STATE OF GOA versus NARAYAN V. GAONKAR & ORS. on 4 March 2020

526

[2020] 4 S.C.R. 526

SUPREME COURT REPORTS

[2020] 4 S.C.R.

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STATE OF GOA

v.

NARAYAN V. GAONKAR & ORS.

(Civil Appeal No.1866 of 2020)

BMARCH 04, 2020

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Suit – for declaration of ownership – The plaintiffs-respondents filed a suit for a direction to delete the name of ‘Forestdepartment’ from the survey entry No. 11/1 of a Village and toCdeclare the plaintiffs as the exclusive owners of the said property –The defendants-appellant, the State, had filed a written statement-cum-counter claim refuting the claim of the plaintiffs and claimedthat entire suit property was in possession and belonged to the ForestDepartment – In the counter-claim, it was pleaded that plaintiffsDwere wrongly recorded as co-occupants – The Trial court dismissedthe suit filed by the plaintiffs and the counter-claim filed by thedefendants- State was also rejected – The plaintiffs having not filedany appeal against the rejection of the claim, the judgment of theTrial Court has become final, however, the defendants filed appealin the High Court, which was dismissed – On appeal, held: AEproceeding sheet of Court for record of rights (correction of records)indicated that on 20.10.1975, one of the plaintiff made a statementthat he wished to withdraw his application dated 07.08.1975regarding a claim that the survey no.11/1 belonged to plaintiffs, itwas addressed to Mamlatdar for record of rights and hence, theFdispute case was closed – Even after withdrawal of the claim ofplaintiff, the names of plaintiffs were added by correcting the FormIII in red ink as required by sub-rule (6) of Rule 6 of the Goa,Daman and Diu (Record of Rights and Register of cultivators) Rules,1969 – When there was no decision in favour of the plaintiffs,applicant on the objection filed by them, there was no question ofGadding their names in Index of Lands against survey No.11/1 – Therecording of names of the plaintiffs in survey no. 11/1 along withthe name of the Forest Department was illegal and not per 1969rules – The plaintiffs failed to justify the continuance of their namesagainst survey No. 11/1 – Further, in the suit, the plaintiffs did not H

mention/disclose proceeding regarding the correction of recordsundertaken in 1975 – From the additional evidence brought on therecord by the State, it is clear that in record published, it was onlythe name of the Forest Department – Even though Gazette dated11.01.1951 does not mention survey no. 11 but forest was declaredin the village and the survey no. 11 is forest land is proved by otherevidence – Thus, the defendant-State has clearly made out the casefor allowing counter-claim – Accordingly, the name of the plaintiffs-respondents from survey no. 11/1 directed to be struck off.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. The record of proceeding sheet dated 20.10.1975indicates that after recording the statement of one of the Plaintiffthe case was closed. The said proceedings indicate that theobjection filed by Plaintiff was withdrawn and hence there was nodecision taken in Dispute Case No.3. Even after withdrawal ofthe claim by the plaintiff, the names of plaintiffs were added bycorrecting the Form III in red ink as required by sub-Rule(6) ofRule 6. The entry of names of the above persons along with ForestDepartment was stated to be as per D.C.3 as is clear from FormIII Annexure-2 brought on record by the appellant. A colouredprint of above Annexure-2 has been placed before this Court byASG which is taken on record, which indicates that in Form IIIthe addition of names of three persons was by red ink. Whenplaintiff had withdrawn his claim for deletion of name of ForestDepartment, this Court fails to comprehend that as to how despitethat withdrawal which is duly recorded in the proceedings theirnames can be added along with Forest Department against surveyNo.11/1. Thus, the recording of names of the plaintiffs in surveyNo.11/1 along with the name of the Forest Department was illegaland not as per Rule 6 of Rules, 1969. When there was no decisionin favour of the plaintiffs, applicant on the objection dated07.08.1975, there was no question of adding their names in Indexof Lands against survey No.11/1. The addition of the names ofthe plaintiffs against survey No.11/1 was completely withoutjurisdiction and the said entry cannot be allowed to be continued.[Para 18][539-D-H; 540-A]

2. That in the suit filed by the plaintiffs, there is no mentionof entire proceedings regarding correction of records undertaken AB

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Ain 1975. The plaintiffs in the suit did not disclose the aforesaidfacts which were relevant for determining the issues inconsideration in the suit. Plaintiffs thus have completely failed tojustify the continuance of their names against survey No.11/1.[Para 19][540-B]B3. From the additional evidence brought on the record by B3. From the additional evidence brought on the record bythe State, it is clear that in the record which was published of theVillage Sulcarna for survey No.11, it was the name of only ForestDepartment which was mentioned on survey No.11 area 230.45.00hectares and the addition of the name of Plaintiff and two otherswere in pursuance of Dispute Case No.3. The Goa, Daman andCDiu Land Revenue Code, 1968 was enacted to consolidate andamend the Law relating to Land and Land Revenue in the Unionof territory of Goa, Daman and Diu as then existed. [Para 20][540-C-D]

