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LPA/72/2000 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 72 of 2000
In
SPECIAL
CIVIL APPLICATION No. 6421 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT & 5 - Appellant(s)
Versus
ABDULHAMIDKHAN
HUSENYAVAKHAN JIBABI & 2 - Respondent(s)
=========================================================
Appearance
:
GOVERNMENT
PLEADER for
Appellant(s) : 1 - 6.
MR HARIN P RAVAL for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 18/11/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The present appeal arises against
the judgement dated 15.1.1999 passed by the learned Single Judge of
this Hon’ble Court in Special Civil Application No.6421 of 1998,
whereby the petition of the State against the order of the
Revisional Authority has been dismissed.
In order to consider the matter,
reference to certain facts would be relevant, which can be narrated
as under.
The subject matter of the property
is located at Ward No.7 Tika No.222 City Survey No.3531 (hereinafter
referred to as the ‘property in question’ for the sake of
convenience). As per the appellate State the property was in
possession of the State and Observation Home was located at the said
place. In P.R.B. Register in 1955-56, the property stood in the
name of the Government and as per the appellate State the property
in the Municipal Record also stood in the name of the Government.
Thereafter, when the City Survey was undertaken the entry was
mutated in the Revenue Record on 13.1.1969 for showing the property
as that of the State Government. The respondent herein did not
challenge the said City Survey record and the decision of the
concerned officer for a long time, but it appears that on 30th
September, 1989, the appeal was preferred by the respondent before
the Deputy Collector against the decision of the competent authority
of the City Survey for showing the property as that of the
Government. The said appeal came to be transferred to the District
Collector since the competent officer was of Class-I cadre of the
City Survey Department. The appeal was registered as Appeal No.61
of 1990. The District Collector in appeal vide order dated
16.9.1992 found that upon the merger of all Princely States of
Saurashtra, the properties of Sardargadh State vest to the State
Government and no evidence was produced to show that the same was
personal property of the appellant. It was also recorded by the
District Collector in the said order that the property earlier was
shown in P.R.B. Register as that of the State Government and the
possession is also of the PWD Department and the same is being used
for juvenile Court. Therefore, there was no question of issuing any
notice under Section 135B of the Land Revenue Code and consequently
the appeal came to be dismissed.
The respondent herein preferred
revision before the Secretary of the State Government and in the
revisional proceedings the Secretary of the State Government found
that in the Ordinance for administration of properties, the present
property is not included and, therefore, it cannot be believed that
the property is belonging to the State Government and it was also
found that merely because the possession is of the Government, it
cannot be said that the property belongs to the Government and,
therefore, he allowed the revision. The petitioner State –
appellant herein preferred Special Civil Application before this
Court against the aforesaid decision of the Secretary of the State
Government in revisional jurisdiction. The learned Single Judge
examined the matter and was mainly guided by the fact that in the
Ordinance, this property was not included and, therefore, the
property held by the person in personal capacity as Talukdar of
Sardargadh could not have been vested in the State and consequently
the learned Single judge confirmed the order of the Secretary of the
State Government in revisional jurisdiction. It is under these
circumstances, the State has preferred the present LPA.
We have heard Mr.Nanavati, learned
AGP for the appellant State and Mr.Ashish Shah for Mr.Raval, learned
Counsel for the respondent.
At the outset, Mr.Shah for
Mr.Raval, learned Counsel for the respondent, contended that the
present LPA would not be maintainable, because Special Civil
Application was in substance under Article 227 of the Constitution
of India since it arose from the order passed by the Secretary of
the State Government in revisional jurisdiction under the Bombay
Land Revenue Code.
Whereas, the learned AGP contended
that the petition was also under Article 226 of the Constitution of
India and, therefore, the LPA could be maintained.
We find that in the title of the
petition, it is mentioned as under Articles 226 and 227 of the
Constitution of India. Further, the perusal of the order passed by
the learned Single Judge shows that the learned Single Judge has,
for the first time, in exercise of the power in further examination
of the title in a dispute arising for the maintenance of the revenue
record, which would only be available under Article 226 of the
Constitution, of course, simultaneously while considering the
legality and validity of the order passed by the Secretary of the
State Government in revisional jurisdiction. Upon such being the
situation, the petition could also be said as under Article 226 as
well as under Article 227 of the Constitution of India. Therefore,
it is not possible to accept the contention that the present LPA
being intra Court appeal would not be maintainable.
It is by now well settled that the
revenue entry assumes importance only for the fiscal purpose, but
neither confirms the title, nor takes away the title. Therefore,
the attempt made by the respondent to reverse the entry made in
favour of the Government by establishing the title in the entry
proceedings can hardly be countenanced. It is true that if the
entry is to be revered and/or modified, notice is required to be
issued to the person affected thereby, but the pertinent aspect is
that prior to 1969 when the records of rights was prepared by the
City Survey Department, the property was already shown in the P.R.B.
Register under the possession of the State Government. Further, it
is an admitted fact that the possession of the property was with the
State PWD Department and the building was used for juvenile Court.
Under these circumstances, when earlier entry did not exist for
showing the name of the respondent and if at the time of preparation
of the City Survey Record the concerned Officer has decided to show
the property in possession of the State Government, there was no
question of hearing to be given to the respondent, more particularly
when nothing at the relevant point of time was on record to show
that the property was in the name of the respondent as per the
Register or the Revenue Record, as the case may be. Apart from the
above, the pertinent aspect is that the respondent is said to be the
successor of the ruler of the then Sardargadh State, after
independence all Princely State of Saurashtra merged with the United
State of Kathiawad and thereafter the United State of Kathiawad was
renamed as State of Saurashtra.
