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Supreme Court of India
State Of Goa vs Narayan V. Gaonkar . on 4 March, 2020Author: Ashok Bhushan
Bench: Ashok Bhushan, Navin Sinha
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1866 OF 2020
(arising out of SLP (C) No. 19683 of 2012)
STATE OF GOA …APPELLANT(S)
VERSUS
NARAYAN V. GAONKAR & ORS. …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed by the State of Goa
questioning judgment of High Court of Bombay at Goa
dated 30.06.2011 dismissing the First Appeal No. 115
of 2001 filed by the appellant. The First Appeal
No.115 of 2001 was filed by State of Goa through the
Secretary, Forest Department; the Collector South
Sub-Division, Margao, Goa; the Director of Survey &
Settlement Officer, Panaji, Goa and the Chief
Signature Not Verified
Secretary, Panaji, Goa challenging the judgment and
Digitally signed by
MEENAKSHI KOHLI
Date: 2020.03.04
16:36:56 IST
Reason:
order of the learned Civil Judge dated 23.04.2001
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dismissing the Civil Suit No. 64 of 1995 filed by the
plaintiffs-respondents 1 to 9 as well as the counter
claim filed by defendants- appellant.
2. The brief facts of the case necessary to be noted
for deciding this appeal are:
2.1 Special Civil Suit No. 64 of 1995 was filed
by Shri Narayan V. Gaonkar, Shri Shivram V.
Gaonkar and Shri Rama S.F. Dessai in the
Court of Civil Judge, Senior Division at
Quepem praying for following: –
“In the aforesaid
circumstances, it is prayed to
your honour, to direct the survey
authorities to delete the name of
“Forest Department” from the
survey entry No.11/1 of the
village Sulcorna from “Name of
the Occupant” column of survey
Form No.I & XIV and to declare
the plaintiffs as the exclusive
owners of the property bearing
survey No.11/1 known as “CONDA
MALL” or “BINDANGAL” or “BINDAN
MOLL” or “CARIA MOLL” of Village
Sulcorna of Taluka Quepem.”
2.2 In the Suit, the Secretary, Forest
Department, Government of Goa; the Collector
South Sub-Division, Margao, Goa; the Director
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of Survey & Settlement Officer, Survey of
Land Records, Panaji, Goa and the Chief
Secretary, Government of Goa, Panaji, Goa
were defendant Nos. 1 to 4. A common written
statement-cum-counter claim was filed by all
the defendants refuting the claim of the
plaintiffs. The defendants claimed that
entire suit property under Survey No.11/1 of
village Sulcorna of Quepem Taluka,
admeasuring an area of 23,04,500 sq. mtrs. is
in possession and belongs to the Forest
Department and as such the name of the Forest
Department has been rightly recorded in
occupant’s column in said Survey No.11/1 and
the plaintiffs nor any person have any right
over the suit property.
2.3 The plaintiffs claim that they are owners in
possession of a landed property known as
CONDA MOLL or BINDIGAL or BINDAN MOLL,
situated at Sulcorna Village in Quepem
Taluka, Goa was disputed. Defendant’s
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pleaded that entire plantation existing there
are planted and enjoyed by the Forest
Department. It was pleaded that suit
property is a forest property of the Forest
Department vide Notification published in the
Official Gazette “Repartieao de Femente”
dated 11.01.1951.
2.4 In the counter claim, it was pleaded that
plaintiffs have been wrongly recorded as co-
occupants in survey No.11/1 of Village
Sulcorna, Taluka Quepem, which is owned,
enjoyed and in possession of the defendant
No.1 – Forest Department for the last many
years and reference to the Notification dated
11.01.1951 was made. In the counter claim,
following prayers were made by the defendants
in paragraph 17:-
“17. In the circumstances, the
Defendants pray:
(a) That by a decree in the
nature of direction, the
survey authority be directed
to delete the names of the
plaintiffs from the
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occupant’s column in respect
of survey No.11/1, Sulcorna
Village of Quepem Taluka.
(b) For any other reliefs in the
circumstances of the case may
require.”