4. The respondents themselves claim that the documentsDwhich have been filed are public records and in public domain,only objection raised by the respondents is that it was not difficultfor the State to have had knowledge and access to thesedocuments. The veracity of the documents has not been disputed.[Para 22][542-D-E]

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5. More so, the plaintiffs ought to have agitated for theirclaim with regard to survey No.11/1 and ought not to havewithdrawn application dated 07.08.1975 before the RevenueOfficial. It is relevant to notice that in the suit which was filed bythe plaintiffs any mention of the proceedings regarding recordsFof rights of survey No.11/1 undertaken earlier were not referredto and the mention of proceedings under Revenue Code, 1968and Rules, 1969 is conspicuously absent. The trial court havingdismissed the suit of the plaintiffs for declaring them owner ofsurvey No.11/1, this Court does not find any justification forcontinuance of the names of the plaintiffs in survey No.11/1 ofGVillage Sulcorna. [Para 25][543-B-C]

6. The State in its written statement has claimed thatSulcorna has declared as forest by Gazette Notification dated11.01.1951 which Gazette was filed as Annexure AA-3 filed onthe record which mentions Forests Sulcorna and the name ofH

Village Sulcorna, the Court below had not placed reliance on thesaid Gazette only for the reason that the Gazette does not mentionany survey number. Survey No.11 was situate in the Forest areais further proved by the documents brought on the record by theappellant i.e. Mining Lease which was granted w.e.f 22.11.1987for survey No.2 of Village Curpem and survey No.11 of VillageSulcorna. [Para 26][543-D-E]

7. The suit filed by the plaintiffs was to delete the name ofForest Department from survey No.11 which suit having beendismissed the name of the Forest Department continues withregard to survey No.11/1. Even though Gazette dated 11.01.1951does not mention survey No.11 but Forest was declared in VillageSulcorna and Survey No.11 is forest land is proved by otherevidence. This Court is satisfied that the counter-claim filed bythe State deserved to be allowed and the name of the plaintiffs-respondents from survey No.11/1 deserved to be struck off. [Para28][544-A-B]

Fabrica da Igreja de N.s. de Milagres v. Union of Indiaand Others (1995) 1 Bom CR 588 – referred to.

Case Law Reference

(1995) 1 Bom CR 588referred toPara 24

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1866of 2020.

From the Judgment and Order dated 30.06.2011 by the High Courtof Bombay at Goa in First Appeal No. 115 of 2011.

Madhavi Divan, ASG, Surjendu Sankar Das, Carlos A. Fereira,Ms. A. Subhashini, Advs. for the appearing parties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. This appeal has been filed by the State of Goa questioningjudgment of High Court of Bombay at Goa dated 30.06.2011 dismissingthe First Appeal No. 115 of 2001 filed by the appellant. The First AppealNo.115 of 2001 was filed by State of Goa through the Secretary, ForestDepartment; the Collector South Sub-Division, Margao, Goa; the Directorof Survey & Settlement Officer, Panaji, Goa and the Chief Secretary, A

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APanaji, Goa challenging the judgment and order of the learned Civil Judgedated 23.04.2001 dismissing the Civil Suit No. 64 of 1995 filed by theplaintiffs-respondents 1 to 9 as well as the counter claim filed bydefendants- appellant.

2. The brief facts of the case necessary to be noted for decidingBthis 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 inthe Court of Civil Judge, Senior Division at Quepem praying forfollowing: - C

“In the aforesaid circumstances, it is prayed to yourhonour, to direct the survey authorities to delete the name of“Forest Department” from the survey entry No.11/1 of thevillage Sulcorna from “Name of the Occupant” column ofsurvey Form No.I & XIV and to declare the plaintiffs as theexclusive owners of the property bearing survey No.11/1 knownas “CONDA MALL” or “BINDANGAL” or “BINDANMOLL” or “CARIA MOLL” of Village Sulcorna of TalukaQuepem.”

