Gujarat High Court
Kikabhai Sankalabhai Rabari vs State Of Gujarat Served On Ld. G.P. & 2 on 7 March, 2014
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/13415/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13415 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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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 ?
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KIKABHAI SANKALABHAI RABARI....Petitioner(s)
Versus
STATE OF GUJARAT SERVED ON LD. G.P. & 2....Respondent(s)
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Appearance:
MR VIPUL S MODI, ADVOCATE for the Petitioner(s) No. 1
MR JAIMIN GANDHI, LD.ASST.GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA
GOKANI
Date : 07/03/2014
Page 1 of 35
C/SCA/13415/2011 CAV JUDGMENT
CAV JUDGMENT
1. This petition challenges the order dated November 03, 2010 passed by the 5th Additional Senior Civil Judge, Palanpur, below injunction application at Exhibit 5 in Regular Civil Suit No.54 of 2009, as also the order dated June 30, 2011 passed by the 5th Additional District (Adhoc) Judge, Palanpur, in Civil Miscellaneous Appeal No.52 of 2010.
2. The brief facts are as under :
2.1 The petitioneroriginal plaintiff (hereinafter referred to as 'the plaintiff') has preferred a suit for declaration and permanent injunction against the respondent defendants (hereinafter referred to as 'the defendants') restraining them from causing interference in the possession of the plaintiff in the suit land bearing Survey No.252 admeasuring 30 acres situated at village Kapasiya, Taluka Amirgadh, District Banaskantha.Page 2 of 35 C/SCA/13415/2011 CAV JUDGMENT
2.2 It is averred by the plaintiff that his father and after the death of his father, the family members continued to cultivate the suit land right from 1947 and in more pronounced way, from 196263 and, therefore, are the permanent holders and owners of the suit land on record. Even by adverse possession, the plaintiff is claiming to be the owner of the land. Apprehending the forcible dispossession at the hands of various departments, the suit came to be filed by the plaintiff seeking relief of declaration and permanent injunction.
2.3 The application for interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 came to be preferred by the plaintiff and the trial Court vide its detailed impugned order dated November 03, 2010, rejected such application for injunction. The main emphasis of the trial Court while rejecting the application for interim injunction was that the entire area has been declared protected forest by the Forest Page 3 of 35 C/SCA/13415/2011 CAV JUDGMENT Department. Under section 4 of the Indian Forest Act, 1927 (hereinafter referred to as 'the Act'), a notification also came to be issued on February 13, 1976, which includes the land bearing Survey No.252 declaring such area also as protected forest. There is nothing to indicate that under section 6 of the Act, any application had been made by the plaintiff before the Settlement Officer claiming the rights on the land in question. The Court also was of the opinion that subsequently on May 06, 1978, the State Government had issued a notification declaring the area as sanctuary for sloth bear named as "Jessore Sloth Bear Sanctuary". It is emphasised by the Court concerned that after the notification was issued, for making claim over the forest land, the plaintiff did not approach with substantiating documents to prove his claim before the Committee consisting of District Collector, District Development Officer and Deputy Conservator of Forest. The recommendation of such Committee ordinarily on Page 4 of 35 C/SCA/13415/2011 CAV JUDGMENT claim being made is sent to the State Government and if such land is required to be regularised, the same needs to be forwarded to the Central Government and only on obtaining permission from the Central Government, such land could be recognised. The Court, therefore, held that after once it was declared as "Wildlife Sanctuary", no right would continue even under section 9 of the Act. It is further held that except the Government, no private party would have any right to such land.
Certain offences against the plaintiff were also noticed and accordingly, a complaint had been lodged. In absence of any appeal pending before the Revenue Authority, it held that the Forest Act being a special Act, it would have overriding effect over all the general acts and thereby, no injunction has been granted. 2.4 Challenge was made by way of Civil Miscellaneous Appeal before the ld.Additional District Judge, who exhaustively dealt with the entire issue. On the point of adverse Page 5 of 35 C/SCA/13415/2011 CAV JUDGMENT possession, the first Appellate Court observed that the commencement of the adverse possession requires to be prima facie proved and uninterrupted possession of a person even for several years may not avail him the title. The Court after a detailed discussion did not believe the plea of adverse possession prima facie. The Court also noted a fact that against the present petitioner, his brother and his son, the allegations were made in a criminal complaint filed by the Range Forest Officer namely Mr.Iqbal that they have encroached upon the land which was a reserved forest land. Under the Indian Wildlife Act, 1972, Indian Forest Conservation Act, 1980, the alleged actions were the offences. In the result, the Court held that the plaintiff failed to prove prima facie long and peaceful possession, which could be said to be an adverse possession for a period of 30 years and, accordingly, dismissed the miscellaneous appeal.