2.5 Written statement to the counter claim was
also filed by the plaintiffs claiming that
they are in exclusive possession of Survey
No.11/1 and the name of the Forest Department
has been wrongly recorded as co-occupants.
2.6 The learned Civil Judge framed two issues to
the following effect:-
1) Whether the plaintiffs prove
that they are owners in
possession of the suit property
as described in paragraph 1 of
the plaint?
2) Whether the defendants prove
that the plaintiffs name have
been wrongly recorded as co-
occupant in the property
surveyed under No.11/1 of
Village Sulcorna and as such
their names may be deleted from
the occupant’s column of Survey
No.11/1?
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2.7 While answering Issue No.1, Civil Judge held
that plaintiffs have failed to prove that
they are owners of the suit property,
however, Civil Judge upheld the plaintiffs’
possession. Issue No.2 was answered against
the defendant. A First Appeal was filed by
the defendants in the High Court praying that
judgment of the learned Civil Judge be
quashed and set aside to the extent that
learned Civil Judge held that respondents
(plaintiffs) were in possession and the
judgment insofar as it dismissed the counter
claim of the appellants, it was prayed that
the High Court may delete the name of the
respondents in occupant column in Form Nos.I
& XIV and also hold that respondents
(plaintiffs) are not in possession of the
suit land.
2.8 No appeal was filed by the plaintiffs against
the judgment of the learned Civil Judge. The
High Court dismissed the appeal of the
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appellants while observing that trial court
has rightly rejected the plaintiffs’ prayer
for title and also dismissed the defendants-
appellants counter claim that they are owners
of the property. The High Court, thus,
affirmed the judgment of the learned Civil
Judge. Aggrieved with the judgment of the
High Court, this appeal has been filed by the
State of Goa.
3. This Court on 05.07.2012 passed following order:-
“Issue notice on the application for
condonation of delay as well as on the
special leave petition.
However, the petitioner is directed to
produce the relevant records to show that
the property in question is a forest
land.”
4. In pursuance of the order of this Court dated
05.07.2012, the appellants filed an affidavit dated
17.08.2012 bringing on record Form Nos. I & XIV dated
13.07.2012. The Notification dated 11.01.1951
published in the Government Gazette was also brought
on record. A Mining Lease granted by Government of
Panaji, Goa dated 09.03.1998 has also been brought on
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record where Mining Lease of an area of 51 hectares
in Survey No.2 of Village Quepem and Survey No.11 of
Village Sulcorna was granted by State of Goa.
5. An I.A. No. 187381 of 2019 was filed by the
appellant seeking permission to file additional
documents, i.e., Annexures 1 to 5 to the application.
This Court by order dated 10.12.2019 allowed the
application and permitted the respondents to file a
reply to the application and the documents. On
10.12.2019, following order was passed by this
Court:-
“We find sufficient grounds to take
additional documents on record.
Application is allowed.
Let the counsel for the respondents
file a reply to the application and the
documents, which have brought on the
record, within four weeks.
Let records of the Trial Court be also
summoned. Registry to take appropriate
steps.
List on 28.01.2020.”
6. By the above order, the record of the trial court
was also summoned, which was duly received by this
Court and was perused by the Court. In pursuance of
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the order dated 10.12.2019, counter reply affidavit
in reply to the application have been filed by the
respondents dated 10.01.2020.
7. We have heard Ms. Madhavi Divan, learned ASG for
the appellant and Shri Carlos A. Fereira, learned
counsel for the respondents.