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2.2 In the Suit, the Secretary, Forest Department, Government ofGoa; the Collector South Sub-Division, Margao, Goa; the Directorof Survey & Settlement Officer, Survey of Land Records, Panaji,Goa and the Chief Secretary, Government of Goa, Panaji, Goawere defendant Nos. 1 to 4. A common written statement-cum-counter claim was filed by all the defendants refuting the claim ofthe plaintiffs. The defendants claimed that entire suit propertyunder Survey No.11/1 of village Sulcorna of Quepem Taluka,admeasuring an area of 23,04,500 sq. mtrs. is in possession andbelongs to the Forest Department and as such the name of theForest Department has been rightly recorded in occupant’s columnin said Survey No.11/1 and the plaintiffs nor any person have anyright over the suit property.

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2.3 The plaintiffs claim that they are owners in possession of alanded property known as CONDA MOLL or BINDIGAL orBINDAN MOLL, situated at Sulcorna Village in Quepem Taluka,Goa was disputed. Defendant’s pleaded that entire plantationexisting there are planted and enjoyed by the Forest Department.

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It was pleaded that suit property is a forest property of the ForestDepartment 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 beenwrongly recorded as co-occupants in survey No.11/1 of VillageSulcorna, Taluka Quepem, which is owned, enjoyed and inpossession of the defendant No.1 - Forest Department for thelast many years and reference to the Notification dated 11.01.1951was made. In the counter claim, following prayers were made bythe defendants in paragraph 17:- “17. In the circumstances, the Defendants pray:

(a) That by a decree in the nature of direction, the survey authoritybe directed to delete the names of the plaintiffs from theoccupant’s column in respect of survey No.11/1, SulcornaVillage of Quepem Taluka.

(b) For any other reliefs in the circumstances of the case mayrequire.”

2.5 Written statement to the counter claim was also filed by theplaintiffs claiming that they are in exclusive possession of SurveyNo.11/1 and the name of the Forest Department has been wronglyrecorded as co-occupants.

2.6 The learned Civil Judge framed two issues to the followingeffect:-

1) Whether the plaintiffs prove that they are owners in possessionof the suit property as described in paragraph 1 of the plaint?

2) Whether the defendants prove that the plaintiffs name havebeen wrongly recorded as co-occupant in the propertysurveyed under No.11/1 of Village Sulcorna and as such theirnames may be deleted from the occupant’s column of SurveyNo.11/1?

2.7 While answering Issue No.1, Civil Judge held that plaintiffshave failed to prove that they are owners of the suit property,however, Civil Judge upheld the plaintiffs’ possession. Issue No.2was answered against the defendant. A First Appeal was filed bythe defendants in the High Court praying that judgment of the A

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Alearned Civil Judge be quashed and set aside to the extent thatlearned Civil Judge held that respondents (plaintiffs) were inpossession and the judgment insofar as it dismissed the counterclaim of the appellants, it was prayed that the High Court maydelete the name of the respondents in occupant column in FormNos.I & XIV and also hold that respondents (plaintiffs) are not inBpossession of the suit land.

2.8 No appeal was filed by the plaintiffs against the judgment ofthe learned Civil Judge. The High Court dismissed the appeal ofthe appellants while observing that trial court has rightly rejectedthe 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 CivilJudge. Aggrieved with the judgment of the High Court, this appealhas been filed by the State of Goa.

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3. This Court on 05.07.2012 passed following order:- D

“Issue notice on the application for condonation of delay aswell as on the special leave petition.

However, the petitioner is directed to produce the relevantrecords to show that the property in question is a forest land.”

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E4. In pursuance of the order of this Court dated 05.07.2012, theappellants filed an affidavit dated 17.08.2012 bringing on record FormNos. I & XIV dated 13.07.2012. The Notification dated 11.01.1951published in the Government Gazette was also brought on record. AMining Lease granted by Government of Panaji, Goa dated 09.03.1998Fhas also been brought on record where Mining Lease of an area of 51hectares in Survey No.2 of Village Quepem and Survey No.11 of VillageSulcorna was granted by State of Goa.

5. An I.A. No. 187381 of 2019 was filed by the appellant seekingpermission to file additional documents, i.e., Annexures 1 to 5 to theapplication. This Court by order dated 10.12.2019 allowed the applicationGand permitted the respondents to file a reply to the application and thedocuments. On 10.12.2019, following order was passed by this Court:- “We find sufficient grounds to take additional documentson record. Application is allowed.

Let the counsel for the respondents file a reply to theapplication and the documents, which have brought on the record,within four weeks.

Let records of the Trial Court be also summoned. Registryto take appropriate steps.

List on 28.01.2020.”

6. By the above order, the record of the trial court was alsosummoned, which was duly received by this Court and was perused bythe Court. In pursuance of the order dated 10.12.2019, counter replyaffidavit in reply to the application have been filed by the respondentsdated 10.01.2020.

7. We have heard Ms. Madhavi Divan, learned ASG for theappellant and Shri Carlos A. Fereira, learned counsel for the respondents.

