{"id":151597,"date":"2008-09-16T00:00:00","date_gmt":"2008-09-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ghanshyambhai-vs-city-on-16-september-2008"},"modified":"2017-01-13T08:24:21","modified_gmt":"2017-01-13T02:54:21","slug":"ghanshyambhai-vs-city-on-16-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ghanshyambhai-vs-city-on-16-september-2008","title":{"rendered":"Ghanshyambhai vs City on 16 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Ghanshyambhai vs City on 16 September, 2008<\/div>\n
Author: Abhilasha Kumari,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSA\/212\/2008\t 26\/ 29\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSECOND\nAPPEAL No. 212 of 2008\n \n\nwith\n \n\nCIVIL\nAPPLICATION No.10743 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHON'BLE\nSMT. JUSTICE ABHILASHA KUMARI\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil   judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n\n \n\nGHANSHYAMBHAI\nCHHATAMAL KORANI - Appellant(s)\n \n\nVersus\n \n\nCITY\nSURVEY SUPERINTENDENT & 1 - Respondent(s)\n \n\n=========================================================\nAppearance : \nMR\nGT DAYANI for Appellant(s)\n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 16\/09\/2008 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
\tThe appellant has filed the present
\n\tAppeal being aggrieved and dissatisfied by the judgment and decree
\n\tdated 8.8.2008 rendered by the learned Presiding Officer, 2nd
\n\tFast Track Court, Nadiad, in Regular Civil Appeal No.24 of 2006,
\n\twhereby, the judgment and decree dated 21.1.2006 passed by the
\n\tlearned 5th Additional Senior Civil Judge, Nadiad, in
\n\tRegular Civil Suit No.38 of 2002, has been confirmed.\n<\/p>\n
\tThe brief facts leading to the filing
\n\tof the Appeal are as follows:\n<\/p>\n
\tThe appellant was the plaintiff before
\n\tthe trial Court and for the sake of convenience, the parties will be
\n\treferred to as they appear in the present Appeal. The appellant is a
\n\tresident of Kapadwanj and is carrying on the business activities at
\n\tthat place. The respondent No.1 is the City Survey Superintendent
\n\tand the respondent No.2 is the Kapadwanj Nagarpalika. The case of
\n\tthe appellant before the trial Court was that the respondent No.2
\n\thad passed a Resolution dated 26.9.1953 whereby a piece of land had
\n\tbeen allotted to his late father, in the year 1960, as a refugee.
\n\tThe said Resolution had been sent to the local District Authority
\n\tfor permission and accordingly, the respondent No.2 had decided to
\n\trecover 4 (Four) Annas per sq.ft. from the allottee. Thereafter, the
\n\trespondent No.2 had started recovering rent and special tax from the
\n\tfather of the appellant. It was the case of the appellant that the
\n\trespondent No.2 had allotted plots to refugees, in City Survey
\n\tNo.6232 or alternatively 6223, outside the compound of Mukhya Kumar
\n\tShala at Sarkhaliya Darwaja, and the appellant is in possession of a
\n\tplot which was occupied by his father, at the relevant point of
\n\ttime. According to the appellant, his father had made one temporary
\n\twooden cabin thereon and was doing the business of Paan-Beedi. After
\n\tthe demise of his father, in the year 1976, the appellant applied to
\n\tthe respondent No.2 to transfer the suit property in his name and
\n\tthe respondent No.2 transferred the plot to the appellant by
\n\taccepting a transfer fee by a Resolution dated 5.10.1976. It was the
\n\tcase of the appellant that until his father was doing the business
\n\tof Paan   Beedi till his death and was paying all the taxes and
\n\thad obtained necessary licences from the Nagarpalika for the
\n\tbusiness purpose. It is stated that before the death of his father
\n\tin the year 1980, the suit property was transferred in the name of
\n\tthe brother of the appellant and necessary Resolution to this effect
\n\twas also passed by the respondent No.2 and at present, the property
\n\tis running in the name of his brother and his brother is paying
\n\tnecessary taxes and plaintiff is doing the business of watch
\n\trepairing since 1976 in the suit property and, therefore, has
\n\tinterest in the suit property. The term of licence has been extended
\n\tby the respondent No.2 from the initial period of seven years, for a
