered as Second Appeal No. 1059 of 2000, which is dismissed vide order dated 14.5.2003. Thereafter the State had filed Special Leave Petition (SLP) before the Supreme Court which was registered as SLP (Civil) No. 2132 of 2004 and the same was also dismissed vide order dated 15.3.2004.
Counsel for the appellant submits that loss incurred by the appellant is an admitted fact as can be seen from the written order filed by the State before the Trial Court, but only dispute is as to quantum of compensation which the appellant is entitled.
The first appellate court has rejected the claim of the appellant-plaintiff to the tune of Rs. 54,360/.00 with interest being awarded by the trial court towards loss of profit. Similarly claim of amount towards tax paid by the appellant has also been dismissed. The first appellate court also rejected the claim to the tune of Rs. 5000/- admitted by the trial court on account of amount spent by the plaintiff in pursuing his case and running about different offices to follow up his case for compensation.
After disallowing the compensation awarded by the trial court under these three heads, the first appellate court has allowed the compensation to the tune of Rs. 23,200/- on the ground that in the inquiry conducted by the official of the Forest Department they had assessed the loss of Rs. 23, 200/- and letter was sent to the District Magistrate, Meerut in this regard.
It is mentioned in the first appellate court's order that the appellant has failed to prove any other notional or actual loss.
Counsel for the appellant vehemently submits that he is entitled to complete amount of auction money which he had deposited as bid amount i.e. Rs. 58,000/- as he could not work and collect any of the forest produce due to the act of the State Government. However, when confronted, as to the evidence produced by the plaintiff-appellant, on record to support calculation for loss of profit, towards expenses incurred and refund of amount of tax, counsel for the appellant could not point out any such evidence from record. Even no clause from the agreement entitling the appellant to claim any compensation under the aforesaid three heads, could be commended. The appellant has, in fact, failed to discharge its burden by producing relevant documents to show the computation for loss of profit as has been accepted by the trial court. No bills / vouchers were produced by the plaintiff to substantiate expenses to the tune of Rs. 5000/- as has been awarded by the trial court.
The appellant has also not been able to prove that on account being smitten by the act of God or force majeure is entitled to refund of the duty / tax deposited by him at the time of acceptance of the bid for auction whereas there is no clause in regard to compensation to be paid under the circumstances of force majeure. This court is of the opinion, the having failed to discharge his burden to prove factum entitling him to compensation despite there being natural calamity. Appellant is not entitled to any further relief. Therefore, the judgment and decree drawn by the1st appellate court on the basis of just and correct appreciation of law and facts available on record does not call for any interference, and therefore, the appeal fails and it is dismissed.
Order Date :- 27.11.2019 S.K.S.