8. Learned counsel for the appellants in support of
the appeal submits that the trial court having
rejected the claim of the plaintiffs of ownership and
the plaintiffs having not filed any appeal, the
findings that they are not the owner of Survey
No.11/1 has become final and no right or title can be
claimed with regard to Survey No.11/1 by the
plaintiffs. It is submitted that by Gazette
Notification dated 11.01.1951 published in the
Government Gazette by the then Government of Goa the
description of the National Forests in District Goa
was published wherein in Village Sulcorna forest was
declared and published. It is submitted that the
additional affidavit which have been brought on the
record clearly indicate that according to the Goa,
Daman and Diu Land Revenue Code, 1968 and Rules
framed therein, when land survey was made with
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regard to Survey No.11 of area 230.54 hectares, name
of Forest Department only was recorded. A complaint
was submitted by Vishnu Shivram Gaonkar, one of the
plaintiffs to the Mamlatdar complaining that land
from Survey No.11 are recorded in the adjacent area
in the name of the Forest Department. It was claimed
that land does not belong to the Forest Department
but belongs to the applicant. Request was made to
conduct a survey again and hand over applicant’s land
to them. On the complaint filed by the plaintiff
Vishnu Shivram Gaonkar, Dispute Case No.3, Sulcorna
was registered and notice was issued to Vishnu
Shivram Gaonkar to appear on 20.10.1975 on which
date, he appeared before the Mamladatar and withdrew
his application dated 07.08.1975. It is submitted
that despite the withdrawal of the application by
Vishnu Shivram Gaonkar in Form III, name of Vishnu
Shivram Gaonkar, Shri Narayan Vishnu Gaonkar and Shri
Rama S.F. Dessai were added alongwith the Forest
Department referring to Dispute Case No.3. It is
submitted that when the complaint was withdrawn by
the plaintiff, there was no occasion of their names
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to be added alongwith the Forest Department in the
Survey No.11/1, hence their name was wrongly entered
which deserves to be expunged. It is submitted that
it was the Forest Department, who was in possession
of the Survey No.11/1. The State has granted Mining
Lease on the Survey No.11/1, which clearly proves
that it was the State of Goa, which was in possession
of Survey No.11/1 and there was no possession of the
plaintiffs.
9. Learned counsel appearing for the defendants
refuting the submission of the appellants contends
that the names of plaintiffs’ ancestors were recorded
in matriz document No.4, which clearly proves that it
was the plaintiffs’ forefathers, who were owners of
the suit property. It is submitted that the
complaint was filed by one of the plaintiffs dated
07.08.1975, which was the complaint with regard to
adjoining land of the plaintiffs and not with regard
to suit land. He submits that withdrawal of the
complaint shall have no adverse effect on the right
of the plaintiffs. He further submits that insofar as
lease granted by the State of Goa is concerned, it is
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the State, which has right to grant the lease, even
if the land is owned by a tenure holder. He submits
that grant of mining lease by the State has no effect
on the rights of the plaintiffs. He has relied on a
judgment of the Bombay High Court dated 10.12.2013 in
Writ Petition No. 158 of 2005 – Smt. Maria Teresa
Philomena D’Rocha Pegado Vs. State of Goa and Others.
10. We have considered the submissions of the learned
counsel for the parties and have perused the records.
We have also gone through the original record of the
trial court received in pursuance of the directions
of this Court’s order dated 10.12.2019.
11. The suit filed by the plaintiffs for seeking
direction to delete the name of “Forest Department”
from the survey entry No.11/1 of the village Sulcorna
and to declare the plaintiffs as the exclusive owner
of the property bearing survey No.11/1 having been
dismissed by the trial court and no appeal having
been filed by the plaintiffs against the said
judgment the rejection of the claim of the
plaintiff’s ownership of survey No.11/1 has become
final. In the suit filed by the plaintiffs the
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appellant had filed the counter-claim which was
rejected by the trial court against which appeal was
filed by the appellant which has been dismissed by
the High Court against which judgment the appellant
has come up in this appeal.
12. The only question to be answered in this appeal
is as to whether the counter-claim filed by the
appellant had rightly been rejected by the courts
below. For answering the above question, we need to
notice the sequence of the events and the evidence on
record filed before the courts below as well as the
additional evidence filed by the appellant in this
Court.
13. The plaintiffs’ case before the trial court was
that the names of the plaintiffs’ ancestors i.e. Essu
Gauncar, Horry Gauncar, Mocunda Gauncar, Gonoba
Gauncer, Siva Gauncar, all of Sulcorna were recorded
in the Matriz document.
