Gujarat High Court Case Information System
Print
SA/211/2008 23/ 28 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 211 of 2008
with
CIVIL
APPLICATION No.10742 of 2008
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
RAMESHCHANDRA
KANTILAL PATEL - Appellant(s)
Versus
CITY
SURVEY SUPERINTENDENT & 1 - Respondent(s)
=========================================================
Appearance :
MR
GT DAYANI for Appellant(s)
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 16/09/2008
ORAL
JUDGMENT
The appellant has filed the present
Appeal being aggrieved and dissatisfied by the judgment and decree
dated 8.8.2008 rendered by the learned Presiding Officer, 2nd
Fast Track Court, Nadiad, in Regular Civil Appeal No.23 of 2006,
whereby, the judgment and decree dated 21.1.2006 passed by the
learned 5th Additional Senior Civil Judge, Nadiad, in
Regular Civil Suit No.37 of 2002, has been confirmed.
The brief facts leading to the filing
of the Appeal are as follows:
The appellant was the plaintiff before
the trial Court and for the sake of convenience, the parties will be
referred to as they appear in the present Appeal. The appellant is a
resident of Kapadwanj and is carrying on the business activities at
that place. The respondent No.1 is the City Survey Superintendent
and the respondent No.2 is the Kapadwanj Nagarpalika. The case of
the appellant before the trial Court was that the respondent No.2
had passed a Resolution dated 26.9.1953 whereby a piece of land had
been allotted to Nyalchand Rochiram Sindhi in the year 1953-54 as a
refugee. The said Resolution had been sent to the local District
Authority for permission and accordingly, the respondent No.2 had
decided to recover 4 (Four) Annas per sq.ft. from the allottee.
Thereafter, the respondent No.2 had started recovering rent and
special tax from Nyalchand Rochiram Sindhi. It was the case of the
appellant that the respondent No.2 had allotted plots to refugees,
in City Survey No.6232 or alternatively 6223 Paiki, outside the
compound of Mukhya Kumar Shala at Sarkhaliya Darwaja, and the
appellant is in possession of a plot which was occupied by Nyalchand
Rochiram Sindhi, at the relevant point of time. Said Nyalchand
Rochiram Sindhi was holding the plot upto 1985, and was carrying on
his business of Hotel thereupon.
According to the appellant, the said piece of land has been
allotted by the respondent No.2 to the plaintiff after accepting
transfer fee and the plaintiff is doing business of printing press
at that place in the name of Ambika Printing Press and Stationary
and is in possession of the suit property and is using the land as
Nyalchand Rochiram Sindhi was using it. The case of the appellant
was that he is paying rent and taxes to the respondent No.2 and the
respondent No.2 is also issuing receipts. The term of licence has
been extended by the respondent No.2 from the initial period of
seven years, for a period of ten years and thereafter has been
renewed from time to time. The case of the appellant before the
trial Court was that the respondent No.1 has no concern with the
suit property, as the said property is situated in the city of
Kapadwanj, about 25 to 30 feet away from the main public road. The
respondent No.1 issued a notice for eviction dated 15.1.2002, under
the provisions of Section 61 of the Bombay Land Revenue Code, 1879
(hereinafter referred to as the Code ) which, according to the
appellant, is vague and not in accordance with law and, therefore,
the appellant filed the above-mentioned suit, praying for the relief
of restraining the respondent No.1 from interfering, in any manner,
with the use and occupation of the suit property by the appellant.
The suit was contested by the
respondent No.1 on behalf of the State Government, by filing a
written statement at Ex.24 wherein the averments made in the plaint
were denied. It was contended that the suit property is not situated
on the land acquired by the respondent No.2 (Nagarpalika) but is
situated on the land of respondent No.1 (State Government). It was
contended that the appellant has not produced any letter of
permission from the respondent No.1 in favour of the respondent No.2
to allow the appellant to occupy the said land. It was contended in
the written statement that the respondent No.1 has not allotted the
suit property to the appellant by way of licence or lease and the
respondent No.2 has no right to allot the suit property to the
appellant by lease or licence, without the prior permission of the
State Government. It was also stated that the notice dated 15.1.2002
issued by the respondent No.1 is in conformity with the provisions
of the statute and there is no violation of law. The respondent No.1
alleged that the appellant had encroached upon the land belonging to
the State Government and, therefore, the suit may be dismissed.
