Gujarat High Court
Gujarat Mineral Development ... vs Vinod Purshottam Solanki on 8 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4875 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT MINERAL DEVELOPMENT CORPORATION (G.M.D.C)
Versus
VINOD PURSHOTTAM SOLANKI
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Appearance:
MR RASESH H PARIKH(3862) for the Appellant(s) No. 1
MR.HEMANG H PARIKH(2628) for the Appellant(s) No. 1
MR HARSHADRAY A DAVE(3461) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 08/12/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of this First Appeal, appellant- original defendant
has assailed the validity of judgment and order dated 24.3.2008
passed in Special Civil Suit No.92 of 1995 at Exh.322/A.
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2. Brief background of facts which has given rise to present
appeal is that present opponent- plaintiff who is said to have
several mining leases at various areas in the District of Kutchh
and out of that, for the purpose of excavation of gypsum in
village Lifri, Taluka Nakhatrana, District Kutchh. The opponent
applied for mining lease in the year 1978 out of Survey No.161.
Central Government by way of an order dated 25.1.1978 was
pleased to approve/ grant lease and in response thereto, the
then Collector, Kutchh informed the opponent- original plaintiff
on 30.7.1979 that lease deed required to be signed and upon
such intimation, the lease deed which was already prepared on
18.7.1978 for a period of 20 years was extended to the opponent
and possession is said to have been given.
3. It is the case of the original plaintiff that after handing
over of possession in the year 1979, the respondent excavated
Gypsum and as per the terms of the lease, royalty passes were
also obtained after making necessary from the Government. It is
the case of the original plaintiff- opponent herein that original
defendant- present appellant has no right over the land which
was allotted to the plaintiff, however though fencing was
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earmarked over the land in November/ December 1994, present
appellant- defendant intercepted the plaintiff and though the
original plaintiff had prepared a measurement on his own
expenditure, through District Land Records, present appellant-
defendant intercepted, which has resulted into serving of a
notice through an advocate on 19.12.1994. Said notice though
was served has not been replied and interception was continued
by the present appellant with the opponent, as such the
opponent initially filed Regular Civil Suit No.14 of 1995 and in
the said suit, even injunction order as prayed for was also
granted and against the said injunction order, appeal which has
been filed is said to be pending.
4. According to the opponent, further, present appellant from
the land allotted to the plaintiff has excavated the area to the
extent of 74,000 Sq. Mtrs. and took away Lignite and Cell as
also Gypsum which was stated to be overburdened and
therefore thrown out of the area and then the area to the
aforesaid extent was captured by the present appellant. This
action of the appellant has resulted into a serious loss to the
original plaintiff, i.e. present opponent, and since the appellant
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has taken away Gypsum to the extent of 29000 Tonne, market
value of it is a clear loss to the opponent- plaintiff to the extent
of Rs.58 lacs and as such for the purpose of securing such loss
of Rs.58 lac with 18% interest, the opponent has filed a separate
civil suit which was registered as Special Civil Suit No.92 of
1995 in the court of learned Principal Civil Judge, Bhuj- Kutchh.
5. Said Civil Suit was contested by the present appellant
being defendant by submitting a detailed written statement at
Exh.15 inter alia disputing the stand of the present opponent
and denied the claim and in addition thereto has also submitted
that in view of the fact that earlier suit, i.e. Regular Civil Suit
No.14 of 1995 has still not been adjudicated finally, present suit
does not deserve to be adjudicated any further and requested to
dismiss the same.
6. Upon completion of the pleadings, it appears that vide
Exh.42, Issues were framed and after considering the
documentary as well as oral evidence, the suit has been
adjudicated and by way of judgment and decree dated
24.3.2008, an amount of Rs.50 lac with 9% interest from the
date of the suit is ordered and the suit is allowed and decree
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been drawn.
7. It is against this judgment and decree passed by learned
Principal Senior Civil Judge, Bhuj Kutchh, present First Appeal
is filed by GMDC being original defendant.
8. The First Appeal by virtue of order dated 18.4.2009 came
to be admitted after hearing both the parties and later on from
time to time, same was adjourned and later on came up for
consideration finally before this Court in which learned
advocate Mr. Rasesh H. Parikh for the appellant has been heard
at length and learned advocate Mr. Harshadray A. Dave for the
opponent was heard and the appeal was reserved for judgment.
With aforesaid background, present First Appeal is taken up for
for its final disposal.
9. Learned advocate Mr. Rasesh Parikh appearing for the
appellant has vehemently contended that the judgment and
decree passed by the Court below is absolutely without any
sufficient reasons and finding is not based upon material
evidence and as such while taking decision, the object of Order-
XX Rule 5 of Code of Civil Procedure has not been maintained
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and as such on account of such flagrant violation of the
provision, impugned judgment and order being not sustainable
in the eye of law deserves to be quashed and set aside.