Page 6 of 35 C/SCA/13415/2011 CAV JUDGMENT
3. Challenge is made to both these orders in the present petition by urging inter alia that both the Courts below misconstrued the issuance of notification under section 4 to nullify the right of the plaintiff over the disputed land. It is urged that an inquiry under section 6 is pending and no final decision has been taken as can be noted from the application dated December 15, 2010 made under the Right to information Act, 2005. It is further urged that the land in question cannot be seized by the Forest Department pending the inquiry for regularisation of the land occupied prior to the year 1980 as per various notifications and circulars. He further urged that the lands of other villages occupied prior to the year 1980 have been regularised and it is solely with an intention to harass the petitioner, the rightful ownership has been denied to him. The extracts of Village Form No.7/12 from the year 196263 to 198384 are brought on record to indicate that from the year 1962, the petitioner and his ancestors were in possession and cultivating the land in question. Page 7 of 35 C/SCA/13415/2011 CAV JUDGMENT There is a willful act on the part of the State in getting the place vacated. Not only by adverse possession from the year 1962 to 1984 the petitioner succeeded in proving, but, the issuance of notification by itself would not take away the right of the plaintiff. It is, therefore, urged that the Court must intervene under Article 227 of the Constitution of India and even, need be so, to exercise powers under Article 226 of the Constitution of India.
4. In response to the notice issued, the affidavit inreply is prepared by the State, where Mr.J.V. Vyas, Deputy Conservator of Forests, Banaskantha representing the respondent No.3 has contended that Regular Civil Suit is nothing but a counter blast to the action initiated by the Forest Department for evicting the plaintiff from the land in question. Both the Courts below have rightly not granted interim injunction in favour of the plaintiff. It is further contended that in performance of the duties under the Indian Forests Act, 1927 and Protection of Wildlife Act, Page 8 of 35 C/SCA/13415/2011 CAV JUDGMENT 1972, the offences have been registered against the plaintiff. It is also urged that time and again, the plaintiff made an attempt to grab the forest land and many steps have been taken to fail such attempts. It is further urged that it is not in dispute that the father of the plaintiff was doing an agricultural work since the year 1962 and the land of Survey No.252 as per the revenue record was in the name of the plaintiff's father. However, it is contended that the entries in the revenue record does not appear to be true, otherwise at the time of passing the resolution in the year 1962, the Government had allowed the forest land to all those persons who were carrying out agricultural activities, however, the name of the plaintiff was never reflected in the list of those persons. The said Survey No.252, according to the respondents, is owned by the Forest Department and in the Village Form Nos.7/12 and 6A, the name of the Forest Department clearly appears. By way of a notification, the forest area of the village Kapasiya is declared as a reserved forest land. Page 9 of 35 C/SCA/13415/2011 CAV JUDGMENT It is also contended that "after the survey, the serial numbers of notification of agricultural, forest and Cooperation Department of Government of Gujarat are AKH/87/IFA/1171/91071/5, from the date of 19.10.1971, till the survey number of Kapasiya village is 1, 14, 32, 79, 131, 152, 159, 166, 182, 187, 252, 309/2, 353, 420, 422 and 437 was declared as "Bhageni Jageri" area as per the Section 20 of the Forest Act, each provision was made in existence and hence, it was declared as "Reserved Forest". Thereafter, preparing the list of survey number of the Hakkpatra, the serial number of agriculture, forest and Cooperation Department of Government of Gujarat :
AK/s4376/FLD/1176/62103 since, it was declared as "Reserved Forest". The Notification number of Government of Gujarat of agricultural jungle and Cooperation Department being GHKA/65/78/WLP/ 2077/62041P, from the date 06.05.1978, it was declared as Wild life Sanctuary as per the Wildlife Protection Act, 1972.. ... Hence, the possession of the petitioner of 30 acres of land is not true."Page 10 of 35 C/SCA/13415/2011 CAV JUDGMENT
5. It is the contention of the respondent that once the Indian Forest Act and Forest Conservation Act are made applicable to the land of Survey No.252 situated at village Kapasiya, Taluka Amirgadh, except for aforestation of the forest land, the prior permission of the Indian Government is must. Once Jessore Wildlife Sanctuary has been declared by way of a notification, the forest land cannot be used for nonforest purpose. The attempt of commission of the alleged crime when was dealt with sternly by the Forest Department, the plaintiff has claimed his civil rights on the disputed land. However, both the authorities, according to the respondents, have rightly dealt with the issue and, therefore, nothing requires to be done about the same.
