Gujarat High Court
State vs Kalika on 10 March, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SA/277/2009 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 277 of 2009
With
CIVIL
APPLICATION No. 11274 of 2009
In
SECOND
APPEAL No. 277 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
KALIKA
TILES INDUSTRIES - Defendant(s)
=========================================================
Appearance
:
MR
NIRAJ SONI ASST.GOVERNMENT PLEADER
for
Appellant(s) : 1,
MS NISHA M THAKORE for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 10/03/2010
ORAL
JUDGMENT
ADMIT.
Ms.Nisha Thakore, learned waives the service of notice of rule on behalf of the respondent - original plaintiff.
With the consent of the learned advocates appearing on behalf of the respective parties and in the facts and circumstances of the case, present Second Appeal is taken up for final hearing today.
With the consent of the learned advocates appearing on behalf of the respective parties, Paper Book and Printing of the Second Appeal is hereby dispensed with.
Present Second Appeal under sec.100 of the Code of Civil Procedure has been preferred by the appellant State of Gujarat to quash and set aside the impugned judgement and decree dtd.27/7/1995 passed by the learned Civil Judge (SD), Morbi in Special Civil Suit No.69 of 1988, which came to be confirmed by the learned appellate court by the impugned judgement and decree dtd.31/3/2009 passed by the learned Presiding Officer, Fast Track Court, Morbi in Regular Civil Appeal No.66 of 2005.
The plaintiff partnership firm applied for grant of 2 Gunthas of land being Government Waste land at village Rajpar for the purpose of manufacturing tiles etc. from the Government. The request of the original plaintiff came to be considered favourably and the District Collector, Rajkot vide order dtd.9/9/1981 granted the said land to the plaintiff on certain terms and conditions inclusive of the condition not to sell, mortgage or transfer and/or alienate the same to any other person and in case of such a sale, mortgage or transfer, the State Government would have a right over 50% of the unearned profit. On the same terms and conditions and on acceptance of the same terms and conditions, the possession of the land was handed over to the plaintiff. That thereafter, as it was found that there was breach of condition nos.5 and 8 of the order of grant, the Collector, Rajkot issued notices in the year 1984 claiming Rs.24,888 being 50% of the unearned profit. That after giving an opportunity to the plaintiff, the District Collector passed final order directing the plaintiff to pay an amount of Rs.24,888 towards 50% unearned profit by holding that there is breach of condition nos.5 and 8 of the order of grant. The said order came to be passed on 20/12/1984. Being aggrieved by and dissatisfied with the order passed by the Collector, Rajkot dtd.20/12/1984 directing the plaintiff to pay/deposit Rs.24,888 towards 50% of the unearned profit on the ground that there is breach of condition Nos.5 and 8 of the order of grant, the plaintiff preferred Revision Application before the Secretary (Appeals), Revenue Department, State of Gujarat who dismissed the said Revision Application. That thereafter the plaintiff preferred suit in question being Regular Civil Suit 69 of 1988 in the court of learned Civil Judge (SD), Morbi for a declaration that the show cause notice dtd.31/5/1984 issued by the Collector, Rajkot and the final decision given by the District Collector, Rajkot and the decision given by the Special Secretary, Ahmedabad dtd.28/10/1985 directing the plaintiff to pay/deposit an amount of Rs.24,888 towards unearned profit. That the condition imposed in respect of transfer at the time of granting the suit land to the plaintiff be declared illegal and void. It was further prayer prayed to issue injunction to the Collector, Rajkot restraining him to recover Rs.24,888 as per the final order passed by the Collector, Rajkot dtd.20/12/1984 confirmed by the Secretary (Appeals) vide order dtd.28/10/1985. That the learned trial court by the judgement and decree dtd.27/7/1995 allowed the suit granting declaration as prayed for and also declared that the condition Nos.5 and 7 in the order of the District Collector, Rajkot granting land in favour of the plaintiff as illegal and void and consequently, permanently restrain the Collector, Rajkot from recovering the amount of Rs.24,888. Being aggrieved y and dissatisfied with the judgement and decree passed by the learned trial court, the appellant herein original defendant - State of Gujarat preferred Regular Civil Appeal No. 66 of 2005 before the District Court, Rajkot, which came to be heard by the learned Presiding Officer, and Fast Track Court, Morbi and by his impugned judgement and order dtd.31/3/2009 has dismissed the said appeal confirming the judgement and order passed by the learned trial court. Being aggrieved by and dissatisfied with the judgement and decree passed by both the courts below, the appellant herein original defendant has preferred the present Second Appeal under sec.100 of the Code of Civil Procedure.