A written statement was also filed by
the respondent No.2, at Ex.20, wherein it was contended that no
letter of sanction of the local authority is found on the record,
and as per the Resolution dated 26.9.1953, the suit land is part of
the main road and has been allotted to the appellant. It was also
stated that no survey number of the suit property has been entered
in the City Survey records, but due to a mistake on the part of an
employee of the Kapadwanj Nagarpalika, a survey number of the
property has been wrongly mentioned in the receipt. The respondent
No.2 has categorically denied that any permission for construction
on the suit land had been granted to the appellant. It was further
stated that, at the time of allotting the land to the appellant, the
respondent No.2 had not asked the appellant to vacate the suit land
as it was not obstructing the main road. It was further stated that
the respondent No.2 has not given any notice to the appellant and
the suit may be dismissed.
On the above pleadings, the trial
Court framed the following issues:
(i) Whether the plaintiff proves that
he is the lawful tenant of the plot in question, being Plot No.4 of
City Survey No.6232?
(ii) Whether the plaintiff proves that
the notice dated 15.1.2002 issued by the respondent No.1 is illegal
and without authority of law?
(iii) Whether the respondent proves
that the suit of the plaintiff is bad due to non-issuance of
statutory notice?
(iv) Whether the plaintiff is entitled
for the relief, as prayed for?
(v) What order and decree?
The trial Court recorded negative
findings on Issues Nos.1 to 4. The findings of the trial Court are
that the appellant is in possession of the suit land but, on the
basis of the evidence on record, it is proved that the appellant is
not a lawful tenant of the respondent No.2. The trial Court also
found that the notice dated 15.1.2002 issued by the respondent No.1
under the provisions of Section 61 of the Code is in accordance with
law as, undoubtedly, the suit land belongs to the State Government.
The trial Court also found that the respondent No.2 had no right to
allot the suit land to the appellant, without the prior sanction of
the State Government. Another finding arrived at by the trial Court
is that the suit property is not situated on City Survey No.6232, as
claimed by the appellant and as the land belongs to the State
Government, notice dated 15.1.2002 by the respondent No.1 under the
provisions of Section 61 of the Code to the appellant, suffers from
no legal infirmity. The trial Court has also observed that the
appellant has not prayed for a declaration to the effect that the
notice is illegal and, without jurisdiction, therefore, it is not
open to him to ask for the consequential relief for grant of
permanent injunction, restraining the respondents from dispossessing
him from the suit property. The trial Court has arrived at a
specific finding that the appellant has failed to prove that he is a
lawful tenant of the respondent No.2 and the respondent No.2 had no
right to allot the land belonging to the State Government to the
appellant without prior sanction, and, therefore, the appellant is
nothing more than a trespasser. Ultimately, the suit was dismissed.
In appeal, the first appellate Court,
after considering the arguments advanced by the appellant and the
respondents, and after discussing the issues framed by the trial
Court and its findings thereupon, confirmed the findings arrived at
by the trial Court to the effect that the appellant is not the
tenant of the respondent No.2 and the respondent No.2 had not taken
the prior permission of the State Government before allotting the
suit property to the appellant, as the suit land belongs to the
State Government. The finding of the trial Court that the appellant
is not a lawful tenant upon the suit land has been confirmed, and
the judgment and decree of the trial Court upheld, giving rise to
the present Appeal.
Mr.G.T.Dayani, learned counsel for the
appellant has submitted as under:
(a) The notice dated 15.1.2002 issued
by the respondent No.1 is illegal and without jurisdiction,
inasmuch as the same has been issued by the City Survey
Superintendent whereas, as per the provisions of Section 61 of the
Code, it should have been issued by the Collector. It is submitted
that there is nothing on the record to show that the Collector has
delegated his powers to the City Survey Superintendent and as
provided in the Gujarat Land Revenue Rules, 1972, this power may be
delegated to the Mamlatdar and Mahalkari, and therefore, the notice
dated 15.1.2002, is illegal and without jurisdiction. It is
submitted that the findings of both the trial Courts below are
erroneous.