8. Learned counsel for the appellants in support of the appealsubmits that the trial court having rejected the claim of the plaintiffs ofownership and the plaintiffs having not filed any appeal, the findings thatthey are not the owner of Survey No.11/1 has become final and no rightor title can be claimed with regard to Survey No.11/1 by the plaintiffs. Itis submitted that by Gazette Notification dated 11.01.1951 published inthe Government Gazette by the then Government of Goa the descriptionof the National Forests in District Goa was published wherein in VillageSulcorna forest was declared and published. It is submitted that theadditional affidavit which have been brought on the record clearly indicatethat according to the Goa, Daman and Diu Land Revenue Code, 1968and Rules framed therein,when land survey was made with regard toSurvey No.11 of area 230.54 hectares, name of Forest Department onlywas recorded. A complaint was submitted by Vishnu Shivram Gaonkar,one of the plaintiffs to the Mamlatdar complaining that land from SurveyNo.11 are recorded in the adjacent area in the name of the ForestDepartment. It was claimed that land does not belong to the ForestDepartment but belongs to the applicant. Request was made to conducta survey again and hand over applicant’s land to them. On the complaintfiled by the plaintiff Vishnu Shivram Gaonkar, Dispute Case No.3,Sulcorna was registered and notice was issued to Vishnu Shivram Gaonkarto appear on 20.10.1975 on which date, he appeared before theMamladatar and withdrew his application dated 07.08.1975. It issubmitted that despite the withdrawal of the application by Vishnu A

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AShivram Gaonkar in Form III, name of Vishnu Shivram Gaonkar, ShriNarayan Vishnu Gaonkar and Shri Rama S.F. Dessai were addedalongwith the Forest Department referring to Dispute Case No.3. It issubmitted that when the complaint was withdrawn by the plaintiff, therewas no occasion of their names to be added alongwith the ForestDepartment in the Survey No.11/1, hence their name was wrongly enteredBwhich deserves to be expunged. It is submitted that it was the ForestDepartment, who was in possession of the Survey No.11/1. The Statehas granted Mining Lease on the Survey No.11/1, which clearly provesthat it was the State of Goa, which was in possession of Survey No.11/

1 and there was no possession of the plaintiffs.

1 and there was no possession of the plaintiffs.

C9. Learned counsel appearing for the defendants refuting thesubmission of the appellants contends that the names of plaintiffs’ancestors were recorded in matriz document No.4, which clearly provesthat it was the plaintiffs’ forefathers, who were owners of the suitproperty. It is submitted that the complaint was filed by one of the plaintiffsDdated 07.08.1975, which was the complaint with regard to adjoining landof the plaintiffs and not with regard to suit land. He submits thatwithdrawal of the complaint shall have no adverse effect on the right ofthe plaintiffs. He further submits that insofar as lease granted by theState of Goa is concerned, it is the State, which has right to grant thelease, even if the land is owned by a tenure holder. He submits that grantEof 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 10.12.2013in Writ Petition No. 158 of 2005 – Smt. Maria Teresa PhilomenaD’Rocha Pegado Vs. State of Goa and Others.

10. We have considered the submissions of the learned counselFfor the parties and have perused the records. We have also gone throughthe original record of the trial court received in pursuance of the directionsof this Court’s order dated 10.12.2019.

11. The suit filed by the plaintiffs for seeking direction to deletethe name of “Forest Department” from the survey entry No.11/1 of theGvillage Sulcorna and to declare the plaintiffs as the exclusive owner ofthe property bearing survey No.11/1 having been dismissed by the trialcourt and no appeal having been filed by the plaintiffs against the saidjudgment the rejection of the claim of the plaintiff’s ownership of surveyNo.11/1 has become final. In the suit filed by the plaintiffs the appellantHhad filed the counter-claim which was rejected by the trial court against which appeal was filed by the appellant which has been dismissed bythe High Court against which judgment the appellant has come up in thisappeal.

12. The only question to be answered in this appeal is as to whetherthe counter-claim filed by the appellant had rightly been rejected by thecourts below. For answering the above question, we need to notice thesequence of the events and the evidence on record filed before thecourts below as well as the additional evidence filed by the appellant inthis Court.

13. The plaintiffs’ case before the trial court was that the namesof the plaintiffs’ ancestors i.e. Essu Gauncar, Horry Gauncar, MocundaGauncar, Gonoba Gauncer, Siva Gauncar, all of Sulcorna were recordedin the Matriz document.