14. The Rules were framed, namely, the Goa, Daman and
Diu (Record of Rights and Register of Cultivators)
Rules, 1969. Public notice in Form II was issued with
regard to village Sulcorna in which survey No.11/1
was recorded in the name of “Forest Department” only.
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In the additional documents notice published in Form
II has been brought on record as Annexure-1 to
I.A.No. 187381 of 2019. Notice in Form II was
published as per Rule 5. Rule 5 of the Rules, 1969 is
as follows:
“5. Issue of notice. – (1) When the Record
of Rights is to be introduced in any
village for the first time, the Talathi
shall issue a public notice in Form II
calling upon all persons who have any
interest in the lands in the village to
furnish to him either in writing or orally
information on all or any of the following
points within one month from the date of
the public notice:
(i) Survey number and sub-division
number, if any, of the land(or
where the lands are not surveyed,
the name of the field and its
boundaries) in which he has any
interest as holder, occupant,
owner, tenant, landlord,
mortgage, Government lessee or in
any other manner.
(ii) The nature of interest in the
land. (iii) The tenure on which the land is
held, that is to say whether the
land is held as owner, occupant
class I or II or Government
lessee.
(iv) The encumbrance or charge, if
any, on the land and the name of
the holder of such encumbrance or
charge.
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(2) The aforesaid notice shall be published
in the village by beat of drum and by
affixing copies thereof in a conspicuous
place in the village and where there is
a village panchayat in the office of the
village panchayat.”
15. When the notice was published in Form II
mentioning the name of the ‘Forest Department’
against survey No.11/1, Vishu Shivram Gaonkar one of
the plaintiffs filed an application to Mamlatdar
stating following:
“Sub: Application regarding the incorrect
land survey.”
This is to inform you that the Records of
Right are surveyed in our village Sulkarna.
I have seen the maps prepared by the
Cadastral Survey. The maps are not correct
i.e. our land is excluded from the map.
The land adjacent to some of our land is
recorded in the name of Forest Department.
But the land from our survey No.11
Kanyamal, Survey No.16 Charbhat, Survey
No.21 Mutfond, 22/1, 22/2 Patondem these
Bimbad, Survey No.43, Chanode, Survey No.44
Chanode, all from these lands are recorded
in the adjacent map and that land is
recorded in the name of Forest Department.
But land owned by us is existing in that
land and the documents regarding the place
(land) are in the name of my father
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Shivaram Vishnu Gaunkar and Narayan Vishnu
Gaonkar. We state that the land does not
belong to the Forest Department but belongs
to us. Kindly conduct a survey again and
hand over our land to us.
Regards,
Yours faithfully,
Vishnu Shivaram Gaonkar”
16. On the basis of the application filed by Vishnu
Shivaram Gaonkar a notice was issued in Form VI to
Vishnu Shivaram Gaonkar who had raised the dispute
asking him to present on 20.10.1975 in reference to
his application. The said Form VI i.e. notice dated
01.10.1975 has been brought on record as Annexure-5
to I.A.No.187381 of 2019. Vishnu Shivaram Gaonkar
appeared before the Revenue Authority on 20.10.1975
and stated that he wished to withdraw his application
dated 07.08.1975 addressed to Mamlatdar for
correction of records of rights. This is further to
be noted that on the application filed by Vishnu
Shivaram Gaonkar. Dispute Case No.3, Sulcorna was
registered. Rule 6 of Rules, 1969 provides a detailed
procedure for preparation of Index of Lands which
contains the entire procedure from preparation of
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draft of the Index of Lands in Form III and
subsequent procedure including individual notice in
Form VI to those who have raised objections. Rule 6
for ready reference is extracted below:
“6. Preparation of Index of Lands.— (1)
The Talathi shall on the basis of the
information received under Section 96 and
97 or such information as he may collect by
making local inquiry prepare a draft of the
Index of land in the village in Form III.