10. It has further been contended that there must be some
subjective satisfaction to the evidence which is already placed
on record. A close scrutiny of the said evidence would clearly
indicate that there is no corroboration to the findings arrived at
by the Court below, as such the judgment being suffering from
vice of non-application of mind deserves to be quashed.
11. It has further been contended that there is a grave error
committed by learned Court below that in determining the
principal fact in issue as to whether immovable property
demonstrated in the map accompanying the lease deed was the
very same property where mining was actually undertaken by
the present appellant. In the absence of said evidence, inference
which has been drawn by the Court below is absolutely uncalled
for. This description of property in the plaint was not at all
sufficient to identify the very same property. The concept of
Order-VII Rule 3 of Code of Civil Procedure ought not to have
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been ignored by the Court below. The suit does not give any
exact description of property and as such whole cause of action
itself is misconceived, which fact ought not to have been
ignored by the Court below. It has further been submitted that
Survey No.161 of village Lifri is consisting of huge parcel of
land about 334 Hectares, out of which for mining lease, only 10
Hectares of land was allotted to the present opponent, i.e.
original plaintiff, and as such without arriving at any finding
about identification of the suit property, it is absolutely unjust
and improper on the part of learned Trial Judge to arrive at a
conclusion and to award huge sum of amount though not
legitimately available. This finding in the absence of such
concrete material is perverse, hence decree is not sustainable.
12. Learned advocate Mr. Parikh has further submitted that
the lower Court ought to have appointed at least an expert
Court Commissioner to identity the portion of land and probable
quantity of availability of Gypsum, etc. In the absence of such
expert being appointed as required under Section 18A of the
Mines and Minerals (Development and Regulation) Act, 1957 or
ought to have appointed a Court Commissioner for seeking
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report from the Geological Survey of India, the finding which
has been arrived at is absolutely uncalled for. In absence of any
expert's opinion with regard to such material and its quantity,
decree ought not to have been passed. Whether the appellant
has undertaken the mining activity in the very same area of
original plaintiff itself is support-less and seriously in question,
learned Judge ought not to have without specifically
ascertaining arrived at a conclusion and awarded the huge
amount of compensation.
13. Learned advocate Mr. Parikh has further submitted that in
absence of panchnama by Collector/ Mamlatdar, demonstrating
delivery of the legal possession to the plaintiff and in the
absence of semblance of right to mine minerals, presumption
ought not to have been drawn as if the appellant has excavated
from the land portion leased out to the original plaintiff. Serious
infirmities have been reflected in the order which clearly
demonstrate a non-application of mind.
14. Learned advocate Mr. Parikh has further submitted that
even original plaintiff who was under an obligation to prove and
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burden lies on him to produce the best documentary evidence
available with him to indicate the boundary limits of lease area
as well as material and unless there is a report of the Collector
under Rule 33 of the Mineral Concession Rules, 1960 brought
on record, there is hardly any justification to arrive at a
conclusion to pass a decree. On the contrary, on the basis of
inadmissible evidence, the finding suffers from vice of non-
application of mind and same is perverse.
15. Learned advocate Mr. Parikh has further submitted that
there is admission of the plaintiff that he has been mining
Gypsum material on the lease area right from 1979 and without
ascertaining the quantum of Gypsum excavated by the original
plaintiff from 1979 to 1995 and without estimating the total
reserves of Gypsum in mine of the plaintiff by expert body, it is
absolutely improper to come to the conclusion that there is
availability of Gypsum still to the extent of 29000 Tonne.
Undisputedly, the plaintiff stated to have excavated the entire
area allotted to him right from 1979 to 1995. This being the
position, in absence of any concrete material, the conclusion
ought not to have been arrived at.
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16. Learned advocate Mr. Parikh has further submitted that
the maps which are tried to be relied upon by the plaintiff are
the maps prepared by a private Surveyor at Exh.258 and 272
dated 22.3.1994 which are not admissible in evidence about
demarcation of the lease area. Exh. 258 map cannot be
considered to be a public document since it has not been made
by the authority or the State Government. Even otherwise,
unless the land shown in the map is actually identified by the
Court Commissioner, it is impossible to jump to a conclusion
that the mining has been done by the appellant over the portion
of land of the plaintiff. Mr. Parikh has then submitted that if the
document at Exh.212/C could have been properly appreciated in
the right spirit, the appellant was never given possession of the
area by the Collector over which the plaintiff enjoyed mining
lease and hence in absence of that material, it was not open for
the Trial Court to jump to a conclusion that the appellant has
removed the overburden of Gypsum to mine Lignite. The
appellant was never given possession of the area over which the
original plaintiff was granted mining lease. It is only for the first
time on 23.5.2001, i.e. after expiration of the mining period of
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the plaintiff, so the question of appellant Corporation entering
into demised premises for mining Lignite is out of place. It is
only in 2001 at least, the appellant Corporation can be said to
have enjoyed possession but that too whether earlier it was of
plaintiff or not, that has no semblance of evidence and as such
on overall consideration, it is absolutely a case of no evidence
and misconceived cause of action which ought not to have been
entertained by the Court below.