\n\tperiod of ten years and thereafter has been renewed from time to
\n\ttime. The case of the appellant before the trial Court was that the
\n\trespondent No.1 has no concern with the suit property, as the said
\n\tproperty is situated in the city of Kapadwanj, about 25 to 30 feet
\n\taway from the main public road. The respondent No.1 issued a notice
\n\tfor eviction dated 15.1.2002, under the provisions of Section 61 of
\n\tthe Bombay Land Revenue Code, 1879 (hereinafter referred to as  the
\n\tCode ) which, according to the appellant, is vague and not in
\n\taccordance with law and, therefore, the appellant filed the
\n\tabove-mentioned suit, praying for the relief of restraining the
\n\trespondent No.1 from interfering, in any manner, with the use and
\n\toccupation of the suit property by the appellant.\n<\/p>\n
\tThe suit was contested by the
\n\trespondent No.1 on behalf of the State Government, by filing a
\n\twritten statement at Ex.24 wherein the averments made in the plaint
\n\twere denied. It was contended that the suit property is not situated
\n\ton the land acquired by the respondent No.2 (Nagarpalika) but is
\n\tsituated on the land of respondent No.1 (State Government). It was
\n\tcontended that the appellant has not produced any letter of
\n\tpermission from the respondent No.1 in favour of the respondent No.2
\n\tto allow the appellant to occupy the said land. It was contended in
\n\tthe written statement that the respondent No.1 has not allotted the
\n\tsuit property to the appellant by way of licence or lease and the
\n\trespondent No.2 has no right to allot the suit property to the
\n\tappellant by lease or licence, without the prior permission of the
\n\tState Government. It was also stated that the notice dated 15.1.2002
\n\tissued by the respondent No.1 is in conformity with the provisions
\n\tof the statute and there is no violation of law. The respondent No.1
\n\talleged that the appellant had encroached upon the land belonging to
\n\tthe State Government and, therefore, the suit may be dismissed.\n<\/p>\n
\tA written statement was also filed by
\n\tthe respondent No.2, at Ex.20, wherein it was contended that no
\n\tletter of sanction of the local authority is found on the record,
\n\tand as per the Resolution dated 26.9.1953, the suit land is part of
\n\tthe main road and has been allotted to the appellant. It was also
\n\tstated that no survey number of the suit property has been entered
\n\tin the City Survey records, but due to a mistake on the part of an
\n\temployee of the Kapadwanj Nagarpalika, a survey number of the
\n\tproperty has been wrongly mentioned in the receipt. The respondent
\n\tNo.2 has categorically denied that any permission for construction
\n\ton the suit land had been granted to the appellant. It was further
\n\tstated that, at the time of allotting the land to the appellant, the
\n\trespondent No.2 had not asked the appellant to vacate the suit land
\n\tas it was not obstructing the main road. It was further stated that
\n\tthe respondent No.2 has not given any notice to the appellant and
\n\tthe suit may be dismissed.\n<\/p>\n
\tOn the above pleadings, the trial
\n\tCourt framed the following issues:\n<\/p>\n
\t(i) Whether the plaintiff proves that
\n\the is the lawful tenant of the plot in question, being Plot No.2 of
\n\tCity Survey No.6232?\n<\/p>\n
\t(ii) Whether the plaintiff proves that
\n\tthe notice dated 15.1.2002 issued by the respondent No.1 is illegal
\n\tand without authority of law?\n<\/p>\n
\t(iii) Whether the respondent proves
\n\tthat the suit of the plaintiff is bad due to non-issuance of
\n\tstatutory notice?\n<\/p>\n
\t(iv) Whether the plaintiff is entitled
\n\tfor the relief, as prayed for?\n<\/p>\n
\t(v) What order and decree?\n<\/p>\n
\tThe trial Court recorded negative
\n\tfindings on Issues Nos.1 to 4. The findings of the trial Court are
\n\tthat the appellant is in possession of the suit land but, on the
\n\tbasis of the evidence on record, it is proved that the appellant is
\n\tnot a lawful tenant of the respondent No.2. The trial Court also
\n\tfound that the notice dated 15.1.2002 issued by the respondent No.1
\n\tunder the provisions of Section 61 of the Code is in accordance with
\n\tlaw as, undoubtedly, the suit land belongs to the State Government.