(2) The draft of the Index of Lands
prepared under sub-rule (1) shall, after
being checked by the Revenue Inspector or a
Survey Officer not below the rank of a
Revenue Inspector, be published by issuing
a notice in Form IV and publishing the
notice in the manner provided in sub-rule
(2) of rule 5. The notice shall call upon
all persons having interest in the lands in
the village to inspect the draft, which
shall be kept open for inspection for a
period of thirty days on the dates and
times and at a place (which shall be
convenient to the villagers) to be
specified in such notice and to submit to
him in writing within one month from the
last date for inspection specified in the
said notice * [or within such date the
Government by Notification at any time
before the promulgation may specify] their
objections, if any, to any of the entries
in the draft. The notice shall also mention
the date (such date being not earlier than
one month from the expiry of the period
specified for submission of objections) on
which the entries in the draft will be read
aloud in public and the objections received
within the prescribed period shall be
inquired into decided by a Survey Officer
or as the case may be, a Revenue Officer
not below the rank of an Awal Karkun and
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call upon the persons having interest in
lands to be present at the aforesaid
occasion.
(3) If from the objection received by
the Talathi under sub-rule (2), he finds
that disputes exist relating to entries in
respect of certain lands, he shall enter
such disputes in a register of disputed
cases, which shall be maintained for each
village in Form V. He shall simultaneously
give individual notice in Form VI to each
person who appears to him to be interested
in the disputed entry, informing him of the
dispute and calling upon him to be present
on the date the dispute is to be heard and
decided.
(4) On the date specified in the
notice issued under sub-rule (2), the
Revenue or Survey Officer concerned shall
at the appointed place and time read aloud
in the presence of the persons assembled,
the draft of the Index of Lands for the
village. He shall then inform them of the
lands in respect of which disputes have
been raised and ask them whether they admit
the entries in respect of the remaining
lands. If they admit such entries the
officer shall make a remark to that effect
in the remarks column of the draft. If in
respect of any entry any error is pointed
out and is admitted by all concerned, the
entry shall be corrected and a remark made
to that effect in the remarks column. If a
dispute is raised in respect of any entry
it shall be entered in the register of
disputed cases.
(5) Thereafter the officer concerned
shall, after verifying whether the Talathi
has given individual notices under sub-rule
(3), proceed to decide the disputed cases
entered in the register of disputed cases
19
and record therein his decision in respect
of each dispute. The decision shall be
announced to the persons assembled.
(6) The entries in the draft of the
Index of Lands shall be corrected in red
ink by the Talathi in the light of the
decisions given under sub-rule (5).”
17. We have noticed above that as per Rule 5 in Form
II notice was issued inviting all persons who have
any interest in the lands in the village to furnish
to him either in writing or orally information and
objection. In the present case after draft of the
Index of Lands prepared under Rule 6 objection was
filed by Vishnu Shivram Gaonkar as noted above on
which individual notice was also issued to him in
Form VI asking him to appear on 20.10.1975. On
20.10.1975 proceeding sheet of Court of Aval Karkun
for record of rights indicates that on 20.10.1975
applicant Vishnu Shivram Gaonkar made a statement
which is brought on record at page 17 of
I.A.No.187381 of 2019 which is to the following
effect:
“BEFORE AVAL KARKUN
I shall speak the truth and say*** *****
Name : Vishnu Shivram Gaonkar
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Age : 21 yrs – bachelor
Profession: Agriculturist
Resident : Sulcorna
** state that I wish to withdraw my
application dated 7-8-75 addressed to
Mamlatdar for record of rights.
Sd/-
Vishnu Shivram Gaonkar
Pirla
20/10/75
Before me
Sd/-“
18. The record of proceeding sheet dated 20.10.1975
indicates that after recording the statement of
Vishnu Shivram Gaonkar the case was closed. The above
proceedings indicate that the objection filed by
Vishnu Shivram Gaonkar was withdrawn and hence there
was no decision taken in Dispute Case No.3. Even
after withdrawal of the claim by the plaintiff, the
names of plaintiffs, Vishnu Shivram Gaonkar, Narayan
Vishnu Gaonkar and Rama S.F. Dessai were added by
correcting the Form III in red ink as required by
sub-Rule(6) of Rule 6. The entry of names of the
above persons along with Forest Department was stated
to be as per D.C.3 as is clear from Form III
Annexure-2 brought on record by the appellant. A
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coloured print of above Annexure-2 has been placed
before us by learned ASG which is taken on record,
which indicates that in Form III the addition of
names of three persons was by red ink. When Vishnu
Shivram Gaonkar had withdrawn his claim for deletion
of name of Forest Department, we fail to comprehend
that as to how despite that withdrawal which is duly
recorded in the proceedings their names can be added
along with Forest Department against survey No.11/1.