(b) The notice issued under the
provisions of Section 61 of the Code could not have been issued
without holding an inquiry under the provisions of Section 37(2) of
the Code, and this aspect has also been overlooked by both the
courts below. Reliance has been placed by the learned counsel for
the appellant upon Rajkot Municipal Corporation v. State of
Gujarat & Ors. – 1997(2) GLR 1281. It
is submitted that as the provisions of Section 80(1) of the Bombay
Provincial Municipal Corporations Act, 1949, are analogous to
Section 37(2) of the Code, therefore, an inquiry in the matter was
necessary and in the absence of an inquiry under Section 37(2) of
the Code, the notice under Section 61 could not have been issued.
Reliance has also been placed on Vaghela Dahyabhai
Chaturbhai v. State of Gujarat And Another 1970(11) GLR 386
in support of the above contention.
(c) The appellant is the tenant of the
respondent No.2 (Nagarpalika), which has issued rent receipts to him
and has transferred the right in the suit property to the appellant
by accepting a donation. It is further submitted that the respondent
No.2 has never issued any notice to the appellant and, therefore,
the notice issued by the respondent No.1, is without the authority
of law.
(d) Both the Courts below have not
considered material evidence on record, namely, a copy of the
deposition of one Shri Dipak Ramchandra Thakre, in another Civil
Suit, which was produced before the trial Court, in which it is
stated that the respondent No.1 had no power to issue such a notice.
(e) The first appellate Court has not
examined the evidence critically and has not adopted any process of
reasoning and therefore the judgment rendered by it cannot stand. In
support of this contention, reliance has been placed on Balraj
Taneja And Another v. Sunil Madan And Another (1999)8 SCC 396
and State of Rajasthan v. Harphool Singh (Dead) Through His LRs
(2000)5 SCC 652.
On the strength of the above
submissions, it is prayed by the learned counsel for the appellant
that the appeal may be admitted, and allowed, and the judgments and
decrees of both the Courts below may be quashed and set aside.
I have heard the learned counsel for
the appellant, perused the documents on record and considered the
submissions made at the Bar.
The first submission canvassed by the
learned counsel for the appellant is that the notice dated 15.1.2002
issued by the City Survey Superintendent to the appellant is illegal
and without jurisdiction, on the ground that it has not been issued
by the Collector. In order to examine this submission, it would be
useful to refer to the provisions of Section 61 of the Code, which
read thus:
61. Penalties for
unauthorized occupation of land :-
Any person who shall unauthorizedly
enter upon occupation of any land set apart for any special purpose,
or any unoccupied land which has not been alienated, and any person
who uses or occupies any such land to the use or occupation of which
by reason of any of the provisions of this Act he is not entitled or
has ceased to be entitled shall,
if the land which he unauthorizedly
occupies forms part of an assessed survey number, pay the assessment
of the entire number for the whole period of his unauthorized
occupation, and
if the land so occupied by him has
not been assessed, such amount of assessment as would be leviable
for the said period in the same village on the same extent of
similar land used for the same purpose; and shall also be liable, at
the discretion of the Collector, to a fine not exceeding five
rupees, or a sum equal to ten times the amount of assessment payable
by him for one year, if such sum be in excess of five rupees, if he
has taken up the land for the purposes of cultivation, and not
exceeding such limit as may be fixed in rules made in this behalf
under section 214, if he has used it for any non-agricultural
purpose.
The Collector’s decision as to the
amount of assessment payable for the land unauthorizedly occupied
shall be conclusive, and in determining its amount occupation for a
portion of a year shall be counted as for a whole year.
The person unauthorizedly occupying
any such land may be summarily evicted by the collector, and any
crop raised in the land shall be liable to forfeiture, and any
building, or other construction, erected thereon shall also, if not
removed by him after such written notice as the Collector may
deem reasonable, be
liable to forfeiture, or to summary removal.