6. In the additional affidavit filed by the Deputy Conservator of Forests, it is alleged that the plaintiff has not made any application for the disputed land bearing Survey No.252 paiki as per the details submitted by the Project Page 11 of 35 C/SCA/13415/2011 CAV JUDGMENT Administrator, Integrated Tribal Suburb Project, Tribal SubPlan, Palanpur. Any dispute if is raised by the plaintiff, has to be submitted at the village level committee. However, on the basis of the report of the SubDivisional Committee and Deputy Collector, Data, no such dispute has so far been registered. It is further contended that in view of the provisions of the Forest Rights Act, 2006, the plaintiff can have right over the disputed land if he is having possession on the disputed land on December 13, 2005 and December 31, 2007. Since the plaintiff was not having possession over the disputed land on the said dates, the provisions of the Forest Rights Act would not be applicable in his case. Such land, according to the respondents, had been declared as forest under sections 4 of the Act and even under section 6 of the Act, the Forest Settlement Officer has also been appointed, but no procedure has been completed by the Forest Settlement Officer for all the 107 villages. Page 12 of 35 C/SCA/13415/2011 CAV JUDGMENT
7. The learned advocates for both the sides have been heard at length. Both the counsel have fervently and vehemently put their rival versions. Upon thus hearing both the sides and on examination of the materials on record, so also the orders of both the Courts below, what at the outset needs to be mentioned is the fact that the land in question is already a part of the Wildlife Sanctuary known as "Jessore Wildlife Sanctuary" for sloth bears. The land bearing Survey No.252 situated at village Kapasiya, Taluka Amirgadh, District Banaskantha, forms a part of the original notification, whereby such area was declared as wildlife sanctuary. The Court must also take note of the fact that the provisions of the Act would apply to the land in question. The said area was also declared as "reserved forest" and thereafter, the "wildlife sanctuary". In such a situation, in a claim made over the land owned by the Forest Department, there are alternative mechanisms set up under the law itself. It is to be noted that at no point of time, the plaintiff resorted to any such Page 13 of 35 C/SCA/13415/2011 CAV JUDGMENT alternative mechanism. In the additional affidavit, it is also contended by the Forest Department that the possession on the disputed land on the specific dates shall have to be established for getting any rights under the Forest Rights Act. In absence of any such position on the stipulated dates, neither under the Forest Rights Act nor under the provision of section 6 of the Act, where the Forest Settlement Officer has been appointed, any attempt has been made by the plaintiff to ventilate the grievances. In this background, the contention of the plaintiff is noted that to establish the right over 30 acres of land bearing Survey No.252, it has shown revenue record, wherein the name of the father of the plaintiff is indicated from the years 1962 to 1985. Initially, such use of the land by the father of the plaintiff was without any permission. It is after the land was transferred to the Forest Department that the Revenue Authorities had stopped making village forms/Panipatrak. After such land was transferred to the Forest Department, it was declared as a Page 14 of 35 C/SCA/13415/2011 CAV JUDGMENT reserved forest and entry No.632 was posted on June 22, 1994 in the record of rights. For cultivating wheat and other grains, water was drawn from the canal by the plaintiff and reliance was placed on such documents. Emphasis on the part of the plaintiff was that the map, drawings, etc. prepared by the Forest were defective and though the plaintiff is the owner of the land in question by adverse possession, he was never shown as the one after the Forest Department took over such land.
8. Mr.Modi, learned counsel has relied on the decision of the Allahabad High Court in the case of State of U.P. v. Mahant Avaidh Nath, reported in AIR 1977 ALLAHABAD 92, wherein the High Court was dealing with the rights of the plaintiff who was a Mahant of the temple situated on the land, which was declared as a "reserved forest" by virtue of the notification. It was the case of the plaintiff that such land did not constitute forest and the same could not be declared as "reserved forest". The Court while deciding such Page 15 of 35 C/SCA/13415/2011 CAV JUDGMENT plea had observed that the claim gets extinguished under section 9 of the Act in respect of rights in forest land or waste land falling under section 3 of the Act. It is further observed, "There is a distinction between acts done within the jurisdiction where exercise of power is made in an irregular manner, and those where the act itself is beyond jurisdiction and ultra vires."