\n\tThe trial Court also found that the respondent No.2 had no right to
\n\tallot the suit land to the appellant, without the prior sanction of
\n\tthe State Government. Another finding arrived at by the trial Court
\n\tis that the suit property is not situated on City Survey No.6232, as
\n\tclaimed by the appellant and as the land belongs to the State
\n\tGovernment, notice dated 15.1.2002 by the respondent No.1 under the
\n\tprovisions of Section 61 of the Code to the appellant, suffers from
\n\tno legal infirmity. The trial Court has also observed that the
\n\tappellant has not prayed for a declaration to the effect that the
\n\tnotice is illegal and, without jurisdiction, therefore, it is not
\n\topen to him to ask for the consequential relief for grant of
\n\tpermanent injunction, restraining the respondents from dispossessing
\n\thim from the suit property. The trial Court has arrived at a
\n\tspecific finding that the appellant has failed to prove that he is a
\n\tlawful tenant of the respondent No.2 and the respondent No.2 had no
\n\tright to allot the land belonging to the State Government to the
\n\tappellant without prior sanction,  and, therefore, the appellant is
\n\tnothing more than a trespasser. Ultimately, the suit was dismissed.\n<\/p>\n
\tIn appeal, the first appellate Court,
\n\tafter considering the arguments advanced by the appellant and the
\n\trespondents, and after discussing the issues framed by the trial
\n\tCourt and its findings thereupon, confirmed the findings arrived at
\n\tby the trial Court to the effect that the appellant is not the
\n\ttenant of the respondent No.2 and the respondent No.2 had not taken
\n\tthe prior permission of the State Government before allotting the
\n\tsuit property to the appellant, as the suit land belongs to the
\n\tState Government. The finding of the trial Court that the appellant
\n\tis not a lawful tenant upon the suit land has been confirmed, and
\n\tthe judgment and decree of the trial Court upheld, giving rise to
\n\tthe present Appeal.\n<\/p>\n
\tMr.G.T.Dayani, learned counsel for the
\n\tappellant has submitted as under:\n<\/p>\n
\t(a) The notice dated 15.1.2002 issued
\n\tby the respondent No.1 is  illegal and without jurisdiction,
\n\tinasmuch as the same has been issued by the City Survey
\n\tSuperintendent whereas, as per the provisions of Section 61 of the
\n\tCode, it should have been issued by the Collector. It is submitted
\n\tthat there is nothing on the record to show that the Collector has
\n\tdelegated his powers to the City Survey Superintendent and as
\n\tprovided in the Gujarat Land Revenue Rules, 1972, this power may be
\n\tdelegated to the Mamlatdar and Mahalkari, and therefore, the notice
\n\tdated 15.1.2002, is illegal and without jurisdiction. It is
\n\tsubmitted that the findings of both the trial Courts below are
\n\terroneous.\n<\/p>\n
\t(b) The notice issued under the
\n\tprovisions of Section 61 of the Code could not have been issued
\n\twithout holding an inquiry under the provisions of Section 37(2) of
\n\tthe Code, and this aspect has also been overlooked by both the
\n\tcourts below. Reliance has been placed by the learned counsel for
\n\tthe appellant upon Rajkot Municipal Corporation v. State of
\n\tGujarat & Ors.<\/a> – 1997(2) GLR 1281. It
\n\tis submitted that as the provisions of Section 80(1) of the Bombay
\n\tProvincial Municipal Corporations Act, 1949, are analogous to
\n\tSection 37(2) of the Code, therefore, an inquiry in the matter was
\n\tnecessary and in the absence of an inquiry under Section 37(2) of
\n\tthe Code, the notice under Section 61 could not have been issued.
