Gujarat High Court
Jamsherkhanji T Tunvar (Deceased Thru ... vs State Of Gujarat on 9 November, 2023
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4063 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
======================================
1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
======================================
JAMSHERKHANJI T TUNVAR (DECEASED THRU HIS LEGAL HEIRS)
& 5 other(s)
Versus
STATE OF GUJARAT & 6 other(s)
======================================
Appearance:
ABATED for the Appellant(s) No. 2.2.1,2.4,3.2,3.7,5.1
DECEASED LITIGANT for the Appellant(s) No. 1,2,2.2,3,4,5
MR SV RAJU(688) for the Appellant(s) No. 2.3.3,3.4
MR. BHADRISH S RAJU(6676) for the Appellant(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,2.1,2.1.1,2.1.12,2.1.13,2.1.14,2.1.15
,2.1.16,2.1.17,2.2.2,2.2.3,2.2.4,2.2.5,2.2.6,2.3,2.3.1,2.3.1.1,2.3
.1.2,2.3.1.3,2.3.1.4,2.3.2,2.3.4,3.1,3.3,3.4.1,3.4.2,3.5,3.6,3.8,3.
Page 1 of 66
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NEUTRAL CITATION
C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023
undefined
9,4.1,4.2,4.3,4.4,5.2,5.3,5.4,6
DR POOJA ASHER, ASSISTANT GOVERNMENT PLEADER for the
Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 09/11/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This appeal, under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code, 1908"), is filed challenging the judgment and decree dated 31.03.1995 passed by Civil Judge (Senior Division), Himmatnagar, in Special Civil Suit No. 58 of 1988, whereby suit to recover Rs.28,14,000/- from the respondent - State with interest at the rate of 12% per annum from the date of suit towards the value of stone, metals, etc. used from Survey Nos. 71 and 294 of Village Babsar in Dharoi Irrigation Project, came to be dismissed.
2. From the order-sheet, it appears that appeal came to be admitted vide order dated 19.08.1996. As such, on admission of appeal, writ thereof goes to the trial Court so as to see that the record is preserved and paper-book is prepared. From the record of this case, it appears that vide order dated 16.12.2015, office was directed to call for Record and Proceedings so as to reach this Court on or before 06.01.2016. Paper-book received in this Court contains only Page 2 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined the plaint, address purshis, written statement, issues, reply to Exhibit-39 application filed by respondent - defendant State vide Exhibit-120, judgment and decree only. Vide Civil Application No. 2386 of 2016 (for bringing documents on record) in First Appeal No. 4063 of 1995 dated 24.02.2016, duly affirmed on that date, came to be filed with the Registry of this Court, requesting the Court to allow the application and to bring Exhibits-4, 38, 39, 41, 45, 46, 48 to 51, 53, 59, 65 to 79, 90, 91, 92, 96, Mark 96/1, 97, 100, 102, 103, 105, 108, 115, 120 and other documents at Annexure-A to the said application as claimed. On 01.12.2016, this Court, in the aforesaid Civil Application, passed the following order:-
"1. From the averments made in the memorandum of application, it appears that at the time when the record and proceedings of Special Civil Suit No.58 of 1988 were received from the trial court, the following documents were missing :-
Exh.4 : D.E. List of plaintiffs Exh.38 : D.E. List of plaintiffs Exh.39 : Application for Production of documents from the custody of deft and order dt.31/03/1995 Exh.45 : D.E. List of plaintiffs Exh.41 : Deposition of P.W.1 - Nizamkhanji Hathikhanji Tunvar Exh.46, 48 to 51, 53, 59, 65 to 79 : Documentary evidence proved by plaintiffs Exh.90 : D.E. List of plaintiffs Exh.91, Mark 90/1 : Account Book and Its Copy Page 3 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined Exh.96 : D.E. List of plaintiffs Mark 96/1 : Certified Copy of latter of Collector dt. 21-06- 1963 Exh.92 and 97 : Depositions of P.W.2 and 3 of plaintiff Exh.100, 102, 103, 105, 108 and 115 : Depositions of Witness No.1 to 6 of Defendant Exh.120 : Reply of Exh.39 dt.06-10-94
2. Under the circumstances, registry to ascertain the correctness of the aforesaid facts from the original record and verify as to why such documents have not been received alongwith the record.