14. The Rules were framed, namely, the Goa, Daman and Diu(Record of Rights and Register of Cultivators) Rules, 1969. Public noticein Form II was issued with regard to village Sulcorna in which surveyNo.11/1 was recorded in the name of “Forest Department” only. In theadditional documents notice published in Form II has been brought onrecord as Annexure-1 to I.A.No. 187381 of 2019. Notice in Form IIwas 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 beintroduced in any village for the first time, the Talathi shall issue apublic notice in Form II calling upon all persons who have anyinterest in the lands in the village to furnish to him either in writingor orally information on all or any of the following points withinone month from the date of the public notice:

(i) Survey number and sub-division number, if any, of theland (or where the lands are not surveyed, the name ofthe field and its boundaries) in which he has any interestas 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 whetherthe land is held as owner, occupant class I or II orGovernment lessee.

(iv) The encumbrance or charge, if any, on the land and thename of the holder of such encumbrance or charge.

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A(2) The aforesaid notice shall be published in the village by beatof drum and by affixing copies thereof in a conspicuous place inthe village and where there is a village panchayat in the office ofthe village panchayat.”

15. When the notice was published in Form II mentioning theBname of the ‘Forest Department’ against survey No.11/1, Vishu ShivramGaonkar one of the plaintiffs filed an application to Mamlatdar statingfollowing:

“Sub: Application regarding the incorrect land survey.”

This is to inform you that the Records of Right are surveyed inour village Sulkarna. I have seen the maps prepared by theCadastral Survey. The maps are not correct i.e. our land isexcluded from the map.

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The land adjacent to some of our land is recorded in the name ofForest Department. But the land from our survey No.11 Kanyamal,DSurvey No.16 Charbhat, Survey No.21 Mutfond, 22/1, 22/2Patondem these Bimbad, Survey No.43, Chanode, Survey No.44Chanode, all from these lands are recorded in the adjacent mapand that land is recorded in the name of Forest Department.

But land owned by us is existing in that land and the documentsEregarding the place (land) are in the name of my father ShivaramVishnu Gaunkar and Narayan Vishnu Gaonkar. We state that theland does not belong to the Forest Department but belongs to us.Kindly conduct a survey again and hand over our land to us.

Regards,FYours faithfully,

Vishnu Shivaram Gaonkar”

16. On the basis of the application filed by Vishnu ShivaramGaonkar a notice was issued in Form VI to Vishnu Shivaram GaonkarGwho had raised the dispute asking him to present on 20.10.1975 inreference to his application. The said Form VI i.e. notice dated 01.10.1975has been brought on record as Annexure-5 to I.A.No.187381 of 2019.Vishnu Shivaram Gaonkar appeared before the Revenue Authority on20.10.1975 and stated that he wished to withdraw his application dated07.08.1975 addressed to Mamlatdar for correction of records of rights.H

This is further to be noted that on the application filed by Vishnu ShivaramGaonkar. Dispute Case No.3, Sulcorna was registered. Rule 6 of Rules,1969 provides a detailed procedure for preparation of Index of Landswhich contains the entire procedure from preparation of draft of theIndex of Lands in Form III and subsequent procedure including individualnotice in Form VI to those who have raised objections. Rule 6 for readyreference is extracted below:

“6. Preparation of Index of Lands.— (1) The Talathishall on the basis of the information received under Section 96and 97 or such information as he may collect by making localinquiry prepare a draft of the Index of land in the village in FormIII.

(2) The draft of the Index of Lands prepared under sub-rule (1) shall, after being checked by the Revenue Inspector or aSurvey Officer not below the rank of a Revenue Inspector, bepublished by issuing a notice in Form IV and publishing the noticein the manner provided in sub-rule (2) of rule 5. The notice shallcall upon all persons having interest in the lands in the village toinspect the draft, which shall be kept open for inspection for aperiod of thirty days on the dates and times and at a place (whichshall be convenient to the villagers) to be specified in such noticeand to submit to him in writing within one month from the last datefor inspection specified in the said notice * [or within such datethe Government by Notification at any time before the promulgationmay specify] their objections, if any, to any of the entries in thedraft. The notice shall also mention the date (such date being notearlier than one month from the expiry of the period specified forsubmission of objections) on which the entries in the draft will beread aloud in public and the objections received within theprescribed period shall be inquired into decided by a Survey Officeror as the case may be, a Revenue Officer not below the rank ofan Awal Karkun and call upon the persons having interest in landsto 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 ofcertain lands, he shall enter such disputes in a register of disputedcases, which shall be maintained for each village in Form V. Heshall simultaneously give individual notice in Form VI to each AB

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person who appears to him to be interested in the disputed entry,informing him of the dispute and calling upon him to be present onthe 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 theappointed place and time read aloud in the presence of the personsassembled, the draft of the Index of Lands for the village. Heshall then inform them of the lands in respect of which disputeshave been raised and ask them whether they admit the entries inrespect of the remaining lands. If they admit such entries theofficer shall make a remark to that effect in the remarks columnof the draft. If in respect of any entry any error is pointed out andis admitted by all concerned, the entry shall be corrected and aremark made to that effect in the remarks column. If a dispute israised in respect of any entry it shall be entered in the register ofdisputed cases.