Thus, the recording of names of the plaintiffs in
survey No.11/1 along with the name of the Forest
Department was illegal and not as per Rule 6 of
Rules, 1969. When there was no decision in favour of
the plaintiffs, applicant on the objection dated
07.08.1975, there was no question of adding their
names in Index of Lands against survey No.11/1. The
addition of the names of the plaintiffs against
survey No.11/1 was completely without jurisdiction
and the said entry cannot be allowed to be continued.
19. That in the suit filed by the plaintiffs being
Special Civil Suit No.64 of 1995, there is no mention
of entire proceedings regarding correction of records
22
undertaken in 1975. The plaintiffs in the suit did
not disclose the aforesaid facts which were relevant
for determining the issues in consideration in the
suit. Plaintiffs thus have completely failed to
justify the continuance of their names against survey
No.11/1.
20. From the additional evidence brought on the
record by the State, it is clear that in the record
which was published of the Village Sulcarna for
survey No.11, it was the name of only Forest
Department which was mentioned on survey No.11 area
230.45.00 hectares and the addition of the name of
Vishnu Shivaram Gaonkar and two others were in
pursuance of Dispute Case No.3. The Goa, Daman and
Diu Land Revenue Code, 1968 was enacted to
consolidate and amend the Law relating to Land and
Land Revenue in the Union of territory of Goa, Daman
and Diu as then existed. Section 14 of the Code, 1968
which is relevant for the present case is as follows:
“14. Title of Government to lands, etc.
— (1) All lands, public roads, lanes and
paths and bridges, ditches, dikes and
fences on or beside the same, the bed of
the sea and of harbours and creeks below
the high water mark, and of rivers,
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streams, nallas, lakes and tanks, and all
canals and water courses, and all standing
and flowing water and all rights in or over
the same or appertaining thereto, which are
not the property of any person, are and are
hereby declared to be the property of the
Government subject to right of way, and all
other rights, public and individual,
legally subsisting.
Explanation:— In this section, “high
water-mark” means the highest point reached
by ordinary spring tides at any season of
the year.
(2) Unless it is otherwise expressly
provided in any law for the time being in
force or in the terms of a grant made by
the Government, the right to mines,
minerals and mineral products shall vest in
the 8 Government and it shall have all the
powers necessary for the proper enjoyment
of such rights.
(3) Where any property or any right in
or over any property is claimed by or on
behalf of the Government or by any person
as against the Government and the claim is
disputed, such dispute shall, after due
notice has been given and after holding a
formal inquiry, be decided by the Collector
or 11[an officer authorised by the
Government in this behalf.
(4) Any person aggrieved by an order
made under sub-section (3) or in appeal or
revision there from may institute a civil
suit to contest the order within a period
of one year from the date of such order,
and the decision of the civil court shall
be binding on the parties.
(5) Any suit instituted in any civil
court after the expiration of one year from
24
the date of any order passed under sub-
section (3) or, if appeal or revision
application has been made against such
order within the period of limitation, then
from the date of any order passed by the
appellate or revisional authority, shall be
dismissed (though limitation has not been
set up as a defence) if the suit is brought
to set aside such order or if the relief
claimed is inconsistent with such order,
provided that the plaintiff has had due
notice of such order.
(6) Any person shall be deemed to have
had due notice of an inquiry or order under
this section if notice thereof has been
given in accordance with rules made in this
behalf by the Government.”
21. The respondents had filed reply to I.a.No.187381
of 2019 and the additional documents which have been
filed along with IA, the objection has been taken
with regard to said documents being filed after long
delay. With regard to the documents filed by the
State along with IA following averments have been
made in paragraphs 3.1 to 7:
“3.1 I respectfully state at the outset
that these documents are public records and
in public domain and consequently it was
not difficult for the State
Government/Forest Department to have had
knowledge and/or access to these documents.