S.O. to 15th December, 2016."
Pursuant thereto, Principal Senior Civil Judge, Sabarkantha at Himmatnagar, stating that the original record of the case consisting of only 'A' and 'B' files with index and paper-book were forwarded to the District Court vide letter No. 1 of 2016 dated 01.01.2016. That upon receipt of the writ of this Court, the concerned Court-keeper has given a certificate with letter No. 690 of 2016 dated 14.12.2016, indicating that "C" and "D" files of the said suit have been destroyed on 07.06.2008, as per Chapter 24 para 490 (I) of the Civil Manual and due to lapse of 12 years period as no writ was there in the record regarding appeal. Since original documents were not available, this Court called upon learned Assistant Government Pleader to verify the set of documents submitted by the applicants for the purpose of placing them in the Record and Page 4 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined Proceedings. As recorded in an order dated 26.04.2017, the then learned Assistant Government Pleader, under instructions, stated that the respondents have verified Exhibits
- 38, 39, 41, 45, 46, 48 to 51, 65 to 79, 90, 96, Mark 96/1, 97, 100 and 102. In so far as the other documents are concerned, it appears that the concerned officer has not been able to verify those documents as they do not have the copies thereof. The Court, thereafter, allowed the application in terms of Para 7A, which reads as under:-
"7(A) Be pleased to allow the present application and to bring Exhibit-4, 38, 39, 41, 45, 46, 48 to 51, 53, 59, 65 to 79, 90, 91, 92, Exhibit-96, Mark 96/1, Exhibit-92 and 97, Exhibit-100, 102, 103, 105, 108, 115, 120 and other documents at (Annexure-A Colly.) on record as part of record and proceedings;"
It was also ordered that in case the respondent is in a position to show that the documents other than those admitted by them are not correct copies of the original documents, it is open for them to point out the same during the course of hearing of main appeal.
2.1 Be that as it may, along with the Civil Application, certified copies of almost all depositions of the witnesses of both the sides except certified of deposition of defendant's witness No.6, have been produced by the appellants by way of the said Civil Application. The very fact that applicant was having certified copies of the depositions, appellants might have applied even certified copies of the document and if not, Page 5 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined he may have those documents, if he possess certified copies of depositions of the witnesses which he produced along with the aforesaid Civil Application. Again, not entering into the issue with regard to destroying the record for want of pending writ by the trial Court, it calls for a thorough inquiry by the Registrar General as to why pending writ is not issued by the Registry of this Court and if issued, why it has not reached the trial Court and who is responsible for the same, as this Court is deprived of all the Record and Proceedings tendered before the trial Court for the re-appreciation and reconsideration of the evidence led before the Court in this appeal. This is not the first case this Court has come across where original record is destroyed for the want of pending writ being issued to the trial Court. As such, under the Rules, as soon as appeal is admitted, pending writ is to be issued to the trial Court so as to prepare the Record and Proceedings and the paper-book, which is missing in this case also. However, since certified copies of depositions are on record and certain documents, which are not even disputed by other side, are on record, let us make an attempt to determine this appeal based on whatever undisputed material is available on record.