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(5) Thereafter the officer concerned shall, after verifyingwhether the Talathi has given individual notices under sub-rule(3), proceed to decide the disputed cases entered in the registerof disputed cases and record therein his decision in respect ofeach dispute. The decision shall be announced to the personsassembled.

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(6) The entries in the draft of the Index of Lands shall becorrected in red ink by the Talathi in the light of the decisionsgiven under sub-rule (5).”

17. We have noticed above that as per Rule 5 in Form II noticeFwas issued inviting all persons who have any interest in the lands in thevillage to furnish to him either in writing or orally information and objection.In the present case after draft of the Index of Lands prepared underRule 6 objection was filed by Vishnu Shivram Gaonkar as noted aboveon which individual notice was also issued to him in Form VI asking himGto appear on 20.10.1975. On 20.10.1975 proceeding sheet of Court ofAval Karkun for record of rights indicates that on 20.10.1975 applicantVishnu Shivram Gaonkarmade a statement which is brought on recordat page 17 of I.A.No.187381 of 2019 which is to the following effect:

“BEFORE AVAL KARKUN

HI shall speak the truth and say*** *****

STATE OF GOA v. NARAYAN V. GAONKAR & ORS.[ASHOK BHUSHAN, J.]

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** state that I wish to withdraw my application dated 7-8-75addressed to Mamlatdar for record of rights.

Vishnu Shivram Gaonkar

Pirla20/10/75

Before me

18. The record of proceeding sheet dated 20.10.1975 indicatesthat after recording the statement of Vishnu Shivram Gaonkar the casewas closed. The above proceedings indicate that the objection filed byVishnu Shivram Gaonkar was withdrawn and hence there was nodecision taken in Dispute Case No.3.Even after withdrawal of the claimby the plaintiff, the names of plaintiffs, Vishnu Shivram Gaonkar, NarayanVishnu Gaonkar and Rama S.F. Dessai were added by correcting theForm III in redink as required by sub-Rule(6) of Rule 6. The entry ofnames of the above persons along with Forest Department was statedto be as per D.C.3 as is clear from Form III Annexure-2 brought onrecord by the appellant. A coloured print of above Annexure-2 has beenplaced before us by learned ASG which is taken on record, whichindicates that in Form III the addition of names of three persons was byred ink. When Vishnu Shivram Gaonkar had withdrawn his claim fordeletion of name of Forest Department, we fail to comprehend that as tohow despite that withdrawal which is duly recorded in the proceedingstheir names can be added along with Forest Department against surveyNo.11/1. Thus, the recording of names of the plaintiffs in surveyNo.11/1 along with the name of the Forest Department was illegal andnot as per Rule 6 of Rules, 1969.When there was no decision in favourof the plaintiffs, applicant on the objection dated 07.08.1975, there was C

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Ano question of adding their names in Index of Lands against surveyNo.11/1.The addition of the names of the plaintiffs against surveyNo.11/1 was completely without jurisdiction and the said entry cannotbe allowed to be continued.

19. That in the suit filed by the plaintiffs being Special Civil SuitBNo.64 of 1995, there is no mention of entire proceedings regardingcorrection of records undertaken in 1975. The plaintiffs in the suit didnot disclose the aforesaid facts which were relevant for determining theissues in consideration in the suit. Plaintiffs thus have completely failedto justify the continuance of their names against survey No.11/1.

C20. From the additional evidence brought on the record by theState, it is clear that in the record which was published of the VillageSulcarna for survey No.11, it was the name of only Forest Departmentwhich was mentioned on survey No.11 area 230.45.00 hectares and theaddition of the name of Vishnu Shivaram Gaonkar and two others werein pursuance of Dispute Case No.3. The Goa, Daman and Diu LandDRevenue Code, 1968 was enacted to consolidate and amend the Lawrelating 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 isrelevant for the present case is as follows:

“14. Title of Government to lands, etc.— (1) All lands,Epublic roads, lanes and paths and bridges, ditches, dikes and fenceson or beside the same, the bed of the sea and of harbours andcreeks below the high water mark, and of rivers, streams, nallas,lakes and tanks, and all canals and water courses, and all standingand flowing water and all rights in or over the same or appertainingFthereto, which are not the property of any person, are and arehereby declared to be the property of the Government subject toright of way, and all other rights, public and individual, legallysubsisting.