4. I say that the entire proceedings in the
Trial Court and the High Court have been
defended for the State by the Forest
Department and surely the Forest Department
25
knew of these documents and cannot feign
ignorance at this belated stage.
5. I say that the affidavit does not even
reveal why these documents were not
available with the Department and why were
not produced in the proceedings, specially
considering that the Civil Suit in the
Civil Court, Quepem, South Goa, Goa was
filed way back in 1995 – almost quarter of
a century.
6. Without prejudice to what is stated
hereinabove, I say that the copy of the
undated Application of Vishnu Shivram
Gaonkar (referred as Application dated
07.08.1975) when perused would show that
the claim in this application makes one
plea- that the maps are not correct since
land of Vishnu Shivaram Gaonkar has been
excluded from the map and recorded in the
adjacent map “and that land is recorded in
the name of Forest Department”.
7. I therefore respectfully submit that the
application of 1975 has no bearing with the
suit property which is subject matter of
the SLP and is totally irrelevant for
consideration in facts and circumstances of
the present case.”
22. The respondents themselves claim that the
documents which have been filed are public records
and in public domain, only objection raised by the
respondents is that it was not difficult for the
State to have had knowledge and access to these
documents. The veracity of the documents has not been
disputed.
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23. We have already noticed our order dated
10.12.2019 where these additional documents have
already been accepted with direction to the
respondents to file a reply to the application. The
respondents do not dispute of having raised the
objection after Revenue records were published
mentioning “Forest Department” against the survey
No.11/1, when the plaintiffs-respondents have
withdrawn their application on 20.10.1975, they
cannot be allowed to object the Entry of Forest
Department regarding survey No.11/1 as published in
Form II.
24. The matriz document which is claimed to be the
basis of rights by the plaintiffs-respondents is not
the document of title. The Bombay High Court in
Fabrica da Igreja de N.s. de Milagres vs. Union of
India and others, (1995) 1 Bom CR 588 dealing with
matriz document laid down following in paragraph 14:
“14………It is a settled position that a
matriz document is neither an instrument of
title nor a source of possession and that
the organisation of the “matriz predial” is
a mere administrative exercise aimed at
collecting tax revenues from the land. As
such no legal evidentiary value can be
27
attributed also to the said registration
for the purpose of establishing ownership
title or presuming possession on the land.”
25. More so, the plaintiffs ought to have agitated
for their claim with regard to survey No.11/1 and
ought not to have withdrawn application dated
07.08.1975 before the Revenue Official. It is
relevant to notice that in the suit which was filed
by the plaintiffs any mention of the proceedings
regarding records of rights of survey No.11/1
undertaken earlier were not referred to and the
mention of proceedings under Revenue Code, 1968 and
Rules, 1969 is conspicuously absent. The trial court
having dismissed the suit of the plaintiffs for
declaring them owner of survey No.11/1, we do not
find any justification for continuance of the names
of the plaintiffs in survey No.11/1 of Village
Sulcorna.
26. The State in its written statement has claimed
that Sulcorna has declared as forest by Gazette
Notification dated 11.01.1951 which Gazette was filed
as Annexure AA-3 filed on the record which mentions
Forests Sulcorna and the name of Village Sulcorna,
28
the Court below had not placed reliance on the said
Gazette only for the reason that the Gazette does not
mention any survey number. Survey No.11 was situate
in the Forest area is further proved by the documents
brought on the record by the appellant i.e. Mining
Lease which was granted w.e.f 22.11.1987 for survey
No.2 of Village Curpem and survey No.11 of Village
Sulcorna. The conditions of the Lease Deed indicate
that survey numbers on which Lease was granted
situate in the Forest area, the relevant condition
No.4 of the Lease is as follows:
“To enter upon reserved forests.