2.2 The appellants herein, by filing the aforesaid suit, claimed to be Jagirdars of Village Babsar, Taluka: Idar, District:
Sabarkantha. On coming into force of The Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953, (hereinafter referred to as "the Act, 1953"), the rights of the appellants - plaintiffs in the Jagir village were extinguished. According to the case of the appellants - plaintiffs, inquiry was held by the Page 6 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined Jagir Abolition Officer, Sabarkantha, as to the question whether the said Jagir was proprietary or non-proprietary, and in the said inquiry, by order No. JHR-COMP.SR-25 dated 13.09.1956, it was held that Babsar Village is a 'proprietary Jagir village'. The said order came to be passed under Section 2(4)(i) of "the Act, 1953". It is further claimed that the appellants - plaintiffs also filed an application for compensation under Section 13 read with Section 11 of "the Act, 1953" for abolition of the Jagir. The Special Deputy Collector for Land Tenure Abolition Act, Sabarkantha district, after holding an inquiry, passed an order in Compensation Case No. 61/H dated 20-02-1960 and awarded compensation as laid down in Section 11 of "the Act, 1953". The appellants - plaintiffs also claimed compensation in respect of the abolition of rights in mines and minerals existing under Survey Nos. 71 and 294 of Village Babsar. In the aforesaid inquiry conducted, the Mamlatdar deposed to that the subsisting rights of the appellants - plaintiffs in the mines and minerals are saved under Section 10 of "the Act, 1953", and agreeing with the Mamlatdar, the claim for compensation of rights in mines and mineral products was not accepted.
2.3 It is further the case of the appellants - plaintiffs that, in the year 1972, the Public Works Department, in spite of the subsisting rights of the plaintiffs in respect of mines and minerals (stone, metals, etc.), started taking stones and metals for the construction of Dharoi Irrigation Project without the permission of the plaintiffs. Thus, the appellants - plaintiffs submitted an application to the Collector, Sabarkantha, on 11.10.1972 to restrain the Public Works Department not to Page 7 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined take or make use of the stones and metals and to order to pay the price for the same to the ex-Jagirdars. Pursuant thereto, Collector, Sabarkantha, issued instructions to the Executive Engineer, Dharoi Irrigation Project, to keep the accounts for mines and minerals taken from Survey Nos. 71 and 294 of Village Babsar and to inform him in what manner it is managed.
2.4 Thereafter, Collector, Sabarkantha, issued notice dated 15.03.1974 to the appellants - plaintiffs to hold inquiry in respect of their rights over mines and minerals situated in Survey Nos. 71 and 294 of Village Babsar. They submitted their reply on 24.09.1974, which was registered as Case No. JHR -
Mines - Minerals - Inquiry No. 11 of 1974. Thereafter the Mamlatdar, Idar, on 07.09.1979, issued notice to one of the plaintiffs as the Manager of Jagir of Babsar Village, informing him that the inquiry about the rights in Survey Nos. 71 and 294 in Village Babsar is to be held. Mamlatdar, Idar, after recording evidence of one of the plaintiffs and Deputy Mamlatdar, Vadali, Taluka: Idar, passed an order dated 12.11.1979, holding that the rights over mines and minerals in Survey Nos. 71 and 294 of the Jagirdars are not acceptable but that they belong to the Government. It is claimed that the said order was passed under Section 37(2) of the Bombay Land Revenue Code, 1879, (hereinafter referred to as "the Code, 1879").
2.5 That being aggrieved by the said order of the Mamlatdar, Idar, one of the plaintiffs preferred an appeal bearing No. TEN.A.A.34/1980 before the Gujarat Revenue Tribunal at Ahmedabad on 15.01.1980, which was allowed and Page 8 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined the judgment and order passed by the Mamlatdar was set aside and the matter was sent back to him to hold a fresh inquiry after issuing notices to all the parties and also to the State Government and then to decide the matter in light of the observations made in the said judgment dated 05.03.1987. On remand also, after holding inquiry, Mamlatdar, arrived at a conclusion that the plaintiffs have no right over the mines and mineral products in Survey Nos. 71 and 294 of Village Babsar. The plaintiffs had, therefore, preferred an appeal before the Gujarat Revenue Tribunal bearing No. TEN.A.A. 119/1981, which came to be allowed and the judgment and order passed by the Mamlatdar, Idar, was set aside, holding that the rights over the mines and mineral products in disputed lands bearing Survey Nos. 71 and 294 of Village Babsar, belongs to the plaintiffs and not to the State Government. The said order came to be passed on 27.03.1985, which was communicated to the advocate of the plaintiffs on 04.04.1985.