17. Apart from this, learned advocate Mr. Parikh has further
submitted that even subsequent suit, i.e. present decree which
has been challenged, i.e. Special Civil Suit No.92 of 1995, is hit
by Order-II Rule-2 of Code of Civil Procedure on account of
undisputedly pendency of earlier suit, i.e. Regular Civil Suit
No.14 of 1995, and said suit was very much pending when the
present suit is filed and as such subsequent suit on account of
its pleadings itself ought to have been dismissed not being
reflecting any justifiable cause of action.
18. Learned advocate Mr. Parikh has further submitted that
considering the deposition at Exh.213 of Mr. Bhavin D. Shah,
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undue weightage has been given to his deposition, who cannot
be considered as expert witness at all approved by the
Government. Learned Trial Court ought to have procured the
expert's evidence only by resorting to a procedure under
Section 18A of the Mines and Minerals (Development and
Regulation) Act, 1957 since the Mines & Minerals Act 1957
specifically lays down a statutory procedure to determine
boundary marks and to ascertain presence of particular mineral
within the mine. It was obligatory on the part of learned Trial
Court to adopt such procedure which is prescribed under a
specific Statute and in absence of such expert's evidence being
gathered, sole undue reliance ought not to have been made at
Exh.213, who is neither an expert nor his evidence is admissible
in view of the provisions of the Evidence Act. Probative value in
absence of any corroboration cannot be attached to such
evidence.
19. Learned advocate Mr. Parikh has further submitted that
allowing Mr. Ashok Somabhai Parmar to depose at Exh.257/C is
also illusory in view of the fact that said person was not the
person involved in making and preparing the map of DILR which
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is produced at Exhs.258 and 272 and as such since said Mr.
Ashok Somabhai Parmar who is neither a team in preparation of
DILR report whose evidence is insignificance, especially when
DILR map itself is not proved by the original plaintiff and as
such his deposition, i.e. deposition of Mr. Ashok Somabhai
Parmar at Exh.257, has lost its significance which the Trial
Court ought to have appreciated. Learned advocate Mr. Parikh
has further submitted that on the contrary the map which has
been produced at Exh.258/c, 272/c as well as 208/c cannot be
said to have been prepared by District Inspector of Land
Records and the map cannot be considered as prepared under
Rule-33 of the Mineral Concession Rules, 1960. Hence, the map
prepared and tried to be relied upon cannot form part of the
legitimate evidence based upon which claim can be awarded.
Hence, a serious error is committed by the Court below in
passing the decree.
20. Learned advocate Mr. Parikh apart from this has further
submitted that deposition of Mr. Amrutlal Karsan Chauhan at
Exh.261 is also inadmissible evidence in view of the fact that it
was machinery of GMDC, i.e. present appellant, which was
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excavating Gypsum over the suit land and when it clearly
deposed that it has not checked the RC book of said machinery,
said evidence of Amrutlal Chauhan at Exh.261 ought not to have
been considered more particularly when he was an interested
witness of the plaintiff.
21. Learned advocate Mr. Parikh has further submitted that in
the similar way, even deposition of Mr. Murji Topan Vankar at
Exh.262 also not to be considered or rather ought not to have
been relied upon more particularly when this witness was not
aware about the boundary of the plaintiff's leasehold area and
as such on the basis of weak piece of evidence without any
corroborative evidence, the conclusion is arrived at which is
absolutely unjust and not in consonance with the material on
record and such grave error which has been committed requires
setting aside of impugned judgment and award.
22. Learned advocate Mr. Parikh has further exhaustively
submitted that deposition of Mr. Jayanti Ishwardan Gadhvi at
Exh.271 also not to be considered in view of the fact that said
evidence is of an interested witness of plaintiff and the map
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prepared by it was not in regular course of duty, hence no
undue weightage ought to have been given. The case cannot be
said to have been established by the plaintiff on the basis of
such material. On the contrary, a further deposition of Mr.
Bhikhalal Harji Siyani at Exh.276 also deserves no
consideration. In addition to this, a grave error is committed by
not considering the provisions of Section 21 of the Mines and
Minerals (Development and Regulation) Act, 1957. It is only the
State Government which has right to recover damage or
compensation for illegal mining and not by the plaintiff at all.
The Trial Court ought to have ignored this material aspect more
particularly when there is no privity of contract between the
opponent and the appellant nor the appellant is liable for any
tortious act even if might have been committed. That being so,
when the plaintiff has no right at all to institute a suit, itself
there is hardly any reason to pass judgment and decree and that
too to the extent of substantial sum /claim which has been made
in the suit itself.