\n\tReliance has also been placed on Vaghela Dahyabhai
\n\tChaturbhai v. State of Gujarat And Another<\/a>   1970(11) GLR 386
\n\tin support of the above contention.\n<\/p>\n
\t(c) The appellant is the tenant of the
\n\trespondent No.2 (Nagarpalika), which has issued rent receipts to him
\n\tand has transferred the right in the suit property to the appellant
\n\tby accepting a donation. It is further submitted that the respondent
\n\tNo.2  has never issued any notice to the appellant and, therefore,
\n\tthe notice issued by the respondent No.1, is without the authority
\n\tof law.\n<\/p>\n
\t(d) Both the Courts below have not
\n\tconsidered material evidence on record, namely, a copy of the
\n\tdeposition of one Shri Dipak Ramchandra Thakre, in another Civil
\n\tSuit, which was produced before the trial Court, in which it is
\n\tstated that the respondent No.1 had no power to issue such a notice.\n<\/p>\n
\t(e) The first appellate Court has not
\n\texamined the evidence critically and has not adopted any process of
\n\treasoning and therefore the judgment rendered by it cannot stand. In
\n\tsupport of this contention, reliance has been placed on Balraj
\n\tTaneja And Another v. Sunil Madan And Another<\/a>   (1999)8 SCC 396
\n\tand State of Rajasthan v. Harphool Singh (Dead) Through His LRs<\/a>
\n\t(2000)5 SCC 652.\n<\/p>\n
\tOn the strength of the above
\n\tsubmissions, it is prayed by the learned counsel for the appellant
\n\tthat the appeal may be admitted, and allowed, and the judgments and
\n\tdecrees of both the Courts below may be quashed and set aside.\n<\/p>\n
\tI have heard the learned counsel for
\n\tthe appellant, perused the documents on record and considered the
\n\tsubmissions made at the Bar.\n<\/p>\n
\tThe first submission canvassed by the
\n\tlearned counsel for the appellant is that the notice dated 15.1.2002
\n\tissued by the City Survey Superintendent to the appellant is illegal
\n\tand without jurisdiction, on the ground that it has not been issued
\n\tby the Collector. In order to examine this submission, it would be
\n\tuseful to refer to the provisions of Section 61 of the Code, which
\n\tread thus:\n<\/p>\n
\t 61. Penalties for
\n\tunauthorized occupation of land :-\n<\/p>\n
\tAny person who shall unauthorizedly
\n\tenter upon occupation of any land set apart for any special purpose,
\n\tor any unoccupied land which has not been alienated, and any person
\n\twho uses or occupies any such land to the use or occupation of which
\n\tby reason of any of the provisions of this Act he is not entitled or
\n\thas ceased to be entitled shall, <\/p>\n
\tif the land which he unauthorizedly
\n\toccupies forms part of an assessed survey number, pay the assessment
\n\tof the entire number for the whole period of his unauthorized
\n\toccupation, and<\/p>\n
\tif the land so occupied by him has
\n\tnot been assessed, such amount of assessment as would be leviable
\n\tfor the said period in the same village on the same extent of
\n\tsimilar land used for the same purpose; and shall also be liable, at
\n\tthe discretion of the Collector, to a fine not exceeding five
\n\trupees, or a sum equal to ten times the amount of assessment payable
\n\tby him for one year, if such sum be in excess of five rupees, if he
\n\thas taken up the land for the purposes of cultivation, and not
\n\texceeding such limit as may be fixed in rules made in this behalf
\n\tunder section 214, if he has used it for any non-agricultural
\n\tpurpose.\n<\/p>\n
\tThe Collector’s decision as to the
