Rajasthan High Court
Secretary Urban Improvement ... vs M/S Gopal Tyres And Retraders Ltd on 4 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 473/2016
1. Secretary Urban Improvement Trust, Kota, Cad Circle,
Kota.
2. Chairman, Urban Improvement Trust Kota, Cad Circle,
Kota.
----Appellants
Versus
M/s. Gopal Tyres And Retraders P Limited, F-190, Road No. 5,
Indraprasth Industrial Area, Kota-5 Through Director Himanshu
Pareek S/o Satyanarayan Sharma.
----Respondent
For Appellant(s) : Mr. Satya Narain Kumawat
For Respondent(s) : Mr. Vimal Chand Chaudhary with
Mr. Diwakar Khaldwa
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
04/03/2022
The Urban Improvement Trust, Kota (for short "UIT"), has
preferred this second appeal assailing the judgment and decree
dated 27.07.2016 passed by the Additional District Judge No.3,
Kota in civil first appeal No.59/2012 whereby and whereunder, the
appellate court while reversing the judgment and decree dated
18.02.2012 passed by the Additional Civil Judge No.1, Kota
dismissing the respondent-plaintiff's suit, has allowed the first
appeal and the respondent-plaintiff's suit has partially been
decreed.
The appellate court found the plaintiff eligible and entitled for
allotment of plot in the Vishwakarma Automobile Nagar Scheme of
the UIT and passed an order against the appellant to allot the plot
(2 of 5) [CSA-473/2016]
No.236, corner extense having an area of 20 X 40 Ft. in the
scheme of Vishwakarma Automobile Nagar, Kota, which was laying
reserved with the UIT for allotment to the plaintiff under interim
orders of the Court.
It appears from the record that appellant-UIT launched a
scheme Vishwakarma Automobile Nagar for allotment of plots
through lottery to members of Automobile Dealers association.
The plaintiff applied for allotment of plot. The eligibility criteria
was that the person should be a member of Automobile Dealers
Association and should be indulged in business of automobile.
Plaintiff contended that he is indulged in the business of
automobile and has membership of Automobile Dealers
Association. He applied for allotment of a plot of a size of 20 X 40
Ft. and deposited 25,000/- as registration fee with application
form dated 05.10.1999.The UIT pointed out certain objections in
his application form, which were meted out, however, no allotment
was made. In that situation, plaintiff filed civil suit on 22.09.2000
seeking declaration that he is eligible for allotment and plot be
allotted to him in the said scheme.
The UIT opposed the civil suit contending that the plaintiff
does not fulfill the eligibility criteria as he has already one plot
having size 2130 Sq. Meters near Industrial Area, Kota.
The trail Court dismissed the plaintiff's suit vide judgment
dated 18.02.2012. Plaintiff assailed the judgment by way of first
appeal, and the first appellate court considered the material on
record and passed the impugned judgment.
Heard learned counsel for both parties and perused the
impugned judgment as also material available on record.
(3 of 5) [CSA-473/2016]
Counsel for appellant has argued that the plaintiff does not
fulfill the eligibility criteria to get allotment of plot in the
Vishwakarma Automobile Nagar Scheme as plaintiff is neither
indulge in the business of automobile nor is member of
Automobile Dealers Association. That apart plaintiff already
possess a plot having size 2130 Sq. Meters near Industrial Area,
Kota, therefore the first appellate court has committed illegality in
issuing a direction to allot the plot to the plaintiff.
Per contra, learned counsel for respondent-plaintiff submits
that plaintiff fulfills all the eligibility criteria to get allotment of plot
in the Vishwakarma Automobile Nagar Scheme. Even the UIT itself
issued letter dated 26.02.2002 to the plaintiff offering a plot
having size 20 X 40 Sq. Ft. and in the Vishwakarma Automobile
Nagar Scheme, plots having size of 20 X 40 Sq.Ft. are available.
However, the UIT offered only a plot size 10 X 10 Sq.Ft. in stead
of plot size 20 X 40 Sq.Ft. Learned counsel for respondent-plaintiff
submits that during pendency of present litigation, under the
interim orders of Court, plot No.236, in the Vishwakarma
Automobile Nagar Scheme, having size of 20 X 40 Sq.Ft. was
ordered to be kept reserved and the same was laying reserved by
the UIT. The first appellate court on appreciation of evidence on
record has held that plaintiff fulfills the eligibility criteria for
allotment of plot and accordingly has issued direction to allot the
plot, which was ordered to be kept reserved for allotment to the
plaintiff.
After having heard learned counsel for both parties, it is not
in dispute that the UIT, Kota launched a scheme in the name of
Vishwakarma Automobile Nagar Scheme for allotment of plots. It
is also not in dispute that the plaintiff submitted application for
(4 of 5) [CSA-473/2016]
allotment of plot. The first appellate court, on appreciation of
evidence on record, has observed that plaintiff fulfills the required
criteria for allotment of plot in the said scheme. It has also been
observed merely because plaintiff has one another plot in his
possession near Industrial Area, Kota, he may not be held
ineligible for allotment of plot in the Vishwakarma Automobile
Nagar Scheme as there is no such condition of allotment. Firstly
these are findings of fact, secondly it is an admitted position of
record that UIT itself issued a letter dated 26.02.2002 (Exhibit-6)
to the plaintiff to offer allotment of plot in the scheme having size
10 X 10 Sq. Ft. Thus, the UIT itself admits that the plaintiff is
eligible for the allotment. There is nothing on record to show that
merely because plaintiff has another plot, he becomes ineligible
for having allotment of plot in the present scheme. The plaintiff
has placed on record the original record of the UIT as Exhibit-7
whereby it reveals that the plot No.236 having size 20 X 40 Sq.Ft.
has been kept reserved under the interim orders of Court for
allotment of plot to the plaintiff, in case plaintiff succeeds in the
present suit.
The first appellate court, after appreciation of evidence on
record and considering the entire circumstances, has partially
decreed the plaintiff's suit vide impugned judgment dated
27.07.2016 in the manner as mentioned hereinabove.
This court does not find any illegality or perversity in
findings recorded by appellate court. Substantial question of law,
as proposed by the appellant and mentioned in memo of appeal
are essentially the questions of fact. For appreciation of such
question, re-appreciation of evidence is required, which is not
permissible within the scope of Section 100 CPC. It is no more res
(5 of 5) [CSA-473/2016]
integra that formulation/involvement of substantial question of law
is sine qua non to entertain the second appeal within the scope of
Section 100 CPC. Since no substantial question of law involved in
the present appeal, the same is not liable to be entertained.
Accordingly, the appeal is bereft of merits and is hereby
dismissed. There is no order as to costs.
Interim stay order dated 27.02.2017 stands vacated.
Stay application and any other pending application(s) are
also disposed of.
Record of the courts below be sent back forthwith.
(SUDESH BANSAL),J
TN/81
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