Mahesh Chandra vs Union of India (UOI) and Others

V.K. Shukla, J.—Present second appeal has been filed against the judgment and decree dated 23.03.2005 passed by Additional District judge/E.C. Act, Buduan in Civil Appeal No. 3 of 1998, affirming the judgment and decree dated 23.05.1998 passed by Additional Civil Judge (Senior Divison), Budaun in Original suit No. 88 of 1981, Mahesh Chandra v. Union of India and Ors.

Brief background of the case is that the plaintiff-appellant filed original suit No. 88 of 1991, contending therein that he was permanent resident of Kasba Wajirganj, Tehsil Bisauli, Paragan Satasi, District Buduan and had got agricultural land situated in the said area, and for the first time in the year 1975 for the purposes of cultivation of opium licence was granted to him and he was also appointed as Lambardar. In the year 1978-79, his brother Harish Chandra was appointed as Lambardar of Kasba Wajirganj, and in the year 1980-81, Harish Chandra was given licence for cultivation of opium in 50 Hectares of land. The plaintiff has mentioned that the then Opium Officer on 24.10.1980 after appending his signatures made recommendations for extra cultivation of opium and it was conveyed that permission would be accorded to Harish Chandra for carrying out cultivation of extra opium and further for regularising cultivation of opium details were given. Thereafter survey was conducted and it was found that the opium had been cultivated in excess than the prescribed limit and in this regard complaint had been made and proceedings were undertaken for cancellation of the licence. The plaintiff-appellant has mentioned that the entire proceedings were collusive and the excess opium which had been received, was from the house of his brother, for which had been given permission, and in this background his licence could not have been cancelled, as such injunction was prayed for.

The claim set up by the plaintiff-appellant was contested and it was contended that excess amount of opium which had been recovered, was illegally cultivated, and further the documents were manipulated and at no point of time permission was accorded for cultivating extra opium than the prescribed limit. It has been stated that the raiding party took 171 Kg. opium from the plaintiff and 70 Kg. from his brother. As the opium had been illegally cultivated over and above the prescribed limit, decision was taken to cancel the licence. It was also found that the quality of opium produced by the plaintiff was of inferior quality.

On the basis of the pleadings of the parties, in all, 8 issues were framed. From both the sides oral as well as documentary evidence was led and thereafter the trial court dismissed the suit. Civil appeal filed against the said judgment and order has also been dismissed. At this juncture present second appeal has been filed.

Sri Sidharth Verma, Advocate, appearing on behalf of the appellant, contended with vehemence that substantial question of law involved in the present case is that licence in question of appellant could not have been cancelled, as there was provision of renewal, and further for the act of Harsih Chand, the plaintiff-appellant could not have been made responsible, as such judgment and decree, on account of said substantial questions of law being involved, the present second appeal deserves to be allowed.

Countering the said submission, it has been contended on behalf of the defendant-respondents that in the present case categorical finding of fact has been returned that the opium which was produced by the plaintiff-appellant was of inferior quality than the quality prescribed, and further the facts and circumstances of the case clearly demonstrated that there was no partition inter se both the brothers and both the brothers were in hand in gloves of each other in carrying out the illegal cultivation activity of opium. The finding of fact recorded on this score cannot be said to be perverse or arbitrary from any point of view, and there being no substantial question of law involved, the finding of fact return being pure finding of fact, the second appeal is liable to be dismissed.

After the respective arguments have been advanced, factual position which emerges in the present case is that the plaintiff-appellant was engaged in cultivation of opium since 1975, and his brother Harish Chandra was appointed as Lambardar in the year 1978-79, and was given permission to carry out cultivation of opium in 50 hectare of land in 1980-81. Plaintiff-appellant''s specific case has been that on 24.10.1980 he had received a slip, wherein it was written that Harish Chandra would be allowed to carry on cultivation activity of opium in much more area than the area which was sanctioned. This paper dated 24.10.1980 has been made foundation and basis by the plaintiff and his brother Harish Chandra for carrying out cultivation activity of opium more than the prescribed limit. The validity of document dated 24.10.1980 has been examined at great length by both the courts below, and it has been found that the said document in question has been found forged, fabricated and manufactured only for the purposes of the case in order to show and suggest that his brother was accorded permission by the then Opium Officer to carry out cultivation activity of opium much more than the prescribed limit which had been sanctioned. The most surprising feature of the case is that the said document in question was meant for his brother Harish Chandra to carry out cultivation activity, but it was handed over to the plaintiff, and the said document in question has been found to be ingenuine, and the theory which has been set up has also been found to be ingenuine theory. The theory set up by the plaintiff has not been found to be proved, and to the contrary, finding of fact has been returned that excess opium was found from the brother of the plaintiff-appellant, and the opium which was found was of inferior quality.

The theory of partition inter se both the brothers has been considered at great length, and the said theory did not inspire confidence, inasmuch as there was no partition ever acted upon revenue papers as alleged, and even the partition deed, which had been produced had not been found credible on the basis of overall assessment of evidence adduced by plaintiff himself. In the revenue records, the names of both the brothers continued to remain recorded. Cogent reasons have been given by the courts below, as to why the theory of partition was not acceptable and it has been mentioned that all such theories were set up only for the purposes of the case in order to escape the liability of cancellation of licence. Said theories are belied from the fact that permission to carry out cultivation activity of extra opium was handed over to the plaintiff-appellant himself. Once theory of partition has not been accepted and cogent reasons have been given for the same. In this background, one without there being valid licence, opium has been cultivated in excess of the prescribed limit, then there was no error in the order cancelling the licence.

There is one more reason assigned for cancellation of licence and that is the product which was cultivated by the plaintiff was sent to the laboratory for testing its quality, and on examination, it was found that the same was not of the quality, which ought to have happened. In the facts of the case, once theory of partition has not been accepted, quality of opium has been found to be inferior, then the decision taken to cancel the licence cannot be faulted.

Learned Counsel for the plaintiff-appellant has placed reliance on the following judgment of Hon''ble Apex court in case of D. Nataraja Mudaliar Vs. The State Transport Authority, Madras, and in the case of Raj Restaurant and Another Vs. Municipal Corporation of Delhi, that renewal of license was their right and license could not have been canceled. Said judgments will not come to rescue of the plaintiff-appellant for the simple reason that here convincing reasons are there, which outweighed the renewal and impelled the authority to pass the order of cancellation. In the present case, there has been material and based on the same decision has been taken to cancel the licence for cultivation of opium.

Once suit in question has been decreed on factual assessment of the evidence, then it can not be said that in the present case any substantial question of law arises for consideration of this Court. Hon''ble Apex Court in the case of P. Chandrasekharan and Others Vs. S. Kanakarajan and Others, and Ors. and Kashmir Singh v. Harnam Singh and Anr. 2008 (3) AWC 2323(SC) has clearly ruled that when in the fact of case substantial question of law arises, then only interference at the level of High Court is feasible. Here no substantial question of law has arisen, as courts below have not ignored material evidence nor have accepted any in admissible evidence nor have drawn any wrong inferences by placing wrong burden. The decision is based on appreciation of evidence and taking as whole, the view which has been taken, being supported by oral as well as documentary evidence, as such no substantial question of law arises.

Consequently, present second appeal is dismissed.