23. Learned advocate Mr. Parikh has then submitted that a
specific application was given below Exh.67 raising objection to
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the mode of evidence of examination in chief on affidavit by
plaintiff's witness ignoring the procedure envisaged under
Order-XVIII Rule 5 of Code of Civil Procedure. Rejection of such
application itself has vitiated the very exercise of jurisdiction
undertaken by the Court below.
24. Apart from this, it has further been contended that the
Trial Court is miserably failed in justifying the reasons or
finding about the market value of Gypsum mineral and the
quantum of Gypsum mineral actually allowed to have been
mined by the appellant. The Trial Court while passing the
judgment and decree, more particularly on arriving at a
conclusion on that issue, has ignored the basic rules of evidence
and procedure and departure cannot be made in the manner in
which the Trial Court has undertaken. Presumption about
excavation of Gypsum material to the extent of 29000 Tonne is
merely a support-less assertion by the plaintiff and the Trial
Court has completely ignored the cross-examination of Power of
Attorney holder of the plaintiff at Exh.53 when it was clearly
admitted by the plaintiff that availability of Gypsum material in
the mine varies from place to place and that availability of
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Gypsum throughout the mine is not uniform. So, when that be
so, undisputedly by the stand of the plaintiff itself, there is
hardly any justification to arrive at a conclusion that the
appellant has illegally mined 29000 Tonne of Gypsum material.
So, the conclusion arrived at is based upon ipse dixit, there is no
concrete material and burden of proof is miserably failed and
observed by the plaintiff. That being the situation, the judgment
and decree deserves to be quashed and set aside.
25. Lastly, learned advocate Mr. Parikh has submitted that the
only piece of evidence which is said to be relied upon is a
communication dated 4.2.2004 for arriving at a huge amount of
Rs.50 lac and odd, but such evidence at Exh.82 is absolutely
support-less, having no evidentiary value, not proved by the
plaintiff and in absence of it, the finding being perverse to the
material on record and the judgment and decree is based upon
conjectures and surmises, same be quashed and set aside as not
sustainable.
26. Even otherwise, according to learned advocate Mr. Parikh,
the order impugned is laconic, contrary to the material on
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record, deserves to be quashed else there would be a manifest
miscarriage of justice.
27. To support his contentions, learned advocate Mr. Parikh
has then relied upon the decisions delivered by the Hon'ble
Apex Court in the case of Nahar Singh v. Harnak Singh and
others reported in (1996) 6 SCC 699 and in the case of State of
Rajasthan and Another v. Ferro Concrete Construction Private
Limited reported in (2009) 12 SCC 1, which will be dealt with in
the present order at an appropriate stage and by referring to
such decisions and proposition contained therein, request is
reiterated to set aside the judgment and decree passed by the
Court below.
28. As against this, learned advocate Mr. Harshadray A. Dave
appearing on behalf of original plaintiff, i.e. opponent herein,
has vehemently opposed the stand of the appellant by
contending that there is adequate material available with
learned Trial Judge to come to a conclusion and the conclusion
arrived at is just and fair and does not require any interference.
Mr. Dave has submitted that undisputedly, the lease land has
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been earmarked and handed over and description of land was
very much available on record. In addition thereto, the lease
deed also being part of the record at Exh.207 which reflects the
description of land and therefore simply because it has not been
specifically mentioned in the judgment, itself it is not open for
the appellant to contend that area is not earmarked nor
demarcated.
29. Learned advocate Mr. Dave has submitted that in addition
to the lease deed at Exh.207, even the map has also been
prepared at Exh.208 and allotment has also been a part of the
record at Exh.210, which relates to Survey No.161/2. When that
be so and additionally, when there is a clear assertion made in
paragraph-5 of the plaint itself, the stand taken by the appellant
is not sustainable in the eye of law.
30. According to learned advocate Mr. Dave, there is enough
evidence available on record to justify that the appellant has
undisputedly excavated the land and when that fact has already
been specifically asserted and supported by evidence on record,
there is hardly any justification to the stand taken by the
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appellant.
31. Apart from this, learned advocate Mr. Dave has submitted
that huge amount of loss has been suffered by the present
plaintiff to the extent of Rs.58 lacs, as against that, merely an
amount of Rs.58 lac has been awarded and as such the balance
is struck by the Court below in awarding the amount. On the
contrary, according to Mr. Dave, even GMDC, i.e. present
appellant, has not disputed the Gypsum material and when that
be so, there is hardly any reason to contend that there is any
error committed by the Court below in passing the impugned
judgment and order.
