Gujarat High Court
Mukeshkumar Arjunsinh Gurjar vs State Of Gujarat on 24 June, 2021
Bench: Nikhil S. Kariel
C/SA/36/2021 ORDER DATED: 24/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 36 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 36 of 2021
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MUKESHKUMAR ARJUNSINH GURJAR
Versus
STATE OF GUJARAT
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Appearance:
MR BOMI H SETHNA(5864) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,2,3,5
MR HIMANISH J JAPEE(11295) for the Respondent(s) No. 4
MR JV JAPEE(358) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/06/2021
ORAL ORDER
1. Heard learned Advocate Shri Bomi H. Sethna for the appellants and
learned AGP Shri Adityasinh Jadeja for the respondent No.1 - State
and learned Advocate Shri J.V. Japee with learned Advocate
Himanish J. Japee for respondent No.5 on caveat.
2. By way of this Second Appeal, the appellants - original plaintiffs
before the learned trial Court and the appellants before the First
Appellate Court seek to challenge the impugned judgment and order
passed by the learned 2nd Additional District Judge, Sabarkantha at
Idar in Regular Civil Appeal No.9 of 2007 dated 03.04.2019
confirming the judgment and order passed by the learned Principal
Senior Civil Judge, Idar in Regular Civil Suit No.126 of 2007 dated
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31.12.2013, whereby the Civil Suit preferred by the appellants -
plaintiffs had been rejected.
3. By way of Regular Civil Suit No.126 of 2007, the appellants -
plaintiffs had inter alia submitted that vide order dated 08.04.1960,
the land bearing City Survey No.5254p admeasuring 1297.09 Sq. Mtr.
had been allotted to defendant No.5 - M/s. Idar Club, in Civil Suit,
by way of revenue free grant and whereas the Club had constructed a
premises on the said land incurring expenditure and had also
constructed compound wall on the boundary of the land in question.
It was submitted that in the year 1977, the land which was on front
portion of the club admeasuring 10 x 10 ft. had been allotted to
defendant No.2 vide Resolution of Club dated 26.01.1977 for running
tea stall on monthly rent of Rs.19/-, whereupon the respondent No.2
had set up 2 tea stalls. It was further submitted that the remaining
portion of land in front side of Club had been rented out to plaintiff
No.1 for selling fruits and vegetables on monthly rent of Rs.80/-. It
was further submitted that father of the plaintiff No.1 was alive till
the year 1996 and whereas he was managing the club as its President.
It was further stated that though none of the conditions of the
allotment order had been breached but a notice for breach of
condition had been issued to one Kantibhai Dahyabhai Shah, who
was administrator of the acquired land in question and whereas the
said notice was stated to be illegal since father of the plaintiff No.1,
who was alive till the year 1996 and whereas after his demise, one
Hareshbhai was managing Club as its the Secretary. It is stated that
without opportunity of hearing to respondent No.5 Club, vide order
dated 16.01.1996, the Collector, defendant No.2 had come to a
conclusion that there was indeed breach of conditions and hence, the
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order of allotment had been cancelled. It is further stated that
respondent No.4 - Idar Municipality had requested the Collector to
allot the land in question to the Municipality and whereas the
Collector had allotted the land to Idar Municipality on condition to
deposit Rs.28,33,908/- and that the said amount is not deposited till
today. It is further stated that respondent No.4 had attempted
forcibly to take the possession of the land from the plaintiffs which
resulted into the plaintiffs preferred Writ Petition being Special Civil
Application No.384 of 2000 and 392 of 2000 before this Court and
whereas the said petitions were permitted to be withdrawn with a
liberty to submit a representation to the Idar Municipality which
representation had been submitted by the plaintiffs and whereas it
was informed to the plaintiffs that since the land belong to the State
Government, nothing is required to done on the representation. It is
further submitted that against the order dated 16.01.1996 passed by
the Collector setting aside the order of allotment, the plaintiffs had
preferred Revision Application before the defendant No.1 Revisional
Authority and whereas vide order dated 06.08.2005, said Revision
Application had been dismissed. It is stated that since the appellants
had apprehended that the possession might be forcibly taken of, they
had challenged the order passed by the Revisional Authority by filing
Regular Civil Suit No.126 of 2007, whereby in addition to prayer
seeking declaration that the orders dated 15.01.1992 and 13.07.2005
are illegal and void ab initio, it was also prayed that the plaintiffs
could not be dispossessed of land which was occupied by them as
tenants. Vide judgment and order dated 31.12.2013, the learned
Principal Civil Judge, Idar had dismissed Civil Suit inter alia holding
that though the plaintiffs had been given ample opportunity to
submit oral and / or documentary evidence the plaintiffs did not
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produce any evidence - documentary or oral in support of the Suit
and therefore, contention raised by them in the Suit had been
rejected.
