Arvind Kumar Soni vs State And Ors
2022 Latest Caselaw 2850 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Second Appeal No. 824/2007
Arvind Kumar Soni S/o Shri Jai Narain Soni, Minakshi Road, Ward
No.8, Sikar
                                                                    ----Appellant
                                     Versus
1.      State Of Rajasthan Through The District Collector, Sikar
2.      The District Collector, Sikar
3.      The Assistant Engineer, Ajmer Vidhyut Vitaran Nigam Limited,
        Division-Ii, Fatehpur Road, Khatri House, Sikar
4.      The Executive Engineer O And M, Ajmer Vidhyut Vitaran Nigam
        Limited, Sabalpura Power House, Sikar
5.      The Superintending Engineer Oandm, Ajmer Vidhyut Vitaran
        Nigam Limited, Sabalpura Power House, Sikar
                                                                 ----Respondents

For Appellant(s)          :     Mr. Ranvijay Singh for
                                Mr. Siddharth Bapna
For Respondent(s)         :     Mr. Akshay Sharma, Addl.GC


        HON'BLE MR. JUSTICE SUDESH BANSAL
                     Judgment
05/04/2022

Appellant-plaintiff has filed this second appeal assailing the

judgment and decree dated 10.10.2007 passed in Civil Appeal

No.109/2005 by the Court of Additional District Judge No.2, Sikar

while allowing the first appeal filed by respondent-State, the civil

suit instituted by the appellant-plaintiff has been dismissed.

It is a case where the appellant-plaintiff was granted

permission for keeping a cabin of 10*10 ft. in the premise of

district collectrate, Sikar. The permission was granted on

19.06.1999 and the same was withdrawn/cancelled on

27.07.1999. It is admitted case that after dismissal of appellant's

suit vide impugned judgment dated 10.10.2007, the cabin of

appellant has been removed on 13.11.2007 and there is no

interim stay order operating in favour of the appellant in the

(2 of 5) [CSA-824/2007]

present second appeal. The present second appeal is pending

since 2007 at admission stage.

The perusal of previous order-sheets goes to show that the

appellant evaded hearing of appeal for admission several times for

one or other reasons. Today again a request for adjournment has

been made which is declined.

It appears from the record that in the public premise of

district collectrate, Sikar on the application of appellant, the

District Collector, Sikar granted permission vide letter dated

19.06.2019 to keep a cabin measuring 10*10 ft. by appellants in

order to operate the photostat machine and to do lamination

work. No tenders were invited prior to such allotment and it seems

that the permission was granted on the personal application

moved by appellant. Soon after granting the permission, the Bar

Association of the district collectorate opposed the permission

granted to the appellant and general public also raised objection

as by keeping the cabin in the public premise, it was noticed that

the same is causing hindrance to the public at large due to paucity

of space in the district collectorate, Sikar. Accordingly, the District

Collector withdraw/cancelled his permission vide letter dated

27.07.1999.

As per the case of appellant, he had deposited annual licence

fee for the period 01.07.1999 to 30.06.2000. The appellant,

instituted a civil suit claiming that the permission dated

19.06.1999 is a lease for perpetual period and therefore, his lease

cannot be determined/terminated unilaterally vide subsequent

letter dated 27.07.1999 that too without issuing any notice and

without giving any opportunity of hearing to him. Respondent-

State opposed the claim of appellant alleging inter alia that the

(3 of 5) [CSA-824/2007]

permission dated 19.06.1999 was granted as licensee however,

since it was found that it is opposed to public interest, the same

was withdrawn immediately w.e.f. 27.07.1999. It was contended

by respondent that it was merely a licence for a temporary period

which has been revoked and it is not a case of issuing a lease for

perpetual period.

The learned trial court decided the appellant's suit in his

favour and passed the decree for not removing his cabin without

following due process of law.