2.6 That in view of the instructions issued to the Executive Engineer, Dharoi Irrigation Project, to keep the accounts of mines and mineral products taken from Survey Nos. 71 and 294 of Village Babsar, the plaintiffs gave application dated 13.02.1986 to the Collector, Sabarkantha, to give accounts within 10 days of the mines and minerals taken for Dharoi Irrigation Project by the Public Works Department of the Gujarat State. As no reply was given to the plaintiffs, again on 17.03.1986, an application was given to the Collector, Sabarkantha, to furnish the accounts of the mines and mineral products taken from the aforesaid survey numbers but in vain.
Page 9 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined It is further asserted in the suit that the State of Gujarat started the construction of Dharoi Irrigation Project in or around the year 1972 and for that purpose, Public Works Department of State of Gujarat started taking stones, metal, etc. for the construction of Dharoi Irrigation Project from Survey Nos. 71 and 294 of Village Babsar without the permission of the plaintiffs. It is further asserted that the rights over the mines and minerals in Survey Nos. 71 and 294 of Village Babsar are of the ownership of the plaintiffs and consequently, stones and metals, etc. were also of the ownership of the plaintiffs.
2.7 It is further stated that defendant has not paid anything for stones and metals and any other minerals taken from Survey Nos. 71 and 294 to the plaintiffs. It is further asserted that the plaintiffs being owners of the mines and mineral products in Survey Nos. 71 and 294 of Village Babsar are entitled to recover the market price of material taken by the defendant.
2.8 It is further claimed that the quantity of stones, metals, etc. from Survey Nos. 71 and 294 of Village Babsar are used in Dharoi Irrigation Project i.e. Dyke Nos. 1, 2, 3, 4, Machinery Dam, Left bank Canal, head regulator of left bank canal, earthen dam and other structures, which according to plaintiff's estimate, is approximately 1,50,000 CMT and price per CMT is Rs.7/- only. It is claimed that defendant had kept an account of quantity of stones and minerals, etc. taken from Survey Nos. 71 and 294 of Village Babsar. The plaintiffs thereby gave notice to defendant to produce the accounts of Page 10 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined the quantity used.
2.9 The market price of the stones and metals, etc. taken from Survey Nos. 71 and 294 and used in Dharoi Irrigation Project is Rs.10,50,000/-. It is further claimed that the defendants had taken the stones and metals, etc. from Survey Nos. 71 and 294 without the permission of the plaintiffs and had not paid the market price thereof and hence, cause of action has arisen for the suit. Therefore, it is claimed that the plaintiffs are entitled to recover Rs.10,50,000/- as market price of stones and metals, etc. and Rs.17,64,000/-, as interest at the rate of 12% per annum from the year 1973 i.e. total amount of Rs.28,14,000/-.
3. On summons being served in the suit, respondent - defendant filed written statement vide Exhibit-15 contending that suit is not true and tenable. Though it was admitted that Jagir was proprietary Jagir, the rights of the plaintiffs were extinguished under "the Act, 1953". As such, passing of an order by Special Deputy Collector for compensation is also not disputed. However, in the year 1972, the Public Works Department started taking stones and metals for Dharoi Irrigation Project without permission of the plaintiffs, even writing of an application dated 11.10.1972 to the Collector by the plaintiff to restrain the Public Works Department to take stones out of those survey numbers is also denied.