4. The plaintiffs had challenged the same before the learned First
Appellate Court by preferring Regular Civil Appeal No.09 of 2017
and whereas vide judgment and order dated 30.04.2019, learned 2nd
Additional District Judge, Sabarkantha at Idar, had been pleased to
uphold the impugned judgment and order passed by the learned
Principal Civil Judge. The appellants - plaintiffs being aggrieved and
dissatisfied by the order passed by the learned trial Court as well as
the First Appellate Court, have preferred present Second Appeal the
same. The appellants have raised following 3 questions as being
substantial questions of law for consideration of this Court.
(i) Whether the 2nd Addl. District Judge erred in not
considering the aspect that principle of Natural Justice is
grossly violated by evicting the appellants?
(ii) Whether 2nd Addl. District Judge erred by not considering
the fact that till date the respondent No.4- Municipal
bureau, Idar has not paid an amount of Rs.28,33,908/- as
ordered in lieu of the land?
(iii) Whether the 2nd Addl. District Judge failed to consider the
aspect that no due procedure is followed in evicting the
appellants though they were in possession since 1977?
5. Learned Advocate Shri Bomi Sethna for the appellants has relied
upon additional documents submitted by the appellants under
heading list of relevant documents on behalf of the appellants, more
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particularly, documents purporting to be list of documents submitted
as evidence. Learned Advocate submits that the Civil Suit had been
initially preferred before learned Principal Civil Judge, Himmatnagar,
where Suit was numbered as Regular Civil Suit No.112 of 2005 and
whereas according to the learned Advocate, a list of 16 documents
had been submitted for the purpose of relying upon the same. He
submits that the list had also been submitted before the learned
Principal Civil Judge, who had decided the Civil Suit at Idar after the
suit had been transferred from Himmatnagar to Idar. Learned
Advocate submits that inspite of documents as evidence being placed
before the learned trial Court, yet learned trial Court had not taken
the same into consideration.
Learned Advocate further submits that the Collector as well as
the Revisional Authority being respondent Nos.1 and 2 had not taken
into consideration most vital fact that while passing the order setting
aside the allotment and while rejecting Revision Application of the
appellants for appropriate opportunity had not been granted to
respondent No.5 i.e. Idar Club. He submits that notice had been sent
to the person, who was not managing affairs of the club at the
relevant point of time and hence, principles of natural justice had not
been followed. In any case, learned Advocate submits that the Club
having given part of land allotted to it to the appellants on rent for
carrying out their business in the year 1977 and the appellant being in
occupation of the land from the said date, therefore, they could not
be possessed without following due process of law.
6. As against the same, learned AGP has submitted that the impugned
judgment and order passed by both the learned lower Courts does not
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suffer from any infirmity of whatsoever. He further submits that as
rightly noted by the learned First Appellate Court, the appellants
admitting having taken the land on rent is clearly proof of breach of
condition, that the respondent No.2 Collector while passing the order
of cancellation of allotment on the ground of breach of condition has
given cogent reasons. Learned AGP submits that in any case, the
respondent No.5 i.e. Idar Club to whom the land had been originally
allotted, having not challenged the order of setting aside of allotment
and hence, the same has become final between the respondent No.5
and the State. Under such circumstances, according to the learned
AGP, the appellants did not have any right whatsoever to claim
against the State Government. Learned AGP further submits that
questions raised by the appellant are not substantial questions of law
and therefore, the present Second Appeal may not be entertained by
this Court.
7. Learned Advocate Shri Japee has reiterated the submissions of
learned AGP. He further submits that in so far as issue of deposit of
amount with the State Government by respondent No.4 Idar
Municipality, that the same is an issue between the State Government
and the Municipality and whereas the order of Collector of
cancellation having become final and the land now being vested with
the State Government, it is not open for the appellants to raise any
grievance in that regard. Learned Advocate has also submitted that
the list of documents / evidence relied upon by the learned Advocate
for the appellants had not been produced before the learned trial
Court. He further submits that from the perusal of the judgment and
order passed by the learned trial Court, it becomes evident that inspite
of opportunities having been granted, no evidence had been relied
C/SA/36/2021 ORDER DATED: 24/06/2021
upon or led before the learned trial Court. He further submits that in
any case, if the evidence, which was produced had not been
considered by the learned trial Court, then the appellants ought to
have filed an application for review before the same Court. Further
learned Advocate submits that this contention of evidence which had
been produced not being relied upon by the learned trial Court having
not raised before Appellate Court as is evident from a perusal of the
Appeal as well as judgment of the learned Appellate Court and further
even before this Court, the appellants in their pleadings not having
raised any such contention, therefore, such contention may not be
entertained by this Court at this stage. He further submits that no
substantial questions of law have been raised in the present Second
Appeal and hence, Second Appeal deserves to be rejected by this
Court.