Explanation:— In this section, “high water-mark” meansGthe highest point reached by ordinary spring tides at any seasonof the year.

(2) Unless it is otherwise expressly provided in any law forthe time being in force or in the terms of a grant made by theGovernment, the right to mines, minerals and mineral productsshall vest in the Government and it shall have all the powersHnecessary for the proper enjoyment of such rights.

(3) Where any property or any right in or over any propertyis claimed by or on behalf of the Government or by any person asagainst the Government and the claim is disputed, such disputeshall, after due notice has been given and after holding a formalinquiry, be decided by the Collector or 11 [an officer authorisedby 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 civilsuit to contest the order within a period of one year from the dateof such order, and the decision of the civil court shall be bindingon the parties.

(5) Any suit instituted in any civil court after the expirationof one year from the date of any order passed under sub-section(3) or, if appeal or revision application has been made againstsuch order within the period of limitation, then from the date ofany order passed by the appellate or revisional authority, shall bedismissed (though limitation has not been set up as a defence) ifthe suit is brought to set aside such order or if the relief claimed isinconsistent with such order, provided that the plaintiff has haddue notice of such order.

(6) Any person shall be deemed to have had due notice ofan inquiry or order under this section if notice thereof has beengiven in accordance with rules made in this behalf by theGovernment.”

21. The respondents had filed reply to I.A.No.187381 of 2019and the additional documents which have been filed along with IA, theobjection has been taken with regard to said documents being filed afterlong delay. With regard to the documents filed by the State along with IAfollowing averments have been made in paragraphs 3.1 to 7:

“3.1 I respectfully state at the outset that these documents arepublic records and in public domain and consequently it was notdifficult for the State Government/Forest Department to have hadknowledge and/or access to these documents.

4. I say that the entire proceedings in the Trial Court and the HighCourt have been defended for the State by the Forest Departmentand surely the Forest Department knew of these documents andcannot feign ignorance at this belated stage.

A

B

C

D

E

F

G

H

A

5. I say that the affidavit does not even reveal why thesedocuments were not available with the Department and why werenot produced in the proceedings, specially considering that theCivil Suit in the Civil Court, Quepem, South Goa, Goa was filedway back in 1995 – almost quarter of a century.

6. Without prejudice to what is stated hereinabove, I say that thecopy of the undated Application of Vishnu Shivram Gaonkar(referred as Application dated 07.08.1975) when perused wouldshow that the claim in this application makes one plea- that themaps are not correct since land of Vishnu Shivaram Gaonkar hasbeen excluded from the map and recorded in the adjacent map“and that land is recorded in the name of Forest Department”.

B

C

7. I therefore respectfully submit that the application of 1975 hasno bearing with the suit property which is subject matter of theSLP and is totally irrelevant for consideration in facts andcircumstances of the present case.”

D

22. The respondents themselves claim that the documents whichhave been filed are public records and in public domain, only objectionraised by the respondents is that it was not difficult for the State to havehad knowledge and access to these documents. The veracity of thedocuments has not been disputed.

E

23. We have already noticed our order dated 10.12.2019 wherethese additional documents have already been accepted with directionto the respondents to file a reply to the application. The respondents donot dispute of having raised the objection after Revenue records werepublished mentioning “Forest Department” against the survey No.11/1,Fwhen the plaintiffs-respondents have withdrawn their application on20.10.1975, they cannot be allowed to object the Entry of ForestDepartment regarding survey No.11/1 as published in Form II.

24. The matriz document which is claimed to be the basis of rightsby the plaintiffs-respondents is not the document of title. The BombayGHigh Court in Fabrica da Igreja de N.s. de Milagres vs. Union ofIndia and others, (1995) 1 Bom CR 588 dealing with matriz documentlaid down following in paragraph 14:

“14………It is a settled position that a matriz document is neitheran instrument of title nor a source of possession and that theHorganisation of the “matriz predial” is a mere administrative exercise aimed at collecting tax revenues from the land. As suchno legal evidentiary value can be attributed also to the saidregistration for the purpose of establishing ownership title orpresuming possession on the land.”

25. More so, the plaintiffs ought to have agitated for their claimwith regard to survey No.11/1 and ought not to have withdrawn applicationdated 07.08.1975 before the Revenue Official. It is relevant to noticethat in the suit which was filed by the plaintiffs any mention of theproceedings regarding records of rights of survey No.11/1 undertakenearlier were not referred to and the mention of proceedings underRevenue Code, 1968 and Rules, 1969 is conspicuously absent. The trialcourt having dismissed the suit of the plaintiffs for declaring them ownerof survey No.11/1, we do not find any justification for continuance of thenames of the plaintiffs in survey No.11/1 of Village Sulcorna.