8.1 In the case before the Allahabad High Court, before the provisions of section 9 of the Act could be attracted, it was held that the Government needed to establish that the land in dispute was either forest land or waste land within the meaning of section 3 of the Act and if section 3 does not apply, sections 6, 7 and 9 are equally not attracted and any proceedings taken under the Act are ultra vires and orders passed, a nullity.
8.2 This judgment further says that any failure to file objections with regard to the land not Page 16 of 35 C/SCA/13415/2011 CAV JUDGMENT falling under section 3 of the Act is not waiver of right and section 9 does not operate, as the objection to jurisdiction cannot be waived. It is contended by the learned advocate for the petitioner that to attract the provisions of the Forest Act, two conditions are imposed : (i) that the land is a forest land or waste land and (ii) the same is the property of the Government.
8.3 Section 3 of the Act provides that the State Government may constitute any forest land or waste land or any other land not being the land for the time being comprised in any holding or grove or in any village Abadi which is the property of the Government or over which the Government has proprietary rights or to the whole or any part of the forest produce of which the Government is entitled, a reserve forest in the manner provided under the Act. And, thus, this provision bestows powers upon the Government to constitute any land as forest. In other words, section 3 of the Act Page 17 of 35 C/SCA/13415/2011 CAV JUDGMENT applies to the forest land and waste land; and section 4 empowers the State Government to issue notification declaring that it has decided to constitute such land as a reserved forest. Section 6 provides for issuance of a proclamation, specifying the situation and limits of the forest land which it is proposed to declare as a reserved forest. Subsection
(c) of section 6 of the Act provides for three months' period for preferring a claim by persons who would claim any right under section 4 or section 5 of the Act. And, section 7 of the Act requires the Forest Settlement Officer to conduct inquiry on the claims preferred under section 6. Section 9 provides that if no claim is preferred within the period prescribed, the rights of the claimant shall get extinguished. In wake of these provisions, the High Court held that the claim that gets extinguished under section 9 is in respect of the rights in the forest land or waste land falling under section 3. However, if the land does not fall under section 3, there cannot be Page 18 of 35 C/SCA/13415/2011 CAV JUDGMENT any question of extinguishment of right. Therefore, it would be necessary for the Government to establish that the land in question was either a forest land or waste land within the meaning of section 3 of the Act, for it to say that if the claim is not made within the stipulated period, the right would get extinguished and naturally when the provision of section 3 of the Act would not apply, the other provisions of the Forest Act also would not be attracted at all.
8.4 In the case of Dallumiya Lalmiya Malek v. State of Gujarat, reported in 1971 GLR 668, the Division Bench of this Court held that in absence of any provision as to the nature of suit, which has to be filed, Civil Court's jurisdiction cannot be barred by any assumption. There has to be express or by necessary implication provision to exclude Civil Court's jurisdiction. It further says that even if limited right of possession was established without establishing the right of Page 19 of 35 C/SCA/13415/2011 CAV JUDGMENT the plaintiff, Civil Courts would be able to protect this narrow right by injunction and the relief if it is not inconsistent with the order of the formal inquiry as contemplated under section 37(2) of the Bombay Land Revenue Code, could always be granted after leading proper evidence before the Civil Court.
It is insisted upon by the plaintiff herein that not only possessory right but the title of the father of the plaintiff has been wellestablished and, therefore, that would give rise to the entitlement of the relief by the Civil Court.
8.5 Further reliance is placed on the decision of this Court in the case of Swarupkunvarba Balvantsinh Udavat v. Pratapsinh Nathusinh Jadeja, reported in 2000 (4) GLR 3644, whereby the Court has held that the Appellate Court would interfere only when the trial Court has interpreted unreasonably or capriciously. Merely because the Appellate Court could have Page 20 of 35 C/SCA/13415/2011 CAV JUDGMENT taken a different view would be no ground to interfere with the discretion exercised by the trial Court.