8. Learned Advocate Shri Sethna in rejoinder submits that the issue of
the learned Trial Court having not considered documentary evidence
submitted to the Court, was a question of law, which could be taken
up directly before this Court and in support of his submissions, he
has relied upon the judgment of the Supreme Court in the case of K.
Lubna Vs. Beevi & Ors. reported in 2020(2) SCC 524 as well as
decision of Supreme Court in the case of Nazir Mohamed Vs. J.
Kamala and Ors. reported in AIR 2020 Supreme Court 4321.
9. Heard learned Advocates for the parties and considered the record.
At the outset, it requires to be noted that while learned Advocate for
the appellants has submitted that the documentary evidence had been
placed before the learned Trial Court and whereas learned Trial Court
had not considered the same leading to breach of principles of natural
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justice yet on the other hand, from the judgment and order passed by
the learned Trial Court, it becomes evident that the learned Trial
Court had apparently given enough opportunity to the appellants for
submitting / leading evidence, but the same had not been done. At
para 5, learned Trial Court has observed "the plaintiffs had been
given enough and reasonable opportunity yet the plaintiff has neither
led any documentary evidence in support of the Civil Suit and
therefore, stage for leading evidence is closed". In view of this
specific observations of learned trial Court, it was incumbent upon
the plaintiffs either of having approached the same Court by filing an
application under Order 47, Rule 1 for review bringing to the notice
of the Court concerned about the error committed by the Court.
Furthermore, as submitted by the learned Advocate, respondent No.4
on caveat that even before the First Appellate Court, such an issue
had not been raised and even before this Court in this Second Appeal
neither there are any pleadings int that regard.
10. Furthermore, even the judgments relied upon by the learned
Advocate for the appellants clearly states set out the condition
precedent for examining a questions of law even at Appellate stage,
being that the factual foundation of the case to be examined being
laid. The observation of the Supreme Court in the case of K. Lubna
Vs. Beevi(Supra) would be beneficial in this regard.
"9. On the legal principle, it is trite to say that a pure question
of law can be examined at any stage, including before this
Court. If the factual foundation for a case has been laid and the
legal consequences of the same have not been examined, the
examination of such legal consequences would be a pure
question of law.
10. No doubt the legal foundation to raise a case by
C/SA/36/2021 ORDER DATED: 24/06/2021
including it in the grounds of appeal is mandated. Such
mandate was fulfilled by moving a separate application for
permission to urge additional grounds, a course of action,
which has already been examined by, and received the
imprimatur of, this Court in Chittoori Subbanna v. Kudappa
Subbanna.
11. We may also usefully refer to what has been observed by
Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh 3
in the following words:
"When a question of law is raised for the first time in a
court of last resort upon the construction of a document
or upon facts either admitted or proved beyond
controversy, it is not only competent but expedient in the
interests of justice to entertain the plea. The expediency of
adopting 1Yeswant Deorao Deshmukh v. Walchand
Ramchand Kothari 1950 SCR 852 2AIR 1965 SC 1325
31892 A.C. 473 that course may be doubted when the plea
cannot be disposed of without deciding nice questions of
fact in considering which the court of ultimate review is
placed in a much less advantageous position than the
courts below.
12. In our view, the aforesaid succinctly sets forth the
parameters of scrutiny, where the question of law is sought to
be raised at the final court stage. There are no nice questions of
fact required to be decided in the present case which would
dissuade us from examining this plea at this stage. We have set
forth the undisputed facts aforesaid. Thus, the only question is
whether this is a question of law which deserves to be
examined, and has ramifications in the present case."
11. From the decision of the Supreme Court quoted hereinabove, it
becomes clear that pure questions of law can be examined at any
stage, but such proposition is not unconditional. The Supreme Court
had set out the condition precedent i.e. legal foundation to raise a
case by including the same in ground of appeal is mandatory. In the
instant case from a perusal of record, it becomes clear that neither the
appellants herein had, as noted hereinabove, approached the Civil
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Court by filing Review Application bringing to the notice of the said
Court that the documents as evidence had been produced yet, the
same had not been taken into consideration by learned Court.