Forfeitures under this section
shall be adjudged by the Collector, and any property so forfeited
shall be disposed of as the Collector may direct and the cost of the
removal of any encroachment under this section shall be recoverable
as an arrear of land revenue.
As is clear from reading of the above
provision of law, Section 61 of the Code authorises the Collector to
levy a fine to the extent mentioned in the said Section or summarily
cause the unauthorised occupant of the land to be evicted, after
written notice as deemed reasonable by the Collector is issued to
him. The unauthorised occupant may thereafter be liable to be
removed summarily and the land forfeited to the Government. The last
paragraph of the said Section contains the provisions for issuance
of notice. According to the said provision, a person who is
unauthorisedly occupying any such land may be summarily evicted by
the Collector and any crop raised in the land shall be liable to be
forfeited. The section provides for a written notice, as the
Collector may deem reasonable, to be issued, to the unauthorised
occupant, before summary removal or forfeiture. The said Section
nowhere mandates that the notice issued under Section 61 of the Code
has to be issued in the name of the Collector only. It mentions
written written notice as the Collector may deem reasonable .
Chapter II of the Gujarat Land Revenue Rules, 1972, delineates the
powers and duties of Officers as far as administrative orders are
concerned. Under the said Chapter, certain administrative orders are
mentioned. As far as Section 61 of the Code is concerned, it is
mentioned that by Government Resolution, Revenue Department,
No.8833/43, dated 3rd December, 1951, powers may be
delegated by the Collector to the Mamlatdar and Mahalkaris by name
as well as by virtue of office. This Government Resolution is dated
3rd December, 1951, and there is nothing on record to
show that no further administrative orders have been passed in this
regard. Therefore, the submission made by the learned counsel for
the appellant does not carry much weight, as in the present case,
there is nothing on record to prove that the notice could not have
been issued by the respondent No.1. It is a settled position of law
that where the source of power exists, then the exercise of that
power cannot be invalidated on the ground that it has been exercised
by another authority, who is acting on behalf of the competent
authority. There is no material on record to show that the power has
been exercised wrongly by the respondent No.1. The Collector is
empowered to cause notice under Section 61 of the Code to be issued
as he deems reasonable and a notice contemplated by the provisions
of Section 61 of the Code has been issued by the respondent No.1.
The findings of both the Courts below on this point are clear and
unambiguous. The trial Court has come to the conclusion that there
is no illegality and infirmity in the notice dated 15.1.2002 issued
by the respondent No.1, and the findings of the trial Court have
been confirmed by the first appellate Court. At the stage of Second
Appeal, findings of fact based upon appreciation of evidence on
record cannot be gone into, especially as there is no perversity or
illegality in the conclusions arrived at by both the Courts below.
The trial Court has observed, and in
my view rightly so, that the appellant has not prayed for the relief
of declaration to the effect that the notice dated 15.1.2002 is
illegal and, in the absence of such a prayer, the appellant cannot
ask for the consequential relief of permanent injunction to restrain
the respondents from dispossessing him of the suit property. There
is no dispute regarding the fact that the suit land belongs to the
State Government and as per the provisions of Section 61 of the
Code, the State Government can issue notice to any person who is in
unauthorised occupation of land owned by the Government. The trial
Court has also observed that it is specifically mentioned in the
notice dated 15.1.2002 that the appellant can make a representation
against the notice within ten days of receipt thereof, which appears
not to have been done and the civil suit has been filed
straightaway.
The trial Court has, on the basis of
the material on record, arrived at the conclusive finding that the
appellant has not been able to prove that the said notice is in any
way illegal or without jurisdiction. These findings have been
confirmed by the first appellate Court. I find no infirmity therein,
so as to warrant interference, therefore, the submission advanced by
the learned counsel for the appellant, cannot be accepted.