It is also observed therein that whether there is any bona fide contest between the parties and fair point for trial, for grant of injunction, the Court needs to examine the merits of the case very closely.
It is urged by the plaintiff that what all the Courts needed to see is that on the face it, the plaintiff applying for injunction had a bona fide contest with the otherside. It was not required to decide what is correct answer to be given to the question in the hearing of the suit, but merely whether there is a fair point for trial.
8.6 The Apex Court in the case of State of Gujarat v. Gujarat Revenue Tribunal and others, reported in AIR 1980 SC 91, while dealing with Bombay Taluqdari Tenure Abolition Act in Bombay Personal Inams Abolition Act, Page 21 of 35 C/SCA/13415/2011 CAV JUDGMENT 1952, has explained the expression "all waste lands and all uncultivated lands" and also held that vesting is of land put to public use and not of private land. The Court held thus :
"12. Turning now to S.6 of the Taluqdari Abolition Act and S. 7 of the Personal Inams Abolition Act, which are identical in terms, the first thing to be noticed is that they deal with specific properties alone, which are enumerated therein and in which all the rights of the taluqdars or inamdars are completely extinguished.
Section 6 of the Taluqdari Abolition Act reads : "6. All public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bad of the sea and of harbours, creeks below high water mark, and of rivers, streams, nallas, lakes, wells and tanks, and all canals, and water courses, and all standing and flowing water, all unbuiltvillage site lands, all waste lands and all uncultivated lands(excluding lands used for building or other nonagricultural purposes), which are not situate within the limits of the wantas belonging to a taluqdar Page 22 of 35 C/SCA/13415/2011 CAV JUDGMENT in a taluqdari estate shall except in so far as any rights of any person other than the tahuqdar may be established in and over the same and except as may otherwise be provided by any law for the time being in force, vest in and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the general or special orders of the Commissioner, to dispose them of as he deems fit, subject always to the rights of way and of other rights of the public or of individuals legally subsisting.
Explanation : For the purposes of this section,land shall be deemed to be uncultivated, if it has not been cultivated for a continuous period of three years immediately before the date on which this Act comes into force".
(Emphasis supplied)
13. On a fair reading of the section, it would be evident that the vesting is in respect of properties which could be put to public use. It leaves the private properties of the taluqdar untouched. The legislative intent is manifested by clear enumeration of Page 23 of 35 C/SCA/13415/2011 CAV JUDGMENT certain specific properties not situate within the wantas of a taluqdar. It begins by specifying 'All public roads, lanes, paths, bridges, etc.' and ends up with 'all village site lands all waste lands and all uncultivated lands,' and these being public properties situate in a taluqdar's estate must necessarily vest in the Government because they are meant for public use. In spite of vesting of such property in the Government, however, the conferral of the rights of an occupant on a taluqdar under S. 5 (1) (b) in respect of the lands in his actual possession, is saved.
14. Pausing here, it is fair to observe that the words in parenthesis 'excluding lands used for building or other non agricultural purposes', exemplify the intention of the legislature not to deprive a taluqdar of such land, even though such property is uncultivated land, due to its inherent character as well as by reason of the Explanation."
The Court also defined the expression "waste lands" as under :
"16. Now, the expression 'waste lands' has a welldefined legal connotation. It means Page 24 of 35 C/SCA/13415/2011 CAV JUDGMENT lands which are desolate, abandoned, and not fit ordinarily for use for building purposes. In Shorter Oxford English Dictionary, 3rd Edn. Vol. 2, p. 2510, the meaning of the word 'waste' is given as : "1. Waste or desert land, uninhabited or sparsely inhabited and uncultivated country; a wild and desolate region: 2.A piece of land not cultivated or used for any purpose, and producing little or no herbage or wood. In legal use, a piece of such land not in any man's occupation but lying common. 3. A devastated region".