Further, the appellant had neither raised this issue in the memo of
appeal of the First Appeal nor the said issue had been raised before
the First Appellate Court in oral submissions. Even before this Court,
the appellant has not mentioned a word in this regard in the memo of
Second Appeal. Under such circumstances, the condition precedent
for raising questions of law at any stage i.e. legal foundation to raise a
case by including same in ground of appeal, is not fulfilled. Thus, this
Court is of the opinion that the aspect of whether the document as
evidence not being considered by the learned Trial Court inspite of
the same having been placed before the learned Trial Court is not a
question of law which ought to be examined at this stage.
12. Before analyzing the submissions on merits made on behalf of the
parties and recording findings arrived at by this Court, at this stage, it
would be beneficial to refer to observation of the Supreme Court in
the case of Nazir Mohamed Vs. J. Kamala and Ors. reported in AIR
2020 Supreme Court 4321, whereby the Supreme Court has set out
the principles for deciding when the questions of law become
substantial questions of law:
"29. The principles for deciding when a question of law becomes
a substantial question of law, have been enunciated by a
Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons
Ltd. v. Century Spg. & Mfg. Co. Ltd. 1, where this Court held:-
"The proper test for determining whether a question of law raised
in the case is substantial would, in our opinion, be whether it is of
general public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an
open question in the sense that it is not finally settled by this
Court or by the Privy Council or by the Federal Court or is not
free from difficulty or calls for discussion of alternative views. If
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the question is settled by the highest court or the general
principles to be applied in determining the question are well
settled and there is a mere question of applying those principles or
that the plea raised is palpably absurd the question would not be a
substantial question of law."
30. In Hero Vinoth v. Seshammal, this Court referred to and
relied upon Chunilal v. Mehta and Sons (supra) and other
judgments and summarised the tests to find out whether a given
set of questions of law were mere questions of law or substantial
questions of law.
31. The relevant paragraphs of the judgment of this Court in
Hero Vinoth (supra) are set out hereinbelow:-
"21. The phrase "substantial question of law", as occurring in the
amended Section 100 CPC is not defined in the Code. The word
substantial, as qualifying "question of law", means of having
substance, essential, real, of sound worth, important or
considerable. It is to be understood as something in
contradistinction with- technical, of no substance or consequence,
or academic merely. However, it is clear that the legislature has
chosen not to qualify the scope of "substantial question of law"
by suffixing the words "of general importance" as has been done
in many other provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The substantial question of
law on which a second appeal 2(2006) 5 SCC 545 shall be heard
need not necessarily be a substantial question of law of general
importance. In Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 :
AIR 1928 PC 172] the phrase substantial question of law as it was
employed in the last clause of the then existing Section 100 CPC
(since omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial
question of law which was involved in the case. In Sir Chunilal
case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the
Constitution Bench expressed agreement with the following view
taken by a Full Bench of the Madras High Court in Rimmalapudi
Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ
222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962
SC 1314] , SCR p. 557)
"When a question of law is fairly arguable, where there is room
for difference of opinion on it or where the Court thought it
necessary to deal with that question at some length and discuss
alternative views, then the question would be a substantial
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question of law. On the other hand if the question was practically
covered by the decision of the highest court or if the general
principles to be applied in determining the question are well
settled and the only question was of applying those principles to
the particular fact of the case it would not be a substantial
question of law."
32. To be "substantial", a question of law must be debatable, not
previously settled by the law of the land or any binding precedent,
and must have a material bearing on the decision of the case and/
or the rights of the parties before it, if answered either way.
33. To be a question of law "involved in the case", there must be
first, a foundation for it laid in the pleadings, and the question
should emerge from the sustainable findings of fact, arrived at by
Courts of facts, and it must be necessary to decide that question
of law for a just and proper decision of the case.
34. Where no such question of law, nor even a mixed question of
law and fact was urged before the Trial Court or the First
Appellate Court, as in this case, a second appeal cannot be
entertained, as held by this Court in Panchagopal Barua v. Vinesh
Chandra Goswami.
35. Whether a question of law is a substantial one and whether
such question is involved in the case or not, would depend on the
facts and circumstances of each case. The paramount overall
consideration is the need for striking a judicious balance between
the indispensable obligation to do justice at all stages and the
impelling necessity of avoiding prolongation in the life of any lis.
This proposition finds support from Santosh Hazari v.
Purushottam Tiwari.
36. In a Second Appeal, the jurisdiction of the High Court being
confined to substantial question of law, a finding of fact is not
open to challenge in second appeal, even if the appreciation of
AIR 1997 SC 1047 4(2001) 3 SCC 179 evidence is palpably
erroneous and the finding of fact incorrect as held in Ramchandra
v. Ramalingam5. An entirely new point, raised for the first time,
before the High Court, is not a question involved in the case,
unless it goes to the root of the matter.