\n\tamount of assessment payable for the land unauthorizedly occupied
\n\tshall be conclusive, and in determining its amount occupation for a
\n\tportion of a year shall be counted as for a whole year.\n<\/p>\n
\tThe person unauthorizedly occupying
\n\tany such land may be summarily evicted by the collector, and any
\n\tcrop raised in the land shall be liable to forfeiture, and any
\n\tbuilding, or other construction, erected thereon shall also, if not
\n\tremoved by him  after such written notice as the Collector may
\n\tdeem reasonable, be
\n\tliable to forfeiture, or to summary removal.\n<\/p>\n
\tForfeitures under this section
\n\tshall be adjudged by the Collector, and any property so forfeited
\n\tshall be disposed of as the Collector may direct and the cost of the
\n\tremoval of any encroachment under this section shall be recoverable
\n\tas an arrear of land revenue.\n<\/p>\n
\tAs is clear from reading of the above
\n\tprovision of law, Section 61 of the Code authorises the Collector to
\n\tlevy a fine to the extent mentioned in the said Section or summarily
\n\tcause the unauthorised occupant of the land to be evicted, after
\n\twritten notice as deemed reasonable by the Collector is issued to
\n\thim. The unauthorised occupant may thereafter be liable to be
\n\tremoved summarily and the land forfeited to the Government. The last
\n\tparagraph of the said Section contains the provisions for issuance
\n\tof notice. According to the said provision, a person who is
\n\tunauthorisedly occupying any such land may be summarily evicted by
\n\tthe Collector and any crop raised in the land shall be liable to be
\n\tforfeited. The section provides for a written notice, as the
\n\tCollector may deem reasonable, to be issued, to the unauthorised
\n\toccupant, before summary removal or forfeiture. The said Section
\n\tnowhere mandates that the notice issued under Section 61 of the Code
\n\thas to be issued in the name of the Collector only. It mentions
\n\twritten written notice   as the Collector may deem reasonable .
\n\t Chapter II of the Gujarat Land Revenue Rules, 1972, delineates the
\n\tpowers and duties of Officers as far as administrative orders are
\n\tconcerned. Under the said Chapter, certain administrative orders are
\n\tmentioned. As far as Section 61 of the Code is concerned, it is
\n\tmentioned that by Government Resolution, Revenue Department,
\n\tNo.8833\/43, dated 3rd December, 1951, powers may be
\n\tdelegated by the Collector to the Mamlatdar and Mahalkaris by name
\n\tas well as by virtue of office. This Government Resolution is dated
\n\t3rd December, 1951, and there is nothing on record to
\n\tshow that no further administrative orders have been passed in this
\n\tregard. Therefore, the submission made by the learned counsel for
\n\tthe appellant  does not carry much weight, as in the present case,
\n\tthere is nothing on record to prove that the notice could not have
\n\tbeen issued by the respondent No.1. It is  a settled position of law
\n\tthat where the source of power exists, then the exercise of that
\n\tpower cannot be invalidated on the ground that it has been exercised
\n\tby another authority, who is acting on behalf of the competent
\n\tauthority. There is no material on record to show that the power has
\n\tbeen exercised wrongly by the respondent No.1. The Collector is
\n\tempowered to cause notice under Section 61 of the Code to be issued
\n\tas he deems reasonable and a notice contemplated by the provisions
\n\tof Section 61 of the Code has been issued by the respondent No.1.