A submission has been made by
Mr.Dayani that the notice under Section 61 of the Code could not
have been issued without an inquiry being conducted under the
provisions of Section 37(2) of the Code. This submission appears to
have been raised for the first time before this Court, as a reading
of the judgments of both the Courts below does not reveal that such
an argument was advanced before the Courts below. Section 37 of the
Code provides that all public roads and lands, which are not the
property of individuals, are declared to be with all rights, the
property of the Government. Section 37(2) of the Code provides that
where any property or any right in or over any property is claimed
by or on behalf of the Government or by any person as against the
Government, it shall be lawful for the Collector or a survey
officer, after formal inquiry of which due notice has been given, to
pass an order deciding the claim. This provision of law has no
relevance to issuance of notice under Section 61 of the Code. Had
such an inquiry been contemplated, it would have been so stipulated
in Section 61 by the legislature. I am unable to accept the
submission made by the learned counsel for the appellant that the
provisions of Section 37(2) of the Code should have been invoked
before issuance of the notice under Section 61 of the Code as, in my
view, the provisions of Section 37 of the Code have no relevance to
the issuance of notice under Section 61 of the Code. The judgment
cited by the learned counsel for the appellant in Rajkot
Municipal Corporation v. State of Gujarat & Ors. (supra)
is, therefore, of no help to the case of the appellant. In that
case, the claim against Government land was made by the Rajkot
Municipal Corporation and the Court observed that in reference to
the provisions of Section 80 of the Bombay Provincial Municipal
Corporations Act, 1949, any claim with respect to any immovable
property by or on behalf of the Corporation will have to be
adjudicated upon by the Collector after a formal inquiry. The Court
came to the conclusion that Section 80(1) of the Bombay Provincial
Municipal Corporations Act, 1949, is analogous to Section 37(2) of
the Code and, therefore, the claim of the Corporation with respect
to the land, said to be belonging to the Government, will have to be
adjudicated upon in accordance with Section 80(1) of the said Act.
The above-referred to judgment has no relevance to the facts of the
present case. Similarly, the judgment in Vaghela
Dahyabhai Chaturbhai v. State of Gujarat And Another (supra)
does not take the case of the appellant any further, as it deals
with the provisions of Section 37(1) of the Code which, as already
discussed hereinabove, are not relevant in the facts and
circumstances of the case.
As regards the third contention of the
learned counsel for the appellant to the effect that the appellant
is the tenant of the respondent No.2 Nagarpalika; the trial
Court has arrived at a specific finding on the basis of evidence on
record that the suit land belongs to the respondent No.1 (State
Government) and as per the provisions of Section 65(2) of the
Gujarat Municipalities Act, 1963, the Nagarpalika is required to
obtain the prior sanction of the State Government in case of lease
of immovable property for a term exceeding ten years. The
Nagarpalika does not deny that the suit land is part of the public
road and, as such, permission has to be obtained from the respondent
No.1. The trial Court has, therefore, held that the appellant has
not produced any evidence that permission has been granted by the
respondent No.1 to the respondent No.2, for leasing the suit land to
him. It is an admitted position that the respondent No.2 –
Nagarpalika has not obtained permission from the State Government as
per the requirements of Section 65(2) of the Gujarat Municipalities
Act, 1963. The trial Court has found that the appellant is not a
lawful tenant of the respondent No.2 as the respondent No.2 had no
right to give the suit land on lease without following the statutory
requirements of Section 65(2) of the Code. Moreover, it has been
observed by the trial Court that no permission of the respondent
No.1 to give the suit property on rent or any contract between the
appellant and the respondent No.2 has been produced on record to
establish the relationship of landlord and tenant between the
parties. On the basis of the evidence on record and relying upon the
provisions of Section 65(2) of the Gujarat Municipalities Act, the
trial Court has concluded that as there is no prior permission from
the respondent No.1 to lease the suit land to the appellant for a
period exceeding ten years, and the appellant is not a lawful tenant
as the arrangement between the appellant and the respondent No.2
does not have any legal sanction. The 1st appellate Court
has confirmed the findings of the trial Court.
The learned counsel for the appellant
has also contended that both the Courts below have not appreciated
the evidence brought on record in the shape of a copy of the
deposition given by one Shri Dipak Ramchandra Thakre in another
case, to the effect that the respondent No.1 had no power to issue
the notice under Section 61 of the Act. I am afraid, this submission
is stated merely to be rejected at this stage. Once the trial Court
has come to the conclusion that the notice dated 15.1.2002 under the
provisions of Section 61 of the Code does not suffer from any
illegality, which finding has been confirmed by the first appellate
Court, the deposition made by a witness in another case will not
have any relevance, especially as the entire evidence has been
properly appreciated by the courts below. At the stage of Second
Appeal, the Court will not enter into re-appreciation of evidence,
on flimsy grounds.
