Gujarat High Court
Gujarat Mineral Development ... vs Vinod Purshottam Solanki on 8 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023
undefined
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/-
==========================================================
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 ?
==========================================================
GUJARAT MINERAL DEVELOPMENT CORPORATION (G.M.D.C)
Versus
VINOD PURSHOTTAM SOLANKI
==========================================================
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
==========================================================
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. Page 1 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined
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 Page 2 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 3 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 4 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 5 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 6 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 7 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 8 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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.
Page 9 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023
NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined
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 Page 10 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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, Page 11 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 12 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 13 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 14 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 15 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 16 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 17 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 18 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 19 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 20 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 21 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 22 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 23 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 24 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 25 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 26 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 27 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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. Page 28 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023
NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 29 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 30 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 31 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 32 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 33 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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).Page 34 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023
NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 35 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 36 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023 NEUTRAL CITATION C/FA/4875/2008 CAV JUDGMENT DATED: 08/12/2023 undefined 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 Page 37 of 37 Downloaded on : Tue Dec 12 20:36:24 IST 2023