The following substantial questions of law arise and framed for the purpose of determination of the present Second Appeal by this Court:-
The suit filed by the present respondent being Regular Civil Suit 69 of 1988 was maintainable?
Whether in the facts and circumstances of the case, the order of the District Collector, Rajkot dtd.9/9/1981 decision taken in purported exercise of statutory power in public interest, acting reasonably and good faith, is open to court's interference?
Whether the appellant has committed any illegality which could have been a subject matter of challenge?
Whether the respondent was right in violating the condition no.6 of the grant order which was produced at Ex.49?
Whether the opponent was right in violating the provision of section 42(c) of the Indian Partnership Act?
Mr.Niraj Soni, learned Assistant Government Pleader appearing on behalf of the appellant has vehemently submitted that the judgement and decree passed by both the courts below, more particularly the judgement and decree passed by the learned trial court is without jurisdiction and hit by sec.11 of the Revenue Jurisdiction Act. It is submitted that even otherwise in the facts and circumstances of the case and when the plaintiff accepted all the terms and conditions by order of grant granting the land in favour of the plaintiff, it was not open for the plaintiff subsequently to challenge the same, more particularly after service of notice by the Dy.Collector with respect to breach of condition Nos.5 and 8 of the order of grant and therefore, both the courts below have materially erred in quashing and setting aside condition Nos.5 and 8 of the order of grant/allotment in favour of the plaintiff and subsequently to quash and set aside the order passed by the Collector, confirmed by the Secretary (Appeals), directing the plaintiff to pay an amount of Rs.24,888 towards unearned profit on condition of violation of breach of condition nos.5 and 8 of the order of allotment.
It is also submitted that both the courts below ought to have appreciated that even the suit was filed by the plaintiff after a period of almost two years from the date of decision of the Secretary (Appeals) in revision application and therefore also the suit was barred under the provisions of the Revenue Jurisdiction Act.
Submitting accordingly, it is requested to allow the present Second Appeal.
The appeal is opposed by Ms.Nisha Thakore, learned advocate appearing on behalf of the respondent - original plaintiff. It is submitted that there are concurrent findings of facts given by both the courts below and the same are on appreciation of evidence and therefore, it is requested not to interfere with the same. While exercising power under sec.100 of the Code of Civil Procedure. It is submitted that in the facts and circumstances of the case, both the courts below have not erred in allowing the suit by quashing and setting aside condition nos.5 and 8 of the order of grant. By making above submissions, it is requested to dismiss the present Second Appeal.
Heard the learned advocates appearing on behalf of th respective parties at length and considered the evidences produced on record.
At the outset, it is required to be noted that it is the plaintiff who requested to grant 2 Gunthas of land from Government Waste land for the purpose of manufacturing tiles, which came to be considered favourably by the Government and by order of the District Collector, Rajkot dtd.9/9/1981, the same was granted in favour of the plaintiff on certain terms and conditions inclusive of condition Nos.5 and 8. Condition Nos.5 and 8 reads as follows:-
Condition No.5:- That in the case of sale, mortgage or sale in the event of failure to lose mortgage if the land under the grant be sold in that event the Govt. would have right over the 50% of unearned profit. It was also provided in the said condition that if the land under the grant be proposed to use for the non-industrial purpose in that case, pre-permission of the govt. was to be obtained and in that event the Govt. was entitled to recover 75% of the amount after deduction of institution referred in Govt. Resolution of Revenue Dept. bearing no.LND-3969-27273 dtd.06/08/70.