\n\tThe findings of both the Courts below on this point are clear and
\n\tunambiguous. The trial Court has come to the conclusion that there
\n\tis no illegality and infirmity in the notice dated 15.1.2002 issued
\n\tby the respondent No.1, and the findings of the trial Court have
\n\tbeen confirmed by the first appellate Court. At the stage of Second
\n\tAppeal, findings of fact based upon appreciation of evidence on
\n\trecord cannot be gone into, especially as there is no perversity or
\n\tillegality in the conclusions arrived at by both the Courts below.\n<\/p>\n
\tThe trial Court has observed, and in
\n\tmy view rightly so, that the appellant has not prayed for the relief
\n\t of declaration to the effect that the notice dated 15.1.2002 is
\n\tillegal and, in the absence of such a prayer, the appellant cannot
\n\task for the consequential relief of permanent injunction to restrain
\n\tthe respondents from dispossessing him of the suit property. There
\n\tis no dispute regarding the fact that the suit land belongs to the
\n\tState Government and as per the provisions of Section 61 of the
\n\tCode, the State Government can issue notice to any person who is in
\n\tunauthorised occupation of land owned by the Government. The trial
\n\tCourt has also observed that it is specifically mentioned in the
\n\tnotice dated 15.1.2002 that the appellant can make a representation
\n\tagainst the notice within ten days of receipt thereof, which appears
\n\tnot to have been done and the civil suit has been filed
\n\tstraightaway.\n<\/p>\n
\tThe trial Court has, on the basis of
\n\tthe material on record, arrived at the conclusive finding that the
\n\tappellant has not been able to prove that the said notice is in any
\n\tway illegal or without jurisdiction. These findings have been
\n\tconfirmed by the first appellate Court. I find no infirmity therein,
\n\tso as to warrant interference, therefore, the submission advanced by
\n\tthe learned counsel for the appellant, cannot be accepted.\n<\/p>\n
\tA submission has been made by
\n\tMr.Dayani that the notice under Section 61 of the Code could not
\n\thave been issued without an inquiry being conducted under the
\n\tprovisions of Section 37(2) of the Code. This submission appears to
\n\thave been raised for the first time before this Court, as a reading
\n\tof the judgments of both the Courts below does not reveal that such
\n\tan argument was advanced before the Courts below. Section 37 of the
\n\tCode provides that all public roads and lands, which are not the
\n\tproperty of individuals, are declared to be with all rights, the
\n\tproperty of the Government. Section 37(2) of the Code provides that
\n\twhere any property or any right in or over any property is claimed
\n\tby or on behalf of the Government or by any person as against the
\n\tGovernment, it shall be lawful for the Collector or a survey
\n\tofficer, after formal inquiry of which due notice has been given, to
\n\tpass an order deciding the claim. This provision of law has no
\n\trelevance to issuance of notice under Section 61 of the Code. Had
\n\tsuch an inquiry been contemplated, it would have been so stipulated
\n\tin Section 61 by the legislature. I am unable to accept the
\n\tsubmission made by the learned counsel for the appellant that the
\n\tprovisions of Section 37(2) of the Code should have been invoked
\n\tbefore issuance of the notice under Section 61 of the Code as, in my
\n\tview, the provisions of  Section 37 of the Code have no relevance to
\n\tthe issuance of notice under Section 61 of the Code. The judgment
\n\tcited by the learned counsel for the appellant in Rajkot
\n\tMunicipal Corporation v. State of Gujarat & Ors.<\/a> (supra)
\n\tis, therefore, of no help to the case of the appellant. In that
\n\tcase, the claim against Government land was made by the Rajkot
\n\tMunicipal Corporation and the Court observed that in reference to
\n\tthe provisions of Section 80 of the Bombay Provincial Municipal
\n\tCorporations Act, 1949, any claim with respect to any immovable
\n\tproperty by or on behalf of the Corporation will have to be
\n\tadjudicated upon by the Collector after a formal inquiry. The Court
\n\tcame to the conclusion that Section 80(1) of the Bombay Provincial
\n\tMunicipal Corporations Act, 1949, is analogous to Section 37(2) of
\n\tthe Code and, therefore, the claim of the Corporation with respect
\n\tto the land, said to be belonging to the Government, will have to be
\n\tadjudicated upon in accordance with Section 80(1) of the said Act.