32. Learned advocate Mr. Dave has then submitted that by
virtue of the proposition of law laid down by the Hon'ble Apex
Court in the case of Zarif Ahmad (Dead) Through Legal
Representatives and Another v. Mohd. Farooq reported in
(2015) 13 SCC 673 on the issue of Order-VII Rule-3 of Code of
Civil Procedure, case is not made out by the appellant to call for
any interference and hence, requested to dismiss the appeal.
Mr. Dave has reiterated that it is a well reasoned order and
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irrespective of pendency of earlier suit, since independent cause
has arisen, rigor of Order-II Rule-2 of Code of Civil Procedure
would not come into play, hence appeal being merit-less
deserves to be dismissed.
33. In rejoinder to this stand being taken, learned advocate
Mr. Rasesh Parikh has submitted the evidence of Mr. Jayanti
Ishwardan Gadhvi at Exh.271 is not trustworthy evidence, it is a
self-contradictory and there is no independent documentary
evidence to justify. Mr. Parikh further submitted that simply
because valuation is not disputed, it cannot be said that quantity
has been admitted nor disputed. On the contrary, the amount is
not established by the original plaintiff and apart from that,
quantity has not at all been identified even by learned Trial
Judge by any evidence. Hence, the order in question is
absolutely uncalled for in the eye of law and not sustainable,
hence the same be quashed and set aside and the appeal be
allowed. No other submission has been made by either side.
34. Having heard learned advocates appearing for the parties
and having gone through the material on record, to arrive at an
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ultimate conclusion in the present proceedings, some few
material aspects deserve attention, hence the Court would deal
with the same hereunder.
35. First of all, the settled proposition of law is that plaintiff
has to prove his case independently without relying upon
weakness even if in the defense of the defendant and has to
prove and establish the case with corroborative material. Here,
no-doubt, pursuant to the application, lease was granted in
favour of the original plaintiff in the year 1979 and asserted that
same was for a period of 20 years and was undertaking
excavation activity. However, it appears from the record that
Survey No.161 is a traversed land consisting of huge parcel of
about more than 300 Hectares, out of which only 10 Hectares of
land has been leased out to the plaintiff. From the deposition, it
has been revealed that the plaintiff was having other lease over
Survey Nos.167 and 168 but has admitted in cross-examination
that 10 Hectares of land has not been deducted from overall
Survey No.161 and it has also been accepted that there is no
report obtained about the land through Geology Department of
the State. It is also coming out from the evidence that Power of
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Attorney was given to the father and out of the period from
1978 to 1999, 64 receipts have been issued on which no
signature of the plaintiff is reflecting and further, it has been
accepted that excavated material is not pit-mouth value noted
and it has also been accepted as is reflecting from internal page
10 of the order impugned that no fencing is undertaken of the
allotted land and 10 acre which was assigned of village Lifri was
related to Bentonite. From the affidavit, it is admitted that there
is no complaint filed of any nature by the original plaintiff with
regard to mining of Gypsum from the land nor any complaint is
made related to trespass and despite aforesaid material
available on record, it appears that without properly analyzing
the evidence, learned Trial Judge has come to a conclusion that
the defendant has excavated Gypsum from the land. This
appears to be perverse to the record as is prima facie borne out
from the record.
36. In addition thereto, from the evidence of Bhavin D. Shah at
Exh.213, who was Geologist at relevant point of time and has
said that plaintiff Vinodbhai Solanki met him for soliciting
opinion with regard to 10 Hectares of Survey No.161 and at that
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point of time, plaintiff had given copies of map of DILR and
relevant documents related permission and on the basis of that
material has opined that defendant -GMDC has dug out the land
admeasuring 7.40 Acres consisting of 74000 Sq. Mtrs. This
witness has accepted in his cross-examination that when he
visited the site, no officer from DILR was present nor went with
any measurement machinery along with that and merely on the
basis of measurement tape, it appears that he has opined about
excavation. So, this witness appears to have not succinctly
established the fact about measurement in the absence of any
tool about measurement and has visualized the site in absence
of any officer from DILR.
37. Yet, another evidence of Ashok Somabhai Parmar at
Exh.257, who happened to be a Surveyor in the office of DILR in
1993 has accepted in cross-examination that measurement had
been done on 22.3.1994 which measurement-sheet is
superimposed on the basis of 1979 map.
38. Yet another plaintiff's witness at Exh.276 Bhikhalal Harji
Siyani has deposed that he was assigned the work of mining
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contract by GMDC, i.e. defendant, and at the time of excavation,
Gypsum, Lignite and other minerals being excavated but in
cross-examination he could not say that out of land,
approximately 12 to 13 lac cubic sand might have been
excavated. So, on the basis of the aforementioned material,
prima facie, it appears that it would be very difficult to come to
a definite conclusion that the defendant has excavated the land
belonging to original plaintiff, more particularly when there is
no measurement officially undertaken since Survey No.161 is a
huge parcel of land.