3.1 It is claimed that the ownership of the disputed land was of the Public Works Department, there was no necessity for permission of the Jagirdar or anybody else. It is further Page 11 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined claimed that any inter-departmental correspondence does not create any right in favor of anyone. Though passing of orders under the different provisions of "the Act, 1953" are not disputed, it was asserted that rights and ownership over the mines and mineral products is/was of the Government. It is further claimed by the State that right of ownership is vested with the Government and not with the plaintiffs, and therefore, they are not entitled to receive any amount for the quantity used by the Public Works Department in Dharoi Irrigation Project.
In short, the respondent - defendant claimed that even if any rights in the mines and mineral products are there of the Jagirdar, it is extinguished on passing of "the Act, 1953"
and amendment thereto. Therefore, respondent - defendant prayed that the suit be dismissed.
4. Heard Mr. Bhadrish Raju, learned advocate for the appellants as also Ms. Pooja K. Asher, learned Assistant Government Pleader for the respondent - State.
4.1 Mr. Bhadrish Raju, learned advocate for the appellants, submitted that appellants were Jagirdars of Babsar village, including Survey Nos. 71 and 294 thereof, since over two centuries and were having rights over all mines and minerals in the soil as a proprietary Jagirdar. According to his submission, on coming into force of "the Act, 1953", though all Jagirs were deemed to be abolished in view of Section 10 of "the Act, 1953", saves the rights of the Jagirdars subsisting on the appointed date to mines and mineral products in a Jagir Page 12 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined village granted or recognized under any contract, grant or law for the time being in force or by custom or usage.
4.2 It is further submitted that Jagir Abolition Officer, vide order dated 01.08.1956, which is at Exhibit-49 at page 58 of Civil Application, whereunder documents were produced by the appellants and in view of the order referred to hereinabove, there is no dispute about the same by the respondent - State. In an inquiry under Section 2(4)(i) of "the Act, 1953" after considering the evidence led therein, held that Jagirdar was entitled to all the rights and interest in the soil of the Jagir village and it was declared under Section 2(4)(i) of "the Act, 1953" that the Babsar Jagir was a proprietary Jagir.
4.3 It is further submitted that in an application for compensation filed by the appellants under Section 11 read with Section 13 of "the Act, 1953", which included the prayer for compensation to the rights to mines and mineral products, the Special Deputy Collector for Land Tenure Abolition Act, Sabarkantha district, vide order dated 20.02.1960, which is Exhibit-50 at page 60 of the compilation in Civil Application, was pleased to agree with the deposition of Mamlatdar therein and came to a finding that rights of the appellants towards the mines and mineral products of Survey Nos. 71 and 294 are saved under Section 10 of "the Act, 1953", and therefore, Jagirdar cannot be paid any compensation for the rights in those survey numbers.
4.4 It is further submitted that since in the year 1971- 72, the Public Works Department officials started utilizing Page 13 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined stones and metals from Survey Nos. 71 and 294 of Village Babsar without the permission of the appellants for the construction of Dharoi dam. Therefore, the appellants addressed a letter dated 11.10.1972 to the Collector to restrain the Public Works Department officials from taking or making use of stones and metals and to order to pay the price of the stones and metals to the appellants. According to his submission, further, as a result of said letter, the Collector, vide letter dated 04.11.1972, which is on record at Exhibit-53, directed the Executive Engineer, Dharoi Irrigation Project, to keep accounts of the mines and mineral products taken from Survey Nos. 71 and 294 and to inform him how it was being managed. It is submitted that despite clear set of facts indicating that the appellants had pre-existing rights to mines and mineral products, which were saved under Section 10 of "the Act, 1953" and also recognised all throughout by all authority and never disputed, having attained finality, shockingly appellants received a notice dated 15.03.1974 from the Collector, purportedly to hold an inquiry under Section 37(2) of"the Code, 1879" regarding their rights over mines and mineral products situated in Survey Nos. 71 and 294 of the village Babsar. That further, after an unexplained delay of 5 years, the Mamlatdar, Idar, then issued a notice dated 07.09.1979 to the appellants informing them that inquiry about the rights in Survey Nos. 71 and 294 are to be held. It is further submitted that after various rounds of orders passed by the authorities, the Gujarat Revenue Tribunal, finally vide order dated 27.03.1985 in an Appeal No. TEN.A.A.119 of 1981, which is produced on record at Exhibit-48, set aside the judgment Page 14 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined and order of Mamlatdar and held that the appellants have rights over the mines and mineral products in Survey Nos. 71 and 294 of Village Babsar. It is further submitted that the said order of Tribunal has never been challenged and attained finality.