37. The principles relating to Section 100 CPC relevant for this
case may be summarised thus :
(i) An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the terms of
a document is a question of law. Construction of a document,
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involving the application of any principle of law, is also a question
of law. Therefore, when there is misconstruction of a document
or wrong application of a principle of law in construing a
document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A
question of law having a material bearing on the decision of the
case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is not
covered by any specific provisions of law or settled legal principle
emerging from binding precedents, and, involves a debatable legal
issue.
(iii) A substantial question of law will also arise in a contrary
situation, where the legal position is clear, either on account of
express provisions of law or binding precedents, but the Court
below has decided the matter, either ignoring or acting contrary to
such legal principle. In the second type of cases, the substantial
question of law arises not because the law is still debatable, but
because the decision rendered 5 AIR 1963 SC 302 on a material
question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the
concurrent findings of the Courts below. But it is not an absolute
rule. Some of the well-recognized exceptions are where (i) the
courts below have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences from
proved facts by applying the law erroneously; or (iii) the courts
have wrongly cast the burden of proof. A decision based on no
evidence, does not refer only to cases where there is a total dearth
of evidence, but also refers to case, where the evidence, taken as a
whole, is not reasonably capable of supporting the finding. "
13. Now analyzing the questions raised by the appellant, this Court is of
opinion that none of the questions are substantial questions of law,
which would require interference by this Court. Question No.1 is
with regard to the appellant being evicted in violation of principles of
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natural justice not being considered. That as such the learned Trial
Court as well as learned First Appellate Court have held that the
appellant did not produce any evidence whatsoever in support of the
averments of the appellant in the Civil Suit. Thus, there is no
evidence to show that the appellant was in possession of the property
at all, for the appellant to claim eviction in breach of principles of
natural justice. The same consideration applies to Question No.3
also, which also based upon the premise that the appellant was in
possession since 1977 and they had been evicted without due
procedure being followed.
At this stage, it would be relevant to appreciate that there is no
privity of contract between the appellant and the State Government
as owner of the land, who had allotted the land by way of revenue
free grant to respondent No.5 herein.
In any case, in the considered opinion of this Court, from the
facts which are undisputable, it becomes clear that the appellants -
plaintiffs did not have any right whatsoever which he could have
claimed against the said defendants by filing Civil Suit. The
undisputable facts being:
(1) The land in question had been allotted to respondent
No.5 Club by way of revenue free grant of land subject to
conditions
(2) That the land allotted to the club had been allegedly
rented out to the appellants - original plaintiffs
(3) That the Collector had set aside allotment after giving
adequate opportunity to Club vide order dated 15.01.1996
and whereas the said order has not been challenged by the
Club and therefore, having become final between the parties.
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The appellants have claimed that the Government should not
oust them without following due process of law, but the issue which
is not addressed is of the right of the appellants to claim from the
State Government. The land in question had been allotted to the club
and whereas the club had allegedly rented out the part of the land to
the appellants, as such there being nothing on record to substantiate
the renting out of land. Be that as it may, the Government having set
aside the allotment of land in favour of respondent No.5 club and
the respondent No.5 having chosen not to challenge the said order
and the said order having become final between the parties
concerned, therefore, the land in question vested in the State
Government. The appellants herein do not have any independent
right to claim against the State Government since the land had never
been allotted to the appellants herein.
Thus, in the considered opinion of this Court, the appellants
do not have any right to raise claim against the State Government
directly. Furthermore, as noted hereinabove, the order of cancelling
the allotment, passed by the Collector has become final between the
concerned parties i.e. the Government and the respondent No.5 i.e.
Idar Club. The respondent No.5 having not challenged the said
order, present appellant would not have any independent right to lay
claim against the State Government.
14. As regards question No.2 the respondent No.4, Municipal Bureau
Idar having not paid the amount in lieu of the land having granted to
them, in opinion of this Court, neither the same is a question of law
nor even a question of fact, more particularly, since it is an issue with
which the present appellant has no concern whatsoever. That the
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appellant having not being able to prove any pre-existing right over
the land, which would get restored upon the Idar Municipality not
depositing the amount as directed by the Government, the appellant
has no concern whatsoever about the said transaction.
15. In view of the discussions, findings and conclusions hereinabove, this
Court is of the opinion that the questions raised by the appellants are
not questions of law much less substantial questions of law, which
would require interference by this Court. The Second Appeal being
completely devoid of merits and therefore, the same is rejected.
16. In view of the disposal of the Second Appeal, Civil Application No.1
of 2019 is disposed of.
(NIKHIL S. KARIEL,J)
Y.N. VYAS
