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2007 Supreme(Guj) 388
Gujarat High Court
Judgename :MS.R.M.DOSHIT
MADHAVDAS DAMODAR AND CO. - Appellant
Versus
STATE OF GUJARAT - Respondent
CIVIL APPLICATION 3250 Of 2007
Decided On : 07/03/2007
A judgment rejecting an appeal without considering the contentions raised cannot be sustained.
Headnote:
Appeal - Land Grant Conditions - The court found that the lower court's rejection of the appeal was perfunctory and did not consider the contentions raised by the appellant firm. The judgment and order of the lower court were quashed and set aside, and the case was remanded for hearing and decision afresh in accordance with the law.
Fact of the Case:
The appellant firm was granted land for establishing a Ginning factory with a condition not to divide or sell the land without permission. The firm took in new partners without permission, leading to a case for breach of condition and confiscation of the land by the State Government. The appellant firm's appeal against the confiscation was rejected by the lower courts.
Finding of the Court:
The court found that the lower court's rejection of the appeal was perfunctory and did not consider the contentions raised by the appellant firm.
Issues: The main issue was the rejection of the appellant firm's appeal without proper consideration of their contentions.
Ratio Decidendi: The court held that a judgment rejecting an appeal without considering the contentions raised cannot be sustained.
Final Decision: The judgment and order of the lower court were quashed and set aside, and the case was remanded for hearing and decision afresh in accordance with the law.
( 2 ) THE appellant, plaintiff in Regular Civil Suit No. 445 of 1998, has preferred the present Second Appeal u/s. 100 C. P. C. against the Judgment and order dated 9th August, 2006 passed by the Additional District Judge and Fast Track Court, Junagadh in Regular Civil Appeal No. 87 of 1998.
( 3 ) IT appears that by order dated 5th July, 1971 made by the District Collector, Junagadh, the appellant " firm was given land admeasuring 33880 sq. yards at Manavadar for establishing a Ginning factory. One of the conditions of the said grant was that the grantee shall not divide the land in sub-plots or sale the land or the sub-plots without the permission of the State Government. In the year 1975 the partnership firm took in some new partners. This was treated by the Deputy Collector as breach of aforesaid condition No. 4. A case for breach of condition was registered against the appellant " firm. By order dated 8th February, 1985, made by the Deputy Collector, Porbandar, the appellant was held to be guilty of breach of aforesaid condition No. 4 and the land was ordered to be confiscated to the State Government. The appellant preferred Appeal before the District Collector, Junagadh. By order dated 15th November, 1985 the District Collector held that taking new partners by the appellant " firm would not amount to the breach of condition No. 4. Nevertheless as new partners were taken without permission of the State Government, though the District Collector set aside the order of confiscation made by the Deputy Collector, the District Collector imposed penalty upon the appellant firm under clause : 14 of the terms and conditions of the grant. The said order has been confirmed by the State Government on 20th May, 1988 in Revision Application preferred before it. The said order of the State Government was challenged by the appellant firm before the Civil Judge (SD), Junagadh in Regular Civil Suit No. 445 of 1988. The said Suit came to be dismissed by the Judgment and order dated 21st July, 1988. The said Judgment dated 21st July, 1988 has been confirmed by the lower Appellate Court vide order dated 9th October, 2006 passed in Regular Civil Appeal No. 87 of 1998. Therefore, the present Second Appeal.
( 4 ) MR. Desai has submitted that the learned Fast Track Judge has materially erred in rejecting the Appeal without recording or deciding the contentions raised in Appeal and without assigning any reason. All that the learned Fast Track Judge has said is that the order of the learned Civil Judge was not illegal.
( 5 ) THIS Court (Coram : R. S. Garg, J.) had on 1st March, 2007 ordered Notice to issue upon the respondents in following terms :
"issue Notice to the respondents to show cause why the Appeal be not admitted and heard finally on the following substantial question of law : whether on the facts and in the circumstances of the case, the judgment of the first Appellate Court can be accepted to be a legal and valid judgment when the same does not refer to the pleadings and the arguments raised by the parties, nor does it take into consideration the legal position, but, simply observes that the order passed by the Revenue Authorities are just and proper. "
( 6 ) IT is however, made clear that if on this question of law the appeal is not finally disposed of, then the learned counsel for the appellant may be heard in support of the appeal on other questions.
( 7 ) ALSO issue NOTICE of Civil Application No. 3250 of 2007, as an interim measure, it is hereby directed that until further orders from this Court, the parties shall maintain status-quo in relation to the land, as it obtains today.
( 8 ) INSPITE of receipt of the aforesaid notice for final hearing the respondents have not entered appearance.
( 9 ) I am in agreement with Mr. Desai. The approach of the learned Fast Track Judge in rejecting the appeal preferred by the a