4.5 It is further contended that the appellants, on not receiving record of stones and metals or compensation taken out from the lands of the appellants, were constrained to issue a notice under Section 80 of "the Code, 1908", which is produced at Exhibit-46, and thereafter, filed the Special Civil Suit No. 58 of 1988 in the Court of Civil Judge (S.D.), Himmatnagar, in claiming the market price for the mines and mineral products taken from Survey Nos. 71 and 294 for 1,50,000 CMT at the rate of Rs.7/- per CMT, which is equal to Rs.10,50,000/-, along with 12% interest from the year 1973 is equal to Rs.17,64,000/- totalling to Rs.28,14,000/- as of the date of filing of the suit i.e. 13.06.1988. It is further submitted that the trial Court held that the appellants have failed to prove their ownership over Survey Nos. 71 and 294 of Village Babsar and that the appellants have no right, title or interest in Survey Nos. 71 and 294, and therefore, dismissed the suit.
4.6 Relying on the decision of the Supreme Court in the case of State of Gujarat and anr. v. Maharaj Shri Amarsinhji Himatsinhji, reported in (1978) 2 SCC 619, it is submitted that ordinarily a grant is to be construed as inclusive of all rights, unless specifically excluded and if in the inquiry under Section 2(4)(i) of "the Act, 1953", the reason for holding that a Jagir is proprietary Jagir is that the Jagir has all rights in Page 15 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined the land, then a second or further inquiry under Section 37(2) of"the Code, 1879"is barred.
4.7 It is further submitted in context thereof that Jagir Abolition Officer being an authority notified under "the Act, 1953" having held an inquiry and on evidence led before him, came to a specific finding that the appellants are entitled to all the rights and interest in the soil of Jagir village declaring the appellants Jagir to be a proprietary Jagir. Even the claim for compensation of the appellants for mines and mineral products was also rejected on the finding by the learned Collector that the subsisting rights of the appellants in mines and mineral products are saved by Section 10 of "the Act, 1953", in view of the aforesaid decision, any further inquiry into the rights of the appellants over mines and mineral products under "the Code, 1879" was barred in law.
4.8 It is further submitted that, despite that the appellants were served with notice under Section 37(2) of "the Code, 1879" and an illegal inquiry was sought to be belatedly and illegally instituted against the appellants, it is further submitted that after various rounds of orders, the appellants were again successful before the Gujarat Revenue Tribunal, which vide order dated 27.03.1985, was pleased to allow the appeal filed by the appellants and held in para 6 & 7 that the delay on the part of the State Government clearly goes to indicate that the State Government wants to deprive the rights to mines and mineral products in Survey Nos. 71 and 294 of Village Babsar belonging to the appellants. Ultimately, the Tribunal held that the disputed lands belong to the appellants Page 16 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined and not to the State Government. It is vehemently submitted that the judgment of the Tribunal has not been challenged and attained the finality.