Even if it is considered that the
Ruler of Sardargadh State did not sign covenant at the initial stage
for merger with United State of Kathiawad, which has been
subsequently renamed as State of Saurashtra, then also the Ordinance
of 1950 does provide for vesting of the property in the Manager or
the Collector of Saurashtra District of the State of Saurashtra,
which had taken over the administration of Sardargadh Taluka and the
said aspect is apparent from the Sardargadh (Administration of
Property) Ordinance, 1950 published in the Government Gazette on
19.1.1950. The said ordinance provided for the power of the
Government vide Clause-3 as under :-
“The Manager or the Collector,
Sorath District, as the case may be, shall have, and shall be deemed
always to have in relation to properties vested in him. Under
Section 2 all the rights, powers and authority which a full owner
has or exercises in relation to his own property.”
Merely because in the Schedule
there is reference to some of the movable property, it cannot be
read that the immovable property of the then Sardargadh State would
not vest to the Collector of Sorath District of State of Saurashtra.
If the contention of the respondent is that it was the personal
property of Talukdar or forefather of the respondent, it is for the
Talukdar and the then Ruler of the Sardargadh State to establish the
same and then only such property would get saved from vesting to the
State of Saurashtra or the Collector of Sorath District of State of
Saurashtra. We find that the learned Single Judge has committed
error in not properly considering the said aspect.
Further as per the provisions of
Section 37 of the Bombay Land Revenue Code, all land vests to the
State, unless established that the same is personal property of any
citizen or any person. As per the provisions of Bombay Land Revenue
Code, if any person is asserting his right in his personal or
individual property, he has to raise the dispute and such can be
examined by the competent authority of the Government and if he
fails in establishing the title of the property before the competent
authority a suit can be instituted before the Civil Court for
confirmation of the title or otherwise, and the decision of Civil
Court would prevail for the land in question.
The examination of the facts of
the present case further shows that the property was in possession
of the PWD Department of the State of Saurashtra. It was also shown
in the record as that of belonging to the State Government. At that
stage, if the claim of the respondent was that the City Survey
Record was not correctly prepared as showing the property of the
Government, and it was personal property of the then Ruler of State
of Sardargadh the proper course for the respondent was to file civil
suit for establishing the title over the property and in the
proceedings of maintenance of the entry record or the city survey
record, the aspects of title could not have been examined. The
observations made by the lower authority namely as that of the
District Collector can be read only for the purpose of maintenance
of the record on City Survey Department and it cannot be read for
examination of the title of the property either belonging to the
respondent or otherwise. Unfortunately, the Secretary of the State
Government in revisional jurisdiction, instead of relegating the
parties to the proceedings before the Civil Court has gone into the
aspects of title in detail and has, by making observation, conferred
the title upon the respondent of the property and has divested the
State from the title of the property, which could be said as beyond
the power and jurisdiction.
It appears to us that the learned
Single Judge in all fairness ought to have set aside the
observations made by the Secretary of the State Government in
revisional jurisdiction on the aspects of title and ought to have
relegated the respondent for filing appropriate civil suit for
establishing the title, but it appears to us that instead of doing
so, the learned Single Judge has further examined the title and
confirmed the title upon the respondent in the revenue entry
proceedings. Therefore, it can be said that error has been
committed while exercising the power under Article 226/227 of the
Constitution of India in the revenue entry proceedings by expressing
view for the confirmation of the title.
We may record that no observations
have been made by the learned Single Judge in the impugned order,
relegating parties to resort to appropriate proceedings before the
Civil Court for establishing the title, therefore, if the
observations made by the learned Single Judge on the aspects of
title are allowed to operate, it may result into further
complication of creating a cloud over the right of possession of the
property by the State, which is since independence and, in any case,
after taking over of the property of the then Sardargadh State.
Therefore, we find that it would be just and proper to interfere
with the order passed by the Secretary of the State Government in
revisional jurisdiction and its confirmation thereof by the learned
Single Judge of this Court and to relegate the respondent to resort
to appropriate proceedings before the Civil Court for establishing
the rights in property if the respondent is contending that the same
is personal property of the then Ruler or Talukdar of State of
Sardargadh.
In view of the aforesaid
observations and discussions, the impugned order passed by the State
Government in revisional jurisdiction as well as its confirmation
thereof by the learned Single Judge are quashed and set aside, but
with the further observations and directions that it would be open
to the respondent to file appropriate civil suit for establishing
the title in the property in question and if such remedy is resorted
to by the respondent before the Civil Court, the revenue record of
City Survey Department and/or the order passed by the District
Collector in appeal shall not operate as a bar, nor shall be read as
conclusive and the Civil Court shall be at liberty to examine the
matter independently on the basis of the material and the evidence
produced before it. Hence, subject to the aforesaid observations
and directions, the appeal is allowed. Considering the facts and
circumstances, no order as to costs.
After the pronouncement of the
order, Mr.Shah for Mr.Raval, learned Counsel for the respondent
prayed that the operation be stayed for some time, so as to enable
his client to approach before the higher forum.
Considering the facts and
circumstances, we find that when the remedy is already permitted to
be resorted to the respondent, no prejudice would be caused by the
present order. Hence, the said remedy is not granted.
(Jayant Patel, J.)
(S.
R. Brahmbhatt, J.)
vinod
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