Lastly, it has been argued by
Mr.Dayani that the judgment of the first appellate Court does not
reveal any process of reasoning and there is no critical examination
of the evidence on record. In Balraj Taneja And Another v. Sunil
Madan And Another (supra) relied upon by him in support of this
contention, the Supreme Court has held that a judgment as defined in
Section 2(9) of the Code of Civil Procedure means the statement
given by the Judge of the grounds for a decree or order which should
be a self-contained document from which it should appear as to what
were the facts and circumstances and what was the controversy which
was tried to be settled by the Court and in what manner. It has
been held that the process of reasoning by which the Court came to
the ultimate conclusion and decreed the suit should be reflected
clearly in the judgment. In State of Rajasthan v. Harphool Singh
(Dead) Through His LRs (supra) relied by the learned counsel for
the appellant, it has been held that under Section 96 of the Civil
Procedure Code, the duty of the first appellate Court is to make a
critical analysis of the matter before it and not mechanically
affirm the findings of the trial Court without due and proper
application of mind. There can be no doubt regarding the principles
of law enunciated in both the above-mentioned judgments. Applying
the said principles of law to the judgment rendered by the first
appellate Court, in my view, it cannot be said that it suffers from
a lack of reasoning or non-application of mind. The first appellate
Court has discussed the rival contentions of the parties in detail
and has referred to the issues framed by the trial Court as well as
the findings arrived at upon those issues and has thereafter
confirmed the findings of the trial Court. In essence, it has agreed
with the reasoning of the trial Court and the conclusions based upon
it. The submission of the learned counsel for the appellant in this
regard is, therefore, not sustainable.
No other point has been urged before
me.
The admitted facts are that the State
Government is the owner of the suit land. The respondent No.2
Nagarpalika is bound to obtain the prior sanction of the State
Government, if it wanted to lease the land for a period exceeding
ten years, as the land is adjoining the public road, as provided by
Section 65(2) of the Gujarat Municipalities Act, 1963, which has,
admittedly, not been done. There are clear findings of fact by both
the Courts below that the suit land does not bear the survey number
attributed to it by the appellant and nor has the appellant been
able to adduce any evidence to the effect that he is the lawful
tenant thereupon. There is also a specific finding that the notice
issued by the respondent No.1 under the provisions of Section 61 of
the Code suffers from no legal infirmity.
The findings of fact arrived at by the
trial Court on the basis of cogent evidence on record have been
confirmed by the first appellate Court. Concurrent findings of fact
of the Courts below are based upon substantial evidence on record.
In a Second Appeal preferred under the
provisions of Section 100 of the Code of Civil Procedure, the Court
may not interfere with the findings of fact based upon cogent
evidence or re-appreciate the evidence, especially when no
perversity, illegality or infirmity is found in the judgments of the
Courts below.
Having gone through the memorandum of
the appeal, in my considered view, the questions framed therein by
the learned counsel for the appellant are either questions of fact
or mixed questions of fact and law, and no question of law, leave
alone any substantial question of law within the meaning of Section
100 of the Code of Civil Procedure, 1908, arises for consideration
in this Appeal.
For the above-stated reasons, the
Appeal must fail, and stands dismissed.
As the Appeal has been dismissed, the
Civil Application for interim relief does not survive, and stands
disposed of, accordingly.
At this stage, Mr.G.T.Dayani, learned
counsel for the appellant, has prayed that since the appellant is
occupying the land for many years, and would like to approach the
higher forum, some protection may be granted. In view of the
submission of the learned counsel for the appellant that the
appellant is occupying the land for the past many years, and in the
interest of justice, status-quo, as it exists today, qua the suit
property, be maintained for a period of eight weeks from today.
(Smt.Abhilasha Kumari, J.)
(sunil)
Top