4. Notwithstanding anything in this
Schedule contained the lessee/lessees shall
not enter upon any reserve forests included
in the said lands without previous sanction
in writing of the District Forest Officer
nor fell cut a use any timber or trees
without obtaining the sanction in writing
of that Officer nor otherwise than in
accordance with such conditions as the
State Government may prescribe.”
27. In the Chapter of General Provisions, Clause 15
requires “Lease status of forest land will remain
unchanged”.
28. The suit filed by the plaintiffs was to delete
the name of Forest Department from survey No.11 which
29
suit having been dismissed the name of the Forest
Department continues with regard to survey o.11/1.
Even though Gazette dated 11.01.1951 does not mention
survey No.11 but Forest was declared in Village
Sulcorna and Survey No.11 is forest land is proved by
other evidence. We are satisfied that the counter-
claim filed by the State deserved to be allowed and
the name of the plaintiffs-respondents from survey
No.11/1 deserved to be struck off.
29. Learned counsel for the respondents relying on
the judgment of the Bombay High Court at Goa in Writ
Petition No.158 of 2005 (Smt. Maria Teresa Philomena
D’Rocha Pegado vs. State of Goa and others), has
submitted that Portuguese Colonial Mining Law was in
force prior to Goa becoming Union Territory and the
State was owner of proprietorship of all deposits of
minor minerals etc. which was so noted in the above
case by the Bombay High Court. Learned counsel for
the respondents has referred paragraphs 14 and 31 of
the judgment which are to the following effect:
“14. It would be relevant to refer to
Article 2 of Decree dated 20.09.1906 which
was a Portuguese Colonial Mining Law in
30
force during the erstwhile regime, which
reads thus:
“The proprietorship of deposits of
metals and metalliferous minerals,
including bismuth, arsenic, antimony,
sulphur, graphite, combustible minerals
with the exception of peat, bituminous
substances and mineral oils, precious
stones, alkalis, phosphates, mica and
amianthus belongs to the State; such
beds cannot be prospected or worked
without licence and concession by
Government in the terms of the present
Decree.”
A perusal of Article 2 of the aforesaid
decree would reveal that all metals and
metal-liferous minerals belong to the State
and such beds cannot be prospected or
worked without licence and concession by
the Government.
31. We are, therefore, of the considered
view that in view of the provisions of sub-
section (2) of Section 14 and Section 36 of
the Land Revenue Code, read with the
provisions of Article 2 of Decree dated
20.09.1906 which was a Portuguese Colonial
Mining Law, the right in the minor minerals
vests solely in the State Government and
the State Government has all powers
necessary for the purpose of enjoyment of
such rights. We find that this position is
fortified by the provisions of Section 24A
of the said Act, which is applicable to all
minerals, including minor minerals.”
30. The above judgment of the Bombay High Court
reiterated that it is the State which is the
31
proprietor of all minerals beneath the land. There
can be no dispute to the above proposition. For the
purpose of this case what was relied by the appellant
was that Mining Lease granted for survey No.11, Lease
conditions clearly mention the area as forest area
with the requirement to maintain the status of land
as the forest land. The grant of Lease by the State
is not disputed by the plaintiffs-respondents also.
We, thus, are of the considered opinion that the name
of the Forest Department recorded in survey No.11,
deletion of which has been refused and the name of
plaintiffs-respondents in the record in the manner
and circumstances in which it came on the records of
rights does not establish any claim of the
plaintiffs-respondents and defendant has clearly made
out the case for allowing counter-claim. The
additional evidence brought on record by the State
before this Court which has been accepted on record
fully support the counter-claim of the defendant. We,
thus, are of the view that counter-claim of the
defendant-appellant deserves to be allowed and the
32
judgment of courts below is to be modified to the
above extent.
31. In view of the foregoing discussion, the appeal
of the appellant is allowed, the counter-claim filed
by the defendants in Suit No.64 of 1995 is allowed.
The name of plaintiffs-respondents be deleted from
the occupant’s column in survey No.11/1 Sulcorna
Village of Quepem Taluka, District Goa. Parties shall
bear their own costs.
………………….J.
( ASHOK BHUSHAN )
………………….J.
( NAVIN SINHA )
New Delhi,
March 04, 2020.
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