Condition No.8:- That the plaintiff could not transfer the land without pre-permission of the Dept.Collector, and in the case of transfer or assignment of the land under the grant District Collector, would be entitled to determined unearned profit and to recover the same.
It is to be noted that on accepting the said conditions, the Government Waste land was allotted to the plaintiff and the plaintiff was handed over the possession of the said land. The plaintiff never challenged any of the terms and conditions of the order of allotment dtd.9/9/1981. That thereafter, there was a change in the Partnership Firm and it was found that that there is a breach of condition Nos.5 and 8 of the order of allotment dtd.9/9/1981 and therefore, the plaintiff was served with the show cause notice dtd.31/5/1984 by the Distinct Collector, Rajkot calling upon the plaintiff to pay an amount of respondents.z24,888 towards unearned profit alleging that there is a breach of condition Nos.5 and 8 of the order of allotment/grant. That after considering the reply submitted by the plaintiff, the Collector, Rajkot passed final order directing the plaintiff to pay an amount of Rs.24,888 towards unearned profit, which came to be confirmed by the Special Secretary (Appeals) vide judgement and order dtd.28/10/1985 in exercise of revisional jurisdiction. Thereafter, after a period of almost three years of the date of the order passed by the Special Secretary (Appeals), the plaintiff instituted Special Civil Suit No.69 of 1988 for a declaration to declare the aforesaid order passed by the Collector, as well as the Secretary (Appeals) as illegal and null and void and also challenging the terms and conditions, more particularly condition Nos.5 and 8, of the order of grant dtd.9/9/1981. Unfortunately the learned trial court quashed and set aside the condition Nos.5 and 8 of the order of grant dtd.9/9/1981 and consequently, quashed and set aside the order passed by the Collector, confirmed by the Special Secretary (Appeals). Both the courts below ought to have appreciated that once the plaintiff accepted all the terms and conditions of the order of grant dtd.99/1981 and did not challenge the conditions till the show cause notice issued by the Collector, Rajkot and/or the order passed by the Collector, Rajkot in the year 1984, it was not for the plaintiff subsequently to challenge the said terms and conditions. In the aforesaid circumstances, both the courts have materially erred in quashing and setting aside condition Nos.5 and 8 of the order of grant dtd.9/9/1981 which were accepted by the plaintiff at the time of allotment. If the plaintiff would not have accepted the said terms and conditions and/or any of the terms and conditions of the order of grant dtd.9/9/1981, the Government and/or Collector would not have even allotted/granted the land in favour of the plaintiff and would not have handed over the possession of the said land to the plaintiff. Under the circumstances, on facts, both the courts at least have materially erred in quashing and setting aside condition Nos.5 and 8 of the order of grant dtd.9/9/1981 and consequently, in quashing and setting aside the order passed by the Collector, Rajkot directing the plaintiff to deposit an amount of Rs.24,888 towards unearned profit. Even otherwise, considering the fact that even the suit was field after a period of approximately three years from the date of the order passed by the Secretary (Appeals), even the said suit was barred under sec.11 of the Revenue Jurisdiction Act. The aforesaid aspect has also not been properly dealt with and considered by both the courts below.
In view of the above and for the reasons stated above, present Second Appeal succeeds. The impugned judgement and decree dtd.27/7/1995 passed by the learned Civil Judge (SD), Morbi in Special Civil Suit No.69 of 1988 as well as the impugned judgement and decree dtd.31/3/2009 passed by the learned Presiding Officer, Fast Track Court, Morbi in Regular Civil Appeal No.66 of 2005 are hereby quashed and set aside. In view of disposal of the main Second Appeal, no order in the Civil Application for stay and the same is also accordingly disposed of.
[M.R. SHAH, J.] rafik Top