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2017 Supreme(Guj) 1061
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.G. SHAH, J.
Manubhai Bhaichanddas Patel & 1 - Petitioners
Versus
State of Gujarat & 3 - Respondents
Second Appeal No. 54 of 2000 With Civil Application No. 5303 and 5304 of 2002 in Civil Application No. 7098 of 2000 With Misc. Civil Application No. 949 of 2002.
Decided on : 07-04-2017.
Advocate Appeared:
For the Appellant :Mr. Mehul S. Shah, Senior Counsel With Mr. Yatin Soni, Advocate.
For the Respondent:Mr. P.K. Jani, Additional Advocate General With Ms. Ritu Guru, Assistant Government Pleader With Mr. Swapneshwar Gautam, AGP.
Important Point:
When there is a dispute between two departments of the government viz; Collector on one hand and Forest Department on the other hand, however, for such internal dispute between two departments, appellants lease holders cannot be saddled with a situation where their properties was seized and they were restrained from executing the activity as per lease agreement executed by the Collector himself.
Headnote:On Facts--- improper evaluation and relying upon a particular map to decide the lease--- trial court upheld the contention of petitioner while appellate court held in reverse thus cancelled the lease--- situation where on factual aspects, both the Courts' below i.e. Civil Court as well as Appellate Court have arrived at different conclusion.--- substantial question of law as framed: "Whether it is open to the Court to cancel the lease of the land not falling within the forest area on the ground that the lease holder has travelled beyond the lease _______ and committed a wrong in forest area."?--- primafacie, evidence on record i.e. impugned order that the Appellate Court has, for arriving at the conclusion of allowing the appeal, relied upon the documentary evidence which was either not proved at all or not properly proved and though it was not properly provided, it was accepted on record and relied upon.---held: it is not open for the Appellate Court to cancel the lease of the land not following within forest area only on the ground that the lease holder has travelled beyond the leased area and committed a wrong in forest area, more particularly, based upon a document which is created exparte by respondent alone and not proved on record in accordance with law.
Result: Petition Dismissed.
Mr. S.G. Shah, J.
Heard learned Senior Counsel Mr. Mehul S. Shah with Mr.Yatin Soni, learned advocate for the Appellants and learned Additional Advocate General Mr.P.K. Jani with Ms. Ritu Guru, learned Assistant Government Pleader for the Respondent/s. Perused the record of Second Appeal as well as Record & Proceedings of trial Court as well as appellate Court.
2. The Appellants herein are original Plaintiffs before the Civil Judge (Senior Division) of Banaskantha @ Palanpur in Regular Civil Suit No.79 of 1993. Such suit was decreed by judgment and order dated 31.7.1999 in following terms;
"The suit of the Plaintiffs is hereby decreed. Permanent injunction as sought below paragraph 8(1) is hereby granted. Further, the relief as prayed in paragraph 8(2) is also granted and it is hereby declared that the act of the defendant Nos. 2 and 3 to attach the truck of the plaintiff on 9.12.1992 was an illegal act. Further, Plaintiffs are entitled to recover an amount of deposit of Rs. 5,000/- from the defendants. Therefore, defendant Nos. 2 to 4 are hereby directed to pay back the amount of Rs. 5,000/- to the Plaintiffs. Further, defendants are hereby directed to pay Rs. 4,000/- by way of damages to the Plaintiffs.
Further, defendant Nos. 2 to 4 shall pay the cost of the suit to the Plaintiffs and shall bear their own cost of the suit. A decree be drawn accordingly.
So far as application below Exh.38 is concerned, defendant Nos.2 to 4 have committed breach of injunction. Therefore, application below Exh.38 is hereby granted and defendant Nos. 2 to 4 are liable to send in civil prison. Therefore, I pass an order to send them in civil prison for 7 days for committing breach of injunction of the order passed below Exh.5 by the present court. Hence, this application is also disposed off accordingly.
No order as to cost in respect of the present application."
3. Thereby, when relief was granted in terms of paragraph 8(1) and 8(2) in favour of the plaintiffs, reference to such prayer clause in the plaint is material to be referred and recollected here. Perusal of plaint at Exh.1 confirms that in paragraph 8(1), the Appellants - Plaintiffs have prayed for permanent injunction against the Respondent for restraining the Plaintiffs from excavating the land bearing survey Nos.51/1 and 51/2 admeasuring 4 Hectares and 55 RA, for which lease was granted in favour of the plaintiffs and also to restrain the Respondents from taking away the excavated material/stones in truck and also to restrain the Respondents from seizing all such material and vehicles.
4. In paragraph 8(2), the Appellants - Plaintiffs have prayed for declaration that the act of the Respondents to seize the truck of the Plaintiffs on 9.12.1992 be declared as illegal.
5. In addition to above prayers which was allowed by the trial Court, the Plaintiffs have also prayed in Paragraph 8(3) of the plaint to direct the Respondents to refund the amount of Rs.5,000/paid towards deposit and mesne profit as compensation to the tune of Rs.5,000/for not allowing to utilize the leased property since 9.12.1992. Such relief was also granted in favour of plaintiffs.
6. It is undisputed fact that Appellants - Plaintiffs have instituted such suit because they were allotted above referred land on lease by the Collector, Banaskantha @ Palanpur for 10 years from and on 8.4.1992. The leased land is situated at Village Rajkot of Dhanera Taluka in Banaskantha District. The leased agreement was executed between the Plaintiff No.1 and Respondent - Government at Collector Office, Banaskantha @ Palanpur on 8.5.1992. Similar lease agreement was executed in favour of plaintiff No. 2 also on 5.5.1992. Such lease was granted under Gujarat Gau Seva Rules, 1996 and maps of the land which was leased to the plaintiff were attached with agreement of lease. Such maps were certified by the Respondents and were drawn by District Inspector Land Records (For Short `DILR') for the purpose of showing the area of lease portion an