4.9 It is further submitted that respondent - State of Gujarat, for the first time before this Court, dehors any case put forth and/or any pleading and/or contentions before the trial Court that the appellants' rights could not be saved under Section 10 of "the Act, 1953", as the mines of the appellants were not open mines and reliance was sought to be placed on the decision of the Supreme Court in the case of State of Gujarat v. Maharaj Sajjan Sinhji Meharsinghji and anr., reported in (1980) GLR 818 to argue that the expression 'Mine' used in Section 10 of "the Act, 1953" would mean an opened mine and not an un-opened mine. According to the submission of learned Counsel for the appellants, such a contention, seeking to rely upon a factual foundation basis never pleaded or established before the trial Court and not even sought to be established before this Court by the procedure provided for, is not maintainable before this Court in final arguments during hearing of a First Appeal. It is further submitted without prejudice to the aforesaid argument that the reliance upon the judgment by the respondent is misplaced and misconceived, and the entire argument sought to be constructed is a red-herring and it has never been pleaded and/or sought to be established before the trial Court that the mines of the appellants are un-opened mines. It is further submitted that the appellants, while claiming compensation, claimed compensation of Rs. 1,976/- in lumpsum for their Page 17 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined rights in the stones of Dungar Kharaba of Survey Nos. 71 and 294 of Village Babsar and the appellants have deposed to that the appellants were charging at the rate of Rs. 1-8-0 per brass, clearly highlighting that the appellants were exploiting their mines and mineral products much prior to the notified date. It is further submitted that plaintiff's witness No. 1 has clearly deposed to before the Court that the mining works in the survey Nos. 71 and 294 was continuing much prior to the coming into force of "the Act, 1953", the appointed date, and continued subsequently and it has never stopped at the lands. It is further submitted that plaintiff's witness No. 2 has also deposed to that the appellants and their persons used to excavate stones from the lands in question. It is submitted that there is no evidence led by the defendant i.e. the State, to even suggest that there was no mining in the lands prior to the notified date. It is further submitted that the appellants had produced a list of documents and along with the same, a copy of the register maintained by the appellants produced, which is at Exhibit-91, clearly highlighting that mining activities were ongoing in the said lands. It is submitted by the appellants that although the copy, now before this Court with the passage of time appears not legible, it is not objected to on the ground of illegibility before the trial Court and the documents record the excavation of stones for payment of royalty, etc., which clearly shows that the mining was being carried out prior to the notified date.
4.10 It is further submitted by the appellants that the issue as to the proprietary Jagir and appellants being Page 18 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined proprietary Jagirdar, having all rights over the mines and mineral products in Survey Nos. 71 and 294 is now an issue estoppel between the parties having already been decided by the concerned competent authorities and forums, having attained finality, it cannot be now sought to be argued and/or re-opened by the defendant - State of Gujarat. It is submitted that trial Court has also come to the finding and conclusion that the Babsar village is a proprietary Jagir and defendant has not brought any document on record and/or advanced any argument as to why the said finding is incorrect and/or is required to be reversed. The appellants further submitted that the contentions raised by the defendant - State of Gujarat that the claims of the appellants now stand defeated in light of "the Code, 1879" and Land Tenure Abolition Laws (Gujarat Amendment) Act, 1982, (hereinafter referred to as "the Amendment Act, 1982"), deemed to have come into force from 08.12.1981, is also completely erroneous, not to mention mala-fide. According to the submission of the appellants, the contention cannot be accepted for the reason that the transitory provisions of "the Amendment Act, 1982" would govern the case of the appellants and in view of Section 7(1) & Section 7(3) of "the Amendment Act, 1982" are required to be read and interpreted harmoniously.