The respondent-State assailed the judgment and decree of

trial court by filing first appeal. The first appellate court re-

considered the whole issue and examined the nature of permission

dated 19.06.1999. The appellate court on re-appreciation of the

permission coupled with the other documentary and oral evidence

observed that such permission cannot be treated as a lease as

defined under Section 105 of the Transfer of Property Act rather

such permission, at the most can be treated as licence defined

under Section 52 of the Easement Act, 1972. The first appellate

court concluded that since the permission dated 19.06.1999 is in

the nature of licence, the respondent-State is well within its right

and jurisdiction to revoke the same and no vested right stands

create in favour of appellant to claim an opportunity of hearing.

Accordingly, the first appeal was allowed and while quashing the

judgment and decree of trial court, appellant's suit was dismissed

vide judgment dated 10.10.2007.

Appellant-plaintiff has challenged the judgment dated

10.10.2007 by way of this second appeal. In this second appeal,

no interim stay was granted in favour of appellant, hence the

respondents have removed the cabin of appellant by following due

(4 of 5) [CSA-824/2007]

process of law on 13.11.2007. Thereafter, appellant moved an

application on 19.03.2008 seeking restoration of his cabin during

course of appeal however, the application is pending since then

and neither the appellant pursued the appeal on merits nor

pursued his application.

Heard counsel for both parties and perused the impugned

judgment dated 10.10.2007 as well as record of both courts

below.

This Court finds that the issue as to whether the permission

dated 19.06.1999 granted by the respondent-State to the

appellant is lease or licence, depends on the intention of the

parties, attending circumstances and the relevant evidence on

record. The Supreme Court, in case of C.M. Beena & Anr. vs.

P.N. Ramachandra Rao reported in [(2004) 3 SCC 595] has

clearly observed that a licence may not be treated as a lease

unless and until, the same fulfills necessary ingredients as defined

under Section 105 of the Transfer of Property Act. In the case at

hand, the first appellate court, on appreciation of permission

dated 19.06.1999 coupled with the other evidence and intention of

the parties, has categorically observed that the permission cannot

be treated as a lease. Otherwise also, the appellant himself has

deposited the licence fee only for a year. The perusal of permission

dated 19.06.1999 itself goes to show that it was not for a

perpetual period but only a temporary arrangement/permission

was granted to the appellant to start work of photostat machine

and lamination in the interest of the public at large however, when

it was found that the permission is against the interest of public

and it is the public at large who is facing hardship because of

keeping the cabin in the premise of district collectorate, Sikar

(5 of 5) [CSA-824/2007]

immediately permission was withdrawn. No vested right was found to

be created in favour of appellant by virtue of such permission. The

permission was found to be granted without following the due process

of law as neither any tenders were invited nor any other objection or

the procedural aspect was followed. The findings recorded by the first

appellate court are fact findings based on appreciation of evidence.

At the stage of second appeal, re-appreciation of evidence to draw

another conclusion of fact findings other than the courts below is not

permissible unless and until the findings impugned are found to be

perverse or leads to manifest injustice. Learned counsel for appellant

could not point out any infirmity/illegality, perversity or jurisdictional

error in the fact findings recorded by the first appellate court. Hon'ble

Supreme Court in case of Arumugham Vs. Sundarambal reported in

[JT 1994 (4) SC 464] has observed that the first appellate court has

jurisdiction to vary/ modify/reverse the findings of the trial court, if the

same were found infirm or illegal. Thus, the findings recorded by the

first appellate court after reversal of the findings of the trial court are

well within jurisdiction. The fact findings recorded by the first appellate

court do not give rise to any substantial question of law. In absence of

substantial question of law, the second appeal is not worth for

admission and accordingly is found bereft of merits. Otherwise also, it is

not in dispute that cabin of appellant has already been removed way

back on 13.11.2007, have the second appeal is hereby dismissed. No

order as to costs.

Stay application as well as any other pending application, if any,

stand disposed of.

The record of courts below be sent back.

(SUDESH BANSAL),J

SAURABH/73

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