IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 196 of 2007. Reserved on: 28.2.2008. Date of decision: 1.03.2008. The Himachal Gram Vikas Udyog Sabha ….. Appellant Versus The State of H.P. & Ors. …. Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Bhupinder Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the respondents: Mr. J.S. Guleria, Law Officer. V.K. Ahuja, J. This is a Regular Second appeal under Section 100 C.P.C. filed by the appellant against the judgment and decree of the Court of learned District Judge, Kangra at Dharamshala, dated 16.1.2007, vide which he affirmed the findings of learned Civil Judge(Junior Division), Court No. 2 Dharamshala, dated 21.9.2004, dismissing the suit of the appellant for permanent injunction and in the alternative for possession. Briefly stated the facts of the case are that a perpetual lease for 99 years was created in favour of the plaintiff by defendant No. 3 in regard to Plot No. 1 measuring 1000 Sq. Mtr. in the Industrial Area Estate, Kangra. The plaintiff was to establish a unit and a lease deed was executed in between the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 plaintiff and defendants on 23.4.1979 which was signed by defendant No. 2 on behalf of Governor of H.P. The plaintiff did not start the industrial unit inspite of several letters written to him. The lease deed was cancelled by defendant No. 2 and the possession was taken from the plaintiff on 6.8.1991. The plaintiff by filing the present suit for declaration and injunction pleaded that the cancellation was wrongly made and the possession could have been taken only by filing a civil suit or after issuance of notice under Section 106 of Transfer of Property Act and since the possession was wrongly taken and the lease was cancelled illegally, he was entitled to the possession in the alternative. The plaintiff also challenged that the Director of Industries was not competent to cancel the allotment or to take back the possession since the agreement was entered in between the plaintiff and the Governor of the State. The suit was tried by the learned trial Court which came to the conclusion that the provisions of Section 106 of the Transfer of Property Act were not applicable. It also concluded that the possession was taken by the defendants after issuance of various notices to the plaintiff and after cancellation of the lease and the possession could have been taken under the terms and conditions of the lease deed. The learned trial Court also held that the Director of Industries was competent on behalf of the Governor to take action against the plaintiff and as such, the suit of the plaintiff was dismissed, which findings were affirmed by the learned first appellate Court. Heard. Two points were raised by the learned counsel for the appellant during the course of arguments. The first point 3 raised was that under the provisions of Section 106 of the Transfer of Property Act, no notice was issued since it was perpetual lease for a period of 99 years and could not have been cancelled and the only remedy to the defendants was to file a suit for possession. The second point raised was that the Director of Industries was not competent to take action as was pleaded in the plaint. Coming to the first point in regard to the applicability of Section 106 of the Transfer of Property Act, a perusal of the judgment of the learned trial Court shows that the learned trial Court had referred to the provisions of Section 106 of the Transfer of Property Act as well as the terms and conditions of the lease deed and had concluded on the basis of the evidence led before it that the provisions of Section 106 of the Transfer of Property Act were not applicable and the cancellation was made legally in accordance with the terms and conditions of the lease deed. The plaintiff admitted that he had to start the industrial unit within 90 days and production within 1½ years but he did not do so and there is evidence to show that various notices were issued to him and by one of the letters he had prayed for extension of time and the lease deed was cancelled vide notice Ext.AW1/B after several letters were issued to him which have been proved in evidence. A perusal of the judgment of the learned first appellate Court also shows that point was considered at length by the Court after referring to the evidence in this regard and those findings of the learned trial Court were affirmed. No such document or oral evidence was referred during the course of 4 arguments which was not considered by both the Courts below or there had been misreading of any evidence oral or documentary and as such, some substantial question of law was involved. Once there was nothing to show that there was any mis-reading or mis-appreciation of evidence and no such substantial question of law arises, there cannot be any reappraisal of the evidence by this Court once the evidence has been considered fully by both the Courts below. Therefore, there is no merit in the first contention putforth by the learned counsel for the appellant and since no substantial question of law arises, there cannot be any reappraisal of evidence by this Court in second appeal. Coming to the second question that the Director of Industries was not competent to take action since the lease deed was executed with the Governor, it is a common knowledge that the lease deeds are executed on behalf of the Governor by the Head of the Department concerned and neither the Governor is required to take action according to the terms and conditions of the lease deed, nor he is required to file civil suit and the action has to be taken on behalf of the Governor by the Head of the Department concerned according to the rules of the business. A perusal of the grounds of appeal filed in this case shows that no such specific plea was taken in the grounds of appeal that the Director of Industries was not competent to take action , though it was simply alleged in the grounds of appeal that there cannot have been any misuse of delegated powers by the Director of Industries who had no authority to cancel the lease deed. No specific plea was raised or substantiated as to how the Director of Industries was not competent to cancel the lease 5 deed or to exercise the powers. This plea was specifically taken in the plaint and a perusal of the judgment of the learned trial Court shows that it had referred to the documents Ext. D-12 Notification issued by the Governor delegating the powers about the cancellation of the lease deed and a reference was also made to documents Exts. D-12 to D-14 regarding the authority of allotment and cancellation of lease deed, which powers were delegated to the defendants. The learned trial Court had discussed the evidence in this regard in Para 18 of its judgment. There is nothing in the judgment of learned first appellate Court that this plea was specifically taken during the course of arguments or not. I have also gone through the grounds of appeal filed before the learned first appellate Court and there is nothing in the same to show that any such plea was taken as has now been taken. Therefore, there was no occasion for the first appellate Court specifically to consider the evidence or give its findings when this point appears to have been not agitated before the learned first appellate Court. Once this plea was not raised before the learned first appellate Court and the learned trial Court has discussed the evidence and there is nothing on record to show that as to which of the document was not considered by the learned trial Court in giving its findings in this regard or which of the document was wrongly appreciated by the learned trial Court and as such, no substantial question of law arises for reappraisal of the evidence in this regard to interfere with the findings recorded by the learned trial Court in this regard. From the above discussion, it is clear that no case is made out for reappraisal of the evidence as the evidence has 6 been discussed fully by both the Courts below in coming to its findings and as such, no case is made out for admission of the appeal, which is dismissed accordingly. Parties are left to bear their own costs. Record of the case be returned to both the Courts below. ( V.K. Ahuja ), March 01, 2008 Judge (BSS) 7