\n\tThe above-referred to judgment has no relevance to the facts of the
\n\tpresent case. Similarly, the judgment in  Vaghela
\n\tDahyabhai Chaturbhai v. State of Gujarat And Another<\/a> (supra)
\n\tdoes not take the case of the appellant any further, as it deals
\n\twith the provisions of Section 37(1) of the Code which, as already
\n\tdiscussed hereinabove, are not relevant in the facts and
\n\tcircumstances of the case.\n<\/p>\n
\tAs regards the third contention of the
\n\tlearned counsel for the appellant to the effect that the appellant
\n\tis the tenant of the respondent No.2   Nagarpalika; the trial
\n\tCourt has arrived at a specific finding on the basis of evidence on
\n\trecord that the suit land belongs to the respondent No.1 (State
\n\tGovernment) and as per the provisions of Section 65(2) of the
\n\tGujarat Municipalities Act, 1963, the Nagarpalika is required to
\n\tobtain the prior sanction of the State Government in case of lease
\n\tof immovable property for a term exceeding ten years. The
\n\tNagarpalika does not deny that the suit land is part of the public
\n\troad and, as such, permission has to be obtained from the respondent
\n\tNo.1. The trial Court has, therefore, held that the appellant has
\n\tnot produced any evidence that permission has been granted by the
\n\trespondent No.1 to the respondent No.2, for leasing the suit land to
\n\thim. It is an admitted position that the respondent No.2  –
\n\tNagarpalika has not obtained permission from the State Government as
\n\tper the requirements of Section 65(2) of the Gujarat Municipalities
\n\tAct, 1963. The trial Court has found that the appellant is not a
\n\tlawful tenant of the respondent No.2 as the respondent No.2 had no
\n\tright to give the suit land on lease without following the statutory
\n\trequirements of Section 65(2) of the Code. Moreover, it has been
\n\tobserved by the trial Court that no permission of the respondent
\n\tNo.1 to give the suit property on rent or any contract between the
\n\tappellant and the respondent No.2 has been produced on record to
\n\testablish the relationship of landlord and tenant between the
\n\tparties. On the basis of the evidence on record and relying upon the
\n\tprovisions of Section 65(2) of the Gujarat Municipalities Act, the
\n\ttrial Court has concluded that as there is no prior permission from
\n\tthe respondent No.1 to lease the suit land to the appellant for a
\n\tperiod exceeding ten years, and the appellant is not a lawful tenant
\n\tas the arrangement between the appellant and the respondent No.2
\n\tdoes not have any legal sanction. The 1st appellate Court
\n\thas confirmed the findings of the trial Court.\n<\/p>\n
\tThe learned counsel for the appellant
\n\thas also contended that both the Courts below have not appreciated
\n\tthe evidence brought on record in the shape of a copy of the
\n\tdeposition given by one Shri Dipak Ramchandra Thakre in another
\n\tcase, to the effect that the respondent No.1 had no power to issue
\n\tthe notice under Section 61 of the Act. I am afraid, this submission
\n\tis stated merely to be rejected at this stage. Once the trial Court
\n\thas come to the conclusion that the notice dated 15.1.2002 under the
\n\tprovisions of Section 61 of the Code does not suffer from any
\n\tillegality, which finding has been confirmed by the first appellate
\n\tCourt, the deposition made by a witness in another case will not
\n\thave any relevance, especially as the entire evidence has been
\n\tproperly appreciated by the courts below. At the stage of Second
\n\tAppeal, the Court will not enter into re-appreciation of evidence,
\n\ton flimsy grounds.\n<\/p>\n
\tLastly, it has been argued by
\n\tMr.Dayani that the judgment of the first appellate Court does not
\n\treveal any process of reasoning and there is no critical examination
\n\tof the evidence on record. In Balraj Taneja And Another v. Sunil
\n\tMadan And Another<\/a> (supra) relied upon by him in support of this
\n\tcontention, the Supreme Court has held that a judgment as defined in
\n\tSection 2(9) of the Code of Civil Procedure means the statement
\n\tgiven by the Judge of the grounds for a decree or order which should
\n\tbe a self-contained document from which it should appear as to what
\n\twere the facts and circumstances and what was the controversy which
\n\twas  tried to be settled by the Court and in what manner. It has
\n\tbeen held that the process of reasoning by which the Court came to
\n\tthe ultimate conclusion and decreed the suit should be reflected
\n\tclearly in the judgment. In  State of Rajasthan v. Harphool Singh