4.11 The learned Counsel for the appellants further submitted that "anything done or any action taken" in Section 7(1) of "the Amendment Act, 1982", would clearly cover the actions of the defendant - State through the Public Works Department in taking the mines and mineral products from Page 19 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined Survey Nos. 71 and 294 of Village Babsar from the year 1971- 1972 up to 1975-76, much prior in point of time to the coming into force of "the Amendment Act, 1982", more particularly from 08.12.1981. Therefore, it is submitted that the defendant
- State of Gujarat cannot seek to avoid the claim of the appellants based on the action of the defendant - State itself. It is further submitted that Section 7(3) of "the Amendment Act, 1982" can also not help the case of the defendant - State of Gujarat, as it is their own case that there was no obligation and/or liability on the part of Government to pay the appellants as on the date of the ordinance i.e. 08.02.1981, as prior to that vide order dated 17.08.1981, the learned Mamlatdar, Idar, held in an inquiry under Section 37(2) of 'the Code, 1879", already held that the appellants have no right over the mines and minerals in Survey Nos. 71 and 294. That it is only pursuant to the order dated 27.03.1985, passed by the Revenue Tribunal that the order of the learned Mamlatdar was set aside and the rights of the appellants were again held by the Revenue Tribunal. It is further submitted that there is no question of any liability crystallized of the defendant - State of Gujarat in absence of trial of the civil suit and findings of the quantum of mines and mineral lifted from the lands of the appellants and only thereafter would any liability be created against the respondent - State, and therefore, also Section 7(3) of "the Amendment Act, 1982" cannot be pressed into service.
4.12 It is further submitted that in the first part of Section 7(3) of "the Amendment Act, 1982", it is stated that "Any obligation or liability of the Government to pay any Page 20 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined royalty or any other sum to a person in relation to his right or privilege to any mines and mineral products existing before the commencement of the said ordinance shall cease...". It is submitted that the word 'person' has been used and not 'Jagirdar' and it is a conscious selection as 'the Act, 1953" and "the Amendment Act, 1982" also treat persons differently from Jagirdars. Hence, according to the submission of learned Counsel for the appellants, Section 7(3) of "the Amendment Act, 1982" will not restrict the claim of the appellants and/or provide any benefit to the defendants - State of Gujarat.
4.13 It is further submitted by the learned Counsel for the appellants that "the Amendment Act, 1982" has been repealed by the Gujarat Repealing Act, 2004 (hereinafter referred to as "the Repealing Act, 2004"), and therefore, since an appeal is a continuation of the original proceedings and the present proceedings have not concluded and are pending, the original Section 10 of "the Act, 1953" will apply in present case and not Section 10, as amended by "the Amendment Act, 1982".
4.14 It is further submitted that a bare perusal of Section 4(3) of "the Repealing Act, 2004"clearly indicates that the legislature was conscious of the provisions of Section 7 as well as Section 7A of the Bombay General Clauses Act, 1904, (hereinafter referred to as "the BGC Act, 1904") and also made it categorically evident that all the statutes referred to in the Schedule to "the Repealing Act, 2004", shall be deemed to be an enactment within the meaning of Section 7 of the "the BGC Act, 1904". It is, therefore, submitted that since non-amending Page 21 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined Acts were sought to be repealed along with the amending Acts, including "the Amendment Act, 1982" and legislature referred to in Section 7 and not Section 7A of the "the BGC Act, 1904", the different intention of the legislature as required under Section 7A of the "the BGC Act, 1904"is evident, and therefore, provisions of the Section 7A of"the BGC Act, 1904", cannot be applied herein, and therefore, the amendments carried out by "the Amendment Act, 1982" in"the Act, 1953", are deemed to have been repealed on passing of"the Repealing Act, 2004".
4.15 It is submitted that, in the present case, the rights of the appellants over all mines and mineral products in Survey Nos. 71 and 294 were saved under Section 10 of "the Act, 1953", and were upheld and recognized by all authorities from the year 1956 and all such orders were never challenged and same has attained finality, the actions of the defendant - State through the Public Works Department in illegally taking out stones from the mines of the appellants without payment also took place from 1971-72 till 1975-76. The appellants had also immediately addressed communications to the Collector and Collector had also addressed communication dated 04.11.1972 to the Public Works Department to direct them to keep accounts. Therefore, instead of accounts being provided to the appellants and the payments being calculated and made to the appellants, the appellants were dragged through a grossly delayed and impermissible inquiry under Section 37(