Myamoona vs State of J&K and Ors.

Vehicle (tipper) bearing Registration No. JK04/2571, has been seized while carrying illicit timber. Confiscation proceedings in terms of Section

26 of the Forest Act were initiated followed by order of confiscation by the Authorized Officer (DFO). The order of confiscation has been

successfully challenged before the Court of Sessions Judge, Budgam by one Mohammad Altaf Magray, whereunder proceedings had been

quashed and vehicle ordered to be released in favour of the owner. The Owner collected the vehicle but in the meantime, order of learned

Sessions Judge was challenged before this Court under Section 561A.Cr. PC. This Court has set aside the order of the Court of Sessions Judge

on 22.07.2002. The Forest Department had to take action but seems to have slept over the matter till 20.09.2004.

Respondent no. 6 is the Financer of the vehicle. For default of payments, Financer seems to have taken over the custody of the vehicle from its

owner. Same has been put to auction. In the auction, petitioner also participated and found highest bidder. After payment of loan amount, custody

of the vehicle was delivered to the petitioner in the year 2003. Subsequently, in the year 2004, Police concerned acting at the request of Forest

Department, has taken over the custody of the vehicle from the possession of the petitioner.

Petitioner faced with the situation filed suit for declaration for being declared owner of the vehicle. Respondent no. 6, Financer, in the written

statement has admitted that, for default of the payment, vehicle was seized and put to auction, the petitioner purchased the same and custody was

handed over to her. The other respondents, apart from filing written statement, have filed an application under Order 7 Rule 11 CPC. The Court of

SubJudge, i.e. 2nd Civil Subordinate Judge, Srinagar accepted the application and rejected the plaint opining therein that the suit is barred as per

Forest Act. Secondly, there is no cause of action available. Aggrieved thereof, the instant revision petition has been filed.

Considered the revival submissions, the moot question for consideration is as to whether rejection of plaint is inconsonance with law. In this

connection, it is quite apt to reproduce Order 7 Rule 11 CPC.

The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to Correct the valuation within a time to be fixed by the

Court, fails to do so;

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the

Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law;

Learned Court below has held that the test as laid down under order 7 rule 11 (d) CPC is not satisfied. The opinion on the face of it is not

tenable for the reasons to follow. As per clause (d), plaint is to be rejected when it is barred by law. Section 26C and Section 52H of the Forest

Act provide for exclusion of the jurisdiction of civil court. As per Section 26C when initiation of proceedings for confiscation are reported, then

regarding the property, which is subject matter of the confiscation, no Court, Tribunal or Authority, other than authorized officer and Court of

Sessions referred to in Section 26 and 26 (B) shall have jurisdiction to make order with regard to possession, delivery, disposal or distribution of

the property.

As per Section 52H, no civil court shall have jurisdiction to entertain any suit or other proceedings in respect of any matter which the Authority

has taken cognizance under Section 52B of the Forest Act. Section 52B provide for restoration of advantage or benefit or payment of

compensation, hence bars jurisdiction of the civil court only in two situations, first under Section 26C and second under Section 52H.

The petitioner by medium of the suit has not challenged the confiscation proceedings but had claimed to be the owner as having been delivered

the custody of the vehicle by the Financer. The Forest authorities have slept over the matter from 22.07.2002 to 20.09.2004 and it is in the

intervening period, respondent no. 6 has taken over the vehicle after the default of the payment, thereafter has put it to auction and purchased by

the petitioner. Petitioner has not even claimed any advantage as envisaged under Section 52B. Whether petitioner in given circumstances can be

declared the owner when the property has already vested in the Government in terms of Section 33 of the Forest Act free from all encumbrances?

Above stated aspects have not been appreciated by the Trial court.

Secondly, cause of action means bundle of facts. In the instant case, petitioner has clearly contended that she has been deprived of the

possession of the vehicle in the year 2004; when she was not party to the confiscation proceedings nor had any knowledge about confiscation

proceedings. Learned Trial court has adopted short cut method by not appreciating the real controversy.

The order impugned if allowed to stand shall cause miscarriage of justice.

It is worth to be noted that Forest authorities concerned after the order of this Court dated 22.07.2002 have shown indolence till 20.09.2004

by not taking measures for taking over the custody of the vehicle instead they have facilitated the Financer's (respondent no. 6) method of taking

over the custody of the vehicle and its auction thereof which is the matter to be looked into by the superior authorities of the Forest Department on

administrative level.

Revision petition succeeds, order set aside. Trial Court shall, in view of the above observations, hear the parties afresh in respect of the

application for rejection of plaint and thereafter pass appropriate orders. Date for appearance before the Trial Court is fixed as July, 2008. Copy

of the order alongwith subordinate record be sent back forthwith.