Dismissed

Sunil Kumar v. Nagar Nigam Kota

Rajasthan HC14 Feb 2024CSA/112/2016

Case brief

AI extract

What is this about?

In an S.B. Second Appeal under Section 100 CPC, the High Court of Rajasthan held that no substantial question of law arose. The court dismissed the appellant's challenge to the dismissal of a suit for declaration and injunction regarding a terminated license for business on government pavement, finding lower courts were correct.

What did the court decide?

The instant S.B. Second Appeal is dismissed.

Sunil Kumar Vs Nagar Nigam Kota — Landlord and Tenant | Rajasthan HC (2024)

¶1

[2024:RJ-JP:26513]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶3

S.B. Civil Second Appeal No. 112/2016

¶4

Sunil Kumar son of Shri Chandraprakash, resident of Ward No.14, Kotdi, Gordhanpura, Kota.

¶5

----Appellant

¶6

Versus

¶7

Nagar Nigam Kota through Mayor, Nagar Nigam, Kota (Raj.)

¶8

----Respondent

¶9

For Appellant(s)	: Mr. Pradeep	Mathur with
	Mr. Jitendra	Jain
For Respondent(s)	: None

¶10

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order

¶11

14/02/2024

¶12

Instant second appeal is preferred by appellant plaintiff, aggrieved from judgment dated 03.11.2015 in civil regular appeal No. 19/2014 passed by learned Additional District Judge No.2, Kota wherein appeal preferred under Section 96 of CPC aggrieved from judgment and decree dated 14.07.2014 in civil suit No.38/2010 was dismissed.

¶13

Learned counsel for appellant while relying upon judgment in case of State of Rajasthan Vs. Municipal Council 2003 RLW(RJ 1) (HC) submitted that Late Pannalal, grandfather of plaintiff, has obtained permission to carry business on 5x3 sq. feet land from defendant and since then he was carrying his own business but after death, the plaintiff has succeeded his business and he is continuously carrying on his business. He also submitted that at present Rs.150/- was deposited by the plaintiff as

[2024:RJ-JP:26513]

[CSA-112/2016]

(2 of 8)

rent/license fee to the defendant but defendant is not receiving rent since June, 2006 with ulterior motive to evict plaintiff from the suit property. He also submitted that the plaintiff is ready and willing to pay all arrears of rent/license fee to the defendant but defendant has sent a notice dated 10.08.2007 intimating termination of license. The plaintiff has challenged this notice and submitted that the defendant is trying to evict him in view of notice therefore the notice dated 10.08.2007 be declared as null and void and injunction be granted in favour of plaintiff to protect his original claim possession. He also submitted that the defendant has no right to evict plaintiff from the suit property unless he adopt process prescribed under the law. He also submitted that the trial court and appellate court had committed serious error while considering the case in favour of plaintiff. He also submitted that the defendant has to adopt process under Rajasthan Public Building Eviction of Unauthorized Occupant Act and till respondent defendant take steps under the said Act the plaintiff is entitled for protection. He also submitted that on similar analogy Hon’ble Supreme Court in case of The Corporation of

¶18

Calicut Vs. K.Sreenivasan (2002) 5 SCC 361 and Capt. B.V. Dsouza vs. Antonio Fausto Fernandes (1989) 3 SCC 574 has taken a view that the plaintiff cannot be evicted by adopting arbitrary method. He also submitted that the grounds raised by the appellant give rise to several substantial question of law as proposed in the memo of appeal therefore the appeal may be admitted for further consideration on merits.

[2024:RJ-JP:26513]

[CSA-112/2016]

(3 of 8)

Heard learned counsel for appellant and perused the record. Also perused the judgments as cited by learned counsel for appellant.

¶23

The facts giving rise to the instant appeal are that the plaintiff has filed a civil suit for declaration and perpetual injunction before the learned Civil Judge (Junior Division) North Kota stating that grandfather of plaintiff has obtained permission on 27.11.1961 to carry out business of snacks (fritters) and ice cream after affixing a structure on drainage. After death of his grandfather same was transferred in the name of plaintiff in the month of July. 1998. The plaintiff is regularly paying rent/license fee but while issuing letter dated 10.08.2007 received by the plaintiff on 14.08.2007 the plaintiff was asked to evict the suit property as his license was terminated. The plaintiff has claimed relief of declaration and also perpetual injunction.

¶24

The respondent has filed written statement denying the facts as stated by the plaintiff but asserted that disputed place is government land and pavement. The respondent has admitted that plaintiff is in possession as licensee. Further the defendant has claimed that plaintiff was afforded an opportunity of hearing in pursuant to notice dated 02.01.2007 on 08.01.2007. It was further claimed that the plaintiff has agreed to be evicted from the suit property.