39. From the record, it has further been revealed that the
Project Administrative Officer Sanjaykumar Manubhai Rathwa
of defendant GMDC deposed at Exh.300 specifically that they
have not excavated anything from the land leased out to the
original plaintiff and since excavation of Lignite being risky
work, at their own expenditure, fencing was done and at that
stage, plaintiff in December 1994 had raised an objection. It has
further been asserted by this witness of the defendant that
pursuant to such notice, due deliberation took place and
compromise in oral had taken place and there remained no
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dispute with regard to portion of the land and has clearly
indicated that no Gypsum is taken out to the extent of 29000
Tonne from the land and as such the defendant is not
responsible to pay the amount as claimed of Rs.58 lac. Learned
Court below has not believed this version on the ground that
from 12.1.2004, this deponent is serving at Kutchh and as such
at the time when the suit was filed, what was the position is not
within the knowledge of this witness. At the same time, one
another witness Suni N. Patil of defendant has deposed at
Exh.303 that in the defendant Corporation, he was In-charge of
the project being Geologist somewhere in 1996-97 and has
submitted even in cross-examination that there is a clear report
seen by him that at the spot in question, no Gypsum can be
found. Such report is also seen by him as per the say of this
witness. On the basis of the aforesaid material, learned Trial
Judge has come to the conclusion that it is clear that the
defendant has excavated the Gypsum from the land leased out
to the plaintiff, but how and to what extent same is excavated is
not known to this witness. Apart from this, yet another witness
Piyush Rajnikant Shah at Exh.304 who happened to the
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Geologist since 15 years in the defendant Corporation has
submitted that he has not inquired as to whether from the
disputed land, goods have been taken out and royalty is paid or
not. So, based upon this kind of material available on record,
learned Trial Judge appears to have jumped to a conclusion that
the defendant Corporation has excavated the land leased out to
the plaintiff and on the basis of the documentary evidence, land
is excavated to the extent of 74000 Sq. Mtrs. and thereby has
jumped to a conclusion about the loss to the extent of Rs.50 lac.
This conclusion which has been arrived at is not well-supported
by the material on record as prima facie appearing from the
analysis undertaken by learned Trial Judge. It appears that
evidence on record, documentary as well as oral evidence, has
not been discussed at length nor examined in its proper
perspective and appears to have come to a conclusion of the
definite nature which finding is reflecting perversity. On the
contrary, the conclusion appears to be self-contradictory if the
last part of the order if to be seen, there is neither specific
quantity about alleged excavation found from the record not
definite loss is coming forth from the record, still learned Trial
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Judge has jumped to a conclusion that there is a loss to the
extent of Rs.50 lac.
40. From the overall material on record, it is borne out that
there is no demarcation of the land undertaken by the
competent authority and on the basis of private Surveyor, an
attempt is made to claim alleged loss and that too to the extent
of Rs.50 lac.
41. In the light of the aforesaid material on record, which has
been discussed by learned Trial Judge and in light of the
evidence, with a view to ascertain as to whether the conclusion
is well-supported or not OR is in consonance with law or not,
certain provisions are also not possible to be ignored.
42. The provision contained under Mines and Minerals
(Development and Regulation) Act, 1957 is governing the
regulating and developing minerals. Section 18 in the Chapter
of Development Minerals obliges the Central Government to
take steps for the systematic development of minerals in India
and for such purpose to make the rules. In response to that,
powers are entrusted to the authority to make investigation.
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Section 18A deals with the power to authorize Geological
Survey of India, etc. to make investigation. Since the said
provision is insisted upon, the Court deems it proper to
reproduce the same hereunder:-
"18A. Power to authorize Geological Survey of India, etc., to
make investigation.-
(1) Where the Central Government is of opinion that for the
conservation and development of minerals in India, it is
necessary to collect as precise information as possible with
regard to any mineral available in or under any land in
relation to which any prospecting licence or mining lease has
been granted, whether by the State government or by any
other person, the Central Government may authorise the
Geological Survey of India, or such other authority or agency
as it may specify in this behalf, to carry out such detailed
investigations for the purpose of obtaining such information
as may be necessary:
Provided that in the cases of prospecting licences or mining
leases granted by a State Government, no such authorisation
shall be made except after consultation with the State
Government.
(2) On the issue of any authorisation under sub-section (1), it
shall be lawful for the Geological Survey of India or the
specified authority or agency, and its servants and workmen -
(a) to enter upon such land,
(b) to dig or bore into the sub-soil,
(c) to do all other acts necessary to determine the extent of
any mineral available in or under such land,
(d) to set out boundaries of the land in which any mineral is
expected to be found,
(e) to mark such boundaries and line by placing marks,
(f) where otherwise the survey cannot be completed on the
boundaries and line marked, to cut down and clear
away any part of any standing crop, fence or jungle:
Provided that no such authority or agency shall enter into any
building or upon any enclosed court or garden attached to a
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dwelling-house (except with the consent of the occupier
thereof) without previously giving such occupier at least
seven days' notice in writing of its intention to do so.