\n\t(Dead) Through His LRs<\/a> (supra) relied by the learned counsel for
\n\tthe appellant, it has been held that under Section 96 of the Civil
\n\tProcedure Code, the duty of the first appellate Court is to make a
\n\tcritical analysis of the matter before it and not mechanically
\n\taffirm the findings of the trial Court without due and proper
\n\tapplication of mind. There can be no doubt regarding the principles
\n\tof law enunciated in both the above-mentioned judgments. Applying
\n\tthe said principles of law to the judgment rendered by the first
\n\tappellate Court, in my view, it cannot be said that it suffers from
\n\ta lack of reasoning or non-application of mind. The first appellate
\n\tCourt has discussed the rival contentions of the parties in detail
\n\tand has referred to the issues framed by the trial Court as well as
\n\tthe findings arrived at upon those issues and has thereafter
\n\tconfirmed the findings of the trial Court. In essence, it has agreed
\n\twith the reasoning of the trial Court and the conclusions based upon
\n\tit. The submission of the learned counsel for the appellant in this
\n\tregard is, therefore, not sustainable.\n<\/p>\n
\tNo other point has been urged before
\n\tme.\n<\/p>\n
\tThe admitted facts are that the State
\n\tGovernment is the owner of the suit land. The respondent No.2
\n\tNagarpalika is bound to obtain the prior sanction of the State
\n\tGovernment, if it wanted to lease the land for a period exceeding
\n\tten years, as the land is adjoining the public road, as provided by
\n\tSection 65(2) of the Gujarat Municipalities Act, 1963, which has,
\n\tadmittedly, not been done. There are clear findings of fact by both
\n\tthe Courts below that the suit land does not bear the survey number
\n\tattributed to it by the appellant and nor has the appellant been
\n\table to adduce any evidence to the effect that he is the lawful
\n\ttenant thereupon. There is also a specific finding that the notice
\n\tissued by the respondent No.1 under the provisions of Section 61 of
\n\tthe Code suffers from no legal infirmity.\n<\/p>\n
\tThe findings of fact arrived at by the
\n\ttrial Court on the basis of cogent evidence on record have been
\n\tconfirmed by the first appellate Court. Concurrent findings of fact
\n\tof the Courts below are based upon substantial evidence on record.\n<\/p>\n
\tIn a Second Appeal preferred under the
\n\tprovisions of Section 100 of the Code of Civil Procedure, the Court
\n\tmay not interfere with the findings of fact based upon cogent
\n\tevidence or re-appreciate the evidence, especially when no
\n\tperversity, illegality or infirmity is found in the judgments of the
\n\tCourts below.\n<\/p>\n
\tHaving gone through the memorandum of
\n\tthe appeal, in my considered view, the questions framed therein by
\n\tthe learned counsel for the appellant are either questions of fact
\n\tor mixed questions of fact and law, and no question of law, leave
\n\talone any substantial question of law within the meaning of Section
\n\t100 of the Code of Civil Procedure, 1908, arises for consideration
\n\tin this Appeal.\n<\/p>\n
\tFor the above-stated reasons, the
\n\tAppeal must fail, and stands dismissed.\n<\/p>\n
\tAs the Appeal has been dismissed, the
\n\tCivil Application for interim relief does not survive, and stands
\n\tdisposed of, accordingly.\n<\/p>\n
\tAt this stage, Mr.G.T.Dayani, learned
\n\tcounsel for the appellant, has prayed that since the appellant is
\n\toccupying the land for many years, and would like to approach the
\n\thigher forum, some protection may be granted. In view of the
\n\tsubmission of the learned counsel for the appellant that the
\n\tappellant is occupying the land for the past many years, and in the
\n\tinterest of justice, status-quo, as it exists today, qua the suit
\n\tproperty, be maintained for a period of eight weeks from today.\n<\/p>\n
\t   \t\t\t\t\t\t\t\t(Smt.Abhilasha Kumari, J.)               <\/p>\n
(sunil)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Ghanshyambhai vs City on 16 September, 2008 Author: Abhilasha Kumari,&Nbsp; Gujarat High Court Case Information System Print SA\/212\/2008 26\/ 29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 212 of 2008 with CIVIL APPLICATION No.10743 of 2008 For Approval and Signature: HON’BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-151597","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGhanshyambhai vs City on 16 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ghanshyambhai-vs-city-on-16-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ghanshyambhai vs City on 16 September, 2008 - 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