8.7 The decision rendered in the case of Ishwarlal Girdharlal Joshi etc. v. State of Gujarat and another, reported in AIR 1968 SC 870, by the Apex Court was in respect of land acquisition case where the notification under section 4 of the Act was issued by the Government as certain lands were noted for public purposes. What amounted to arable land for the purpose of compensation has been discussed, held and observed by the Apex Court in the following paragraphs :
Page 25 of 35 C/SCA/13415/2011 CAV JUDGMENT
"23. Mr. Justice Fitzgibbon observed that because the land was not in grass for 20 years the defendant could treat it as arable, that is, cultivable by him. The contrast between grassland and arable is thus established but it does not rule out that arableland does not include land actually cultivated. As a matter of fact the passage from Chatterton V. C. is correctly understood in Stroude's Judicial Dictionary and it gives the meaning of arable as not only land actually ploughed upon in tillage but also land capable or fit to be so. In this connection it is useful to see that in the Agricultural Holdings Act, 1923 (13 and 14 Geo 5 c. 9) 'arable land' is defined as not including land in grass, and in the second schedule to the Agriculture Act, 1947 (10 and 11 Geo 6 c. 48) special direction may be given by the Minister requiring the ploughing up of any land consisting of permanent pasture, and the land is deemed to be arableland and to have been arableland at all material times. It is thus clear that by arableland is meant not only land capable of cultivation but also actually cultivated.It is not arable not because it is cultivated but because it is something else such as waste, pasture, ancient meadow etc. Indeed the fact that the land is Page 26 of 35 C/SCA/13415/2011 CAV JUDGMENT actually cultivated demonstrates its nature as arableland.
24.All this discussion by us was necessary to dispell the inferences drawn from dictionaries and reports of cases from England and Ireland, but the safest guide, as always, is the statute itself which is being considered. In this connection we may first turn to the Land Acquisition Act of 1870 and read S. 17 as it then stood :
"17. Power to take possession in cases of urgency.
In cases of urgency, whenever the Local Government so directs, the Collectors (though no such reference has been directed or award made) may, on the expiration of fifteen days from the publication of the notice mentioned in the first paragraph of section nine, take possession of any waste or arableland needed for public purposes or for a Company.
Such land shall thereupon vest absolutely in the Government free from all encumbrances.
The Collector shall offer to the persons interested compensation for the standing crops and trees (if any) on such land; and Page 27 of 35 C/SCA/13415/2011 CAV JUDGMENT in case such offer is not accepted, the value of such crops and trees shall be allowed for in awarding compensation for the land under the provisions herein contained."
It will be noticed that compensation was then payable for standing crops and trees (if any). There can be no question of crops on waste land for the crops can only be on arable lands because if crops could grow or were actually grown the land would hardly be waste. The words in parenthesis obviously indicate that land may have crops or be fallow and compensation was payable for crops if there were crops."
8.8 The decision of the Apex Court rendered in the case of Raja Anand Brahma Shah v. The Sate of Uttar Pradesh and others, reported in AIR 1967 SC 1081, needs reference here wherein again on the issue of "waste land", the notification issued under section 4 of the Act was questioned where the declaration was for the public purpose. The Court defined "waste land" or "arable land" as under :
Page 28 of 35 C/SCA/13415/2011 CAV JUDGMENT
"5. .. ..we are of the opinion that the land sought to be acquired is not 'waste land' or 'arable land' within the meaning of S. 17 (1) or (4) of the Act. According to the Oxford Dictionary 'arable land' is "land which is capable of being ploughed or fit for village".In the context of S. 17 (l) of the Act the expression must be construed to mean "lands which are mainly used for ploughing and for raising crops" and, therefore, the land acquired in this case is not arable land. Similarly, the expression "waste land" also will not apply to 'forest land'.According to the Oxford Dictionary the expression "waste" is defined as follows:
'Waste(from Latin, vastuswaste, desert, unoccupied); Uncultivated, incapable of cultivation or habitation; producing little or no vegetation; barren, desert.".
The expression "waste land" as contrasted to "arable land" would, therefore, mean 'land which is unfit for cultivation or habitation, desolate and barren land with little or no vegetation thereon". It follows, therefore, that S. 17 (1) of the Act is not attracted to the present case and the State Government had, therefore no authority to give a direction to the Collector to take possession of the lands Page 29 of 35 C/SCA/13415/2011 CAV JUDGMENT under S. 17 (1) of the Act. In our opinion, the, condition imposed by Section 17 (1) is a condition upon which the jurisdiction of the State Government depends and it is obvious that by wrongly deciding the question as to the character of the land the State Government cannot give itself Jurisdiction to give a direction to the Collector to take possession of the land under S. 17 (1) of the Act. It is well established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact the High Court is entitled, in a proceeding of writ of certiorari to determine, upon its independent judgment, whether or not that finding of fact is correct. See R. v. Shoreditch Assessment Committee, (1910) 2 KB 859 and White and Collins v. Minister of Health, (1939) 2 KB 838."