(3) Whenever any action of the nature specified in sub-section (2)
is to be taken, the Central Government shall, before or at the
time when such action is taken, pay or tender payment for all
necessary damage which is likely to be caused, and in case of
dispute as to the sufficiency of the amount so paid or tendered
or as to the person to whom it should be paid or tendered, the
Central Government shall refer the dispute to the principal
civil court of original jurisdiction having jurisdiction over the
land in question.
(4) The fact that there exists any such dispute as is referred to in
sub-section (3) shall not be a bar to the taking of any action
under sub-section (2).
(5) After the completion of the investigation, the Geological
Survey of India or the specified authority or agency by which
the investigation was made shall submit to the Central
Government a detailed report indicating therein the extent
and nature of any mineral which lies deposited in or under the
land.
(6) The costs of the investigation made under this section shall be
borne by the Central Government.
Provided that where the State Government or other person in
whom the minerals are vested or the holder of any
prospecting licence or mining lease applies to the Central
Government to furnish to it or him a copy of the report
submitted under sub-section (5), that State Government or
other person or the holder of a prospecting licence or mining
lease, as the case may be, shall bear such reasonable part of
the costs of investigation as the Central Government may
specify in this behalf and shall, on payment of such part of the
costs of investigation, be entitled to receive from the Central
Government a true copy of the report submitted to it under
sub-section (5).
43. In addition thereto, the Rules which have been framed
under the Act, as stated above, also governing the Mineral
Development and Rule 30 deals with 'Right of Lessee' and
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Section 31 prescribes the provision with regard to lease to be
granted. Rule 33 is dealing with 'Survey of the area leased'. So,
whenever a mining lease is granted by the State Government,
arrangement shall be made by the state Government at the
expenses of the lessee for the survey and demarcation of the
area granted under lease and the survey of the area leased is to
be conducted by Total Station and Differential Global
Positioning System. Now, if we see the evidence on record, in
the present case, survey appears to have not been undertaken
in consonance with the procedure as prescribed above and if the
Rules in co-relation with the other procedure if to be seen, it
appears that learned Trial Judge has not minutely examined the
case and the evidence ought to have been analyzed in the
context of aforementioned provisions as well which are
undisputedly applicable.
44. Simultaneously, it appears undisputedly that on earlier
occasion, a suit has been submitted by this very plaintiff being
Regular Civil Suit No.14 of 1995, which is with regard to
substantially the same lease. Now, by virtue of Order-II Rule 2
and 3 of the Code of Civil Procedure, if a plaintiff omits or leaves
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out or relinquishes any claim, except leave of the Court, he shall
not afterwards sue for any relief so omitted. Said provision thus
reads as under:-
"2. Suit to include the whole claim.--(1) Every suit shall include
the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish and
portion of his claim in order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of claim.--Where a plaintiff
omits to sue in respect of, or intentionally relinquishes, any
portion of his claim, he shall not afterwards sue in respect of the
portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.--A person
entitled to more than one relief in respect of the same cause of
action may sue for all or any of such reliefs; but if he omits,
except with the leave of the Court, to sue for all such reliefs, he
shall not afterwards sue for any relief so omitted."
45. In addition thereto, perusal of Order-VII Rule 3 of Code of
Civil Procedure is also indicating that where the subject matter
of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and in case
such property can be identified by boundaries or numbers in a
record of settlement or survey, the plaint shall specify such
boundaries or numbers and if that has not been observed, even
plaint can be rejected as held in the case of Ambamna v.
Ghanteappa reported in AIR 1999 KAR 421. So, perusal of the
plaint of a subsequent suit, i.e. the suit out of which impugned
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order is passed, it appears that learned Trial Judge ought to
have examined the case from this angle as well.
46. Apart from that, a perusal of yet another provision
indicates that it is obligatory on the part of the Court to state in
its decision the specific findings on each issue. Said Order-XX
Rule 5 of Code of Civil Procedure reads as under:-
"5. Court to state its decision on each issue.--In suits
in which issues have been framed, the Court shall state its
finding or decision, with the reasons therefor, upon each
separate issue, unless the finding upon any one or more of
the issue is sufficient for the decision of the suit."
