State of Goa Vs Narayan V. Gaonkar .

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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

Secretary, Panaji, Goa challenging the judgment and

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

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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

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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

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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

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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

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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,

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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

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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.

STATE OF GOA Vs NARAYAN V. GAONKAR .

STATE OF GOA Vs NARAYAN V. GAONKAR .