8.9 Reliance is also placed on the decision in the case of Dinshawji Bamanji Dalal and others v. State of Gujarat and another, reported in 1970 GLR 193, wherein a challenge was made to the order of the Gujarat Revenue Tribunal, which had dismissed the appeal in the inquiry under section 37(2) of the Bombay Land Revenue Page 30 of 35 C/SCA/13415/2011 CAV JUDGMENT Code on the ground that the petitioner's right in relation to mines and minerals had extinguished by Bombay Talukdari Tenure Abolition Act, 1949. The Court also discussed in this judgment from the decision of the Apex Court in the case of Raja Anand Brahma Shah (supra) and Ishwarlal Girdharlal Joshi (supra), so also the decision of Division Bench of this Court reported in 5 GLR 924. What amounts to the expression "waste land" to hold that the "waste land" would mean lands which are desolute, deserted, uninhabitated and uncultivated and a building site land would not be regarded as a waste land as it was not being used presently. It also held that the test to be applied was not that it was incapable of cultivation but that it was unfit for any use, so it means deserted, uncultivable waste and in that view of the matter, it held that the valuable grass lands were not held to be waste lands.
Page 31 of 35 C/SCA/13415/2011 CAV JUDGMENT 8.10 This Court while exercising powers under Article 227 of the Constitution of India need not interfere with the findings of the trial Court when, in fact, there is neither perversity nor any substantial error in treatment to the issue in question which goes to the root of the matter. Merely because this Court can take a different view, is no ground for interference in the discretionary order of the Courts below, unless of course it is passed capriciously and ignoring the law on the subject and in complete disregard to the facts under consideration. Otherwise interference in the order is surely circumscribed by the limitation as time and again pronounced by the Apex Court. In the present case, none of those elements exists for this Court to interfere at this stage when the trial is yet to take place.
9. In the present case, both the trial Court and the first Appellate Court on the basis of the evidence presented before them consistently held against the plaintiff, despite the evidence Page 32 of 35 C/SCA/13415/2011 CAV JUDGMENT showing the name of the father of the plaintiff in the earlier revenue records. When the reason for negating the claim of the plaintiff is essentially that consequent upon the notification issued by the Forest Department declaring the land as "Reserved Forest" and thereafter, as a "wildlife sanctuary", the entire complexion would change. With an exhaustive discussion of the facts and the law, when the Courts below have not found the case of the plaintiff prima facie nor have they found the balance of convenience tilted in favour of the plaintiff, they have denied the grant of interim injunction. When both the Courts below have concurrently held against the plaintiff, unless there is some glaring evidence contrary to the one placed before the Courts below, there is no reason for this Court to intervene or interfere with the impugned orders at this stage. However, from the affidavitin reply of the respondent No.3 also, it transpires that when no dispute is raised by the defendant with regard to the revenue record standing in the name of the father of the plaintiff from the year Page 33 of 35 C/SCA/13415/2011 CAV JUDGMENT 1962 to 1985, the alternative remedy available with the plaintiff can be resorted to. In fact, on completion of final hearing of the present petition, the learned advocate for the plaintiff Mr.Modi had also sought for some time to explore such possibility.
10. For the foregoing reasons, the present petition fails and is, accordingly, dismissed. Rule is discharged with no order as to costs. 10.1 The Court at this stage must note the fact that the challenge in this petition is neither made to any notification nor is this Court exercising the original jurisdiction. It is in exercise of supervisory jurisdiction under Article 227 of the Constitution of India that the questions raised are examined. 10.2 It is also clarified that the claim of the plaintiff is yet to be adjudicated upon before the trial Court and, therefore, nothing further requires to be opined at this stage, except Page 34 of 35 C/SCA/13415/2011 CAV JUDGMENT clarifying that all possible legal recourse alternatively made available by virtue of the provisions of law are open to the plaintiff to pursue.
10.3 The Court is of the opinion that rejection of this application for injunction shall not bar the plaintiff to take recourse to such alternative remedy available to the plaintiff and if any, such application is made either under the Indian Forests Act, 1927 or under the Forest Rights Act, 2006, the concerned authority shall decide such application without, in any manner, being prejudiced by any of the observations made in this order as well as any of the observations made by the Courts below in the impugned orders.
(MS SONIA GOKANI, J.) Aakar Page 35 of 35