47. So, keeping in view the aforementioned provisions in
juxtaposition of evidence on record, we are of the opinion that
the findings arrived at by the Court below are not sufficient
enough to justify the impugned order and there appears to be a
non-application of mind on certain issues which are stated
herein-before. Exercise of jurisdiction undertaken by the Court
below appears to be laconic and not in consonance with the
provisions of law, more particularly when, as discussed above,
demarcation and reports of the private Surveyors are not that
much justifying the claim of the plaintiff. However, be that as it
may, since the exercise undertaken by the Court below is not
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germane to law and not in consonance with the relevant
proposition of law laid down by catena of decisions, we are of
the opinion that the issue raised by the plaintiff and the
defendant's stand deserves a fresh consideration and we say so
on account of the well-settled proposition of law laid down by
the Hon'ble Apex Court in the case of Commissioner of
Income Tax- v. Rashtradoot (HUF) reported in (2019) 5
SCC 149 and in the case of State of Orissa and others v.
Chandra Nandi reported in (2019) 4 SCC 357. Relevant
paragraphs of judgment reported in (2019) 5 SCC 149 are
reproduced hereunder:
"13. This Court has consistently laid emphasis that every
order/judgment, which decides the lis between the parties,
must contain the reason(s)/ground(s) for arriving at a
particular conclusion. Indeed, what is decisive for deciding
the case is not the conclusion alone but the
reason(s)/ground(s) assigned in support of such conclusion,
which results in reaching to such conclusion.
14. In order to decide as to whether the impugned order is legally
sustainable or not, the Appellate Court is entitled to know as
to what impelled the Court below to pass such order in favour
of one party and against the aggrieved party. We find that this
requirement is missing in the impugned order of this case and
hence the interference is called for. (See− State of
Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC
129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2
SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607,
Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519
and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568).
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And relevant paragraphs of judgment reported in (2019) 4
SCC 357 are reproduced hereunder:
"9. The need to remand the case to the High Court has
occasioned because from the perusal of the impugned order,
we find that it is an unreasoned order. In other words, the
High Court neither discussed the issues arising in the case,
nor dealt with any of the submissions urged by the parties and
nor assigned any reason as to why it has allowed the writ
petition and granted the reliefs to the writ petitioner which
were declined by the Tribunal.
10. This Court has consistently laid down that every judicial
or/and quasi−judicial order passed by the
Court/Tribunal/Authority concerned, which decides the lis
between the parties, must be supported with the reasons in
support of its conclusion. The parties to the lis and so also the
appellate/revisionary Court while examining the correctness
of the order are entitled to know as to on which basis, a
particular conclusion is arrived at in the order. In the absence
of any discussion, the reasons and the findings on the
submissions urged, it is not possible to know as to what led
the Court/Tribunal/Authority for reaching to such conclusion.
(See − State of Maharashtra vs. Vithal Rao Pritirao Chawan,
(1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh &
Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001)
10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003)
11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5
SCC 568)."
48. In view of the aforesaid circumstances and in view of the
proposition of law laid down by the Hon'ble Apex Court, as
discussed above, we are of the opinion that impugned order
requires to be set aside as being suffering from vice of non-
application of mind and a fresh look deserves to be given to the
defense raised by the present appellant in the context of
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evidence on record and keeping in view the provisions, as stated
above, the evidence which has also been recorded requires to
be re-looked by the Court concerned.
49. Though we are conscious about the fact that enough time
has elapsed, but at the same time, when we found that certain
issues have not been properly examined by the Court below and
matter requires reconsideration, we deem it proper to remand
the matter back to the Court below to reconsider and pass a
fresh order in the interest of justice and in view of the fact that
no miscarriage of justice can take place and no parties to be put
to any jeopardy. Hence, without expressing any opinion on
merit, we are of the opinion that a case is made out for
reconsideration by remanding the matter back to the Court
concerned. Hence, we deem it proper to pass the following
order:-
ORDER
(1) The impugned judgment and order dated 24.3.2008
passed in Special Civil Suit No.92 of 1995 at
Exh.322/A by learned Principal Senior Civil Judge,
Bhuj- Kutchh is hereby quashed and set aside and as
a consequent thereof, learned Court below shall
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reconsider and re-analyze the evidence in the context
of the relevant provisions and shall pass a fresh
order in accordance with law after assigning proper
reasons.
(2) Since we are remanding the matter back to learned
Court below, we refrain ourselves from expressing
any opinion on merit and we leave it open to the
learned Court below to pass a fresh order
independently in accordance with law on the basis of
the material prevailing on record.
(3) Since considerable time has elapsed, as stated above,
we hereby direct learned Court below to reconsider
and pass a fresh order after granting adequate
opportunity to both the sides and to pass a fresh
reasoned order strictly in accordance with law as
expeditiously as possible, preferably within a period
of SIX MONTHS from the date of receipt of the
certified copy of this judgment.
50. With aforesaid observations, present First Appeal stands
ALLOWED IN PART.
Sd/-
(ASHUTOSH SHASTRI, J)
Sd/-
(DIVYESH A. JOSHI,J)
OMKAR