26. The State in its written statement has claimed that Sulcornahas declared as forest by Gazette Notification dated 11.01.1951 whichGazette was filed as Annexure AA-3 filed on the record which mentionsForests Sulcorna and the name of Village Sulcorna,the Court below hadnot placed reliance on the said Gazette only for the reason that the Gazettedoes not mention any survey number. Survey No.11 was situate in theForest area is further proved by the documents brought on the record bythe appellant i.e. Mining Lease which was granted w.e.f 22.11.1987 forsurvey No.2 of Village Curpem and survey No.11 of Village Sulcorna.Theconditions of the Lease Deed indicate that survey numbers on whichLease was granted situate in the Forest area,the relevant condition No.4of the Lease is as follows:

“To enter upon reserved forests.

4. Notwithstanding anything in this Schedule contained thelessee/lessees shall not enter upon any reserve forests included inthe said lands without previous sanction in writing of the DistrictForest Officer nor fell cut a use any timber or trees withoutobtaining the sanction in writing of that Officer nor otherwisethan in accordance with such conditions as the State Governmentmay prescribe.”

27. In the Chapter of General Provisions, Clause 15 requires “Leasestatus of forest land will remain unchanged”.

A

B

C

D

E

F

G

H

A

A28. The suit filed by the plaintiffs was to delete the name of ForestDepartment from survey No.11 which suit having been dismissed thename of the Forest Department continues with regard to surveyO.11/1.Even though Gazette dated 11.01.1951 does not mention surveyNo.11 but Forest was declared in Village Sulcorna and Survey No.11 isforest land is proved by other evidence. We are satisfied that the counter-Bclaim filed by the State deserved to be allowed and the name of theplaintiffs-respondents from survey No.11/1 deserved to be struck off.

29. Learned counsel for the respondents relying on the judgmentof the Bombay High Court at Goa in Writ Petition No.158 of 2005 (Smt.Maria Teresa Philomena D’Rocha Pegado vs. State of Goa andCothers), has submitted that Portuguese Colonial Mining Law was inforce prior to Goa becoming Union Territory and the State was ownerof proprietorship of all deposits of minor minerals etc. which was sonoted in the above case by the Bombay High Court. Learned counselfor the respondents has referred paragraphs 14 and 31 of the judgmentDwhich are to the following effect:

“14. It would be relevant to refer to Article 2 of Decree dated20.09.1906 which was a Portuguese Colonial Mining Law in forceduring the erstwhile regime, which reads thus:

“The proprietorship of deposits of metals and metalliferousEminerals, including bismuth, arsenic, antimony, sulphur, graphite,combustible minerals with the exception of peat, bituminoussubstances and mineral oils, precious stones, alkalis, phosphates,mica and amianthus belongs to the State; such beds cannot beprospected or worked without licence and concession byFGovernment in the terms of the present Decree.”

E

A perusal of Article 2 of the aforesaid decree would reveal thatall metals and metal-liferous minerals belong to the State and suchbeds cannot be prospected or worked without licence andconcession by the Government.

G

31. We are, therefore, of the considered view that in view of theprovisions of sub-section (2) of Section 14 and Section 36 of theLand Revenue Code, read with the provisions of Article 2 ofDecree dated 20.09.1906 which was a Portuguese Colonial MiningLaw, the right in the minor minerals vests solely in the StateGovernment and the State Government has all powers necessary H

for the purpose of enjoyment of such rights. We find that thisposition is fortified by the provisions of Section 24A of the saidAct, which is applicable to all minerals, including minor minerals.”

30. The above judgment of the Bombay High Court reiteratedthat it is the State which is the proprietor of all minerals beneath theland. There can be no dispute to the above proposition.For the purposeof this case what was relied by the appellant was that Mining Leasegranted for survey No.11, Lease conditions clearly mention the area asforest area with the requirement to maintain the status of land as theforest land. The grant of Lease by the State is not disputed by theplaintiffs-respondents also. We, thus, are of the considered opinion thatthe name of the Forest Department recorded in survey No.11, deletionof which has been refused and the name of plaintiffs-respondents in therecord in the manner and circumstances in which it came on the recordsof rights does not establish any claim of the plaintiffs-respondents anddefendant has clearly made out the case for allowing counter-claim.The additional evidence brought on record by the State before this Courtwhich has been accepted on record fully support the counter-claim ofthe defendant. We, thus, are of the view that counter-claim of thedefendant-appellant deserves to be allowed and the judgment of courtsbelow is to be modified to the above extent.