¶25

Learned trial court had framed 5 issues and both the parties have led their evidence. Learned trial court has decided issue No.1 in favour of plaintiff but issue No.2 against the plaintiff. Further issue No.3 was decided in favour of defendant and as a result, dismissed the suit of plaintiff appellant. Aggrieved from aforesaid

[2024:RJ-JP:26513]

[CSA-112/2016]

(4 of 8)

an appeal was preferred by the appellant plaintiff and same was dismissed by the first appellate court hence, this second appeal.

¶30

In case of State of Rajasthan Vs. Municipal Council (supra), a full bench of this court has referred the landmark judgment of Hon’ble Supreme Court in case of Associated Hotels of India Ltd. Vs. R.N. Kapoor AIR 1955 SC 1262 wherein it was observed that to ascertain whether the documents created license or lease, the substance of document must be preferred to the form and real test as the intention of the parties whether they entitled to create lease or license.

¶31

In case of The Corporation of Calicut Vs. K.Sreenivasan (supra) it was held that the licensee does not acquire any interest in the property by virtue of grant of license in his favour in relation to any immovable property to once the authority to occupy and use the same is granted in favour by way of license, he continues to exercise that so long as the authority has not expired or has not been determined for any reason whatsoever. In case of Capt. B.V. Dsouza vs. Antonio Fausto Fernandes (supra) while relying upon judgment in case of Associated Hotels of India Ltd. Vs. R.N. Kapoor (supra) it was held that the case has to be decided on the basis of substance of document. 10. Herein this case, the admitted case of the plaintiff is that on drainage after affixing temporary structure a permission was obtained by grandfather of the plaintiff to carry on business in 1961 and after his death, plaintiff has acquired the license and he carried the business till his license was terminated on 10.08.2007. The plaintiff has not disclosed that he was afforded an opportunity of hearing on 08.01.2007. PW-1 in his cross-examination had

[2024:RJ-JP:26513]

[CSA-112/2016]

(5 of 8)

admitted that a notice for personal hearing was given to him and he appeared before the defendant for hearing wherein his statement was recorded. The only issue was for rehabilitation. The admission of PW-1 was for rehabilitation and not more than that. A perusal of cross-examination also made it clear that after opportunity of hearing to the plaintiff, the order dated 10.08.2007 was passed by the defendants. The plaintiff has not filed any document to establish that lease granted under the Municipal Law except provided under the Act and Rules no lease can be granted therefore this is not a case of lease. As regard to license is concerned, Ex.1 notice make it clear that after opportunity of hearing a license of the plaintiff was terminated.

¶36

The license was terminated in 2007 and since then we are after 17 years of termination. The period consumed during litigation is more than sufficient for the plaintiff to search for alternative premises.

¶37

Herein this case the plaintiff was afforded an opportunity of hearing and after opportunity of hearing his license was terminated. There is no document on record to specify terms in favour of plaintiff, which requires interpretation therefore the judgments as referred by learned counsel for appellant are not applicable in the instant case. This is a simple case of license on pavement and government drainage, granted without executing any document. Otherwise also no license to carry on business on pavement and government drainage can be granted by the Municipal Council. The pavements are meant for use by public at large and drainage is necessary to maintain basic civic amenities. The temporary license does not give any rise to individual to

(6 of 8)

[2024:RJ-JP:26513]

[CSA-112/2016]

occupy the place meant for purpose of drainage and pavement. In view of aforesaid, the trial court has rightly dismissed the suit of the plaintiff and so the appellate court. From the grounds raised by learned counsel for appellant, no substantial question of law arises. Unless the grounds give rise to substantial question of law, second appeal cannot be admitted for consideration.

¶42

Having considered the material available on record, no substantial question arises from the grounds raised by appellant plaintiff.

¶43

In order to determine the substantial question of law we have to consider the test laid down by the Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314 Hon’ble Supreme Court has observed has observed as under:

¶44

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

¶45

15. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC

¶46

405 , Hon’ble Supreme Court explained the purpose of framing question of law in following manner:

¶47

“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.

(7 of 8)

[2024:RJ-JP:26513]

[CSA-112/2016]

b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon.

¶52

c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

¶53

Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised

¶54

principle relating to Section 100 of CPC in following words:-

¶55

“(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

¶56

Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) referred to the judgments and observed that the general rule is that the High Court will not interfere with the concurrent findings of the Courts below but same is not an absolute rule. The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

¶57

Herein, we do not find anything wrong in the judgment of the first appellate court in an appeal passed under Section 96 of CPC. The appellants herein have challenged the judgment of first appellate court under Section 100 of CPC and there are no grounds on which we can conclude that the trial court or the first

(8 of 8)

[2024:RJ-JP:26513]

[CSA-112/2016]

appellate court has committed serious error while adjudicating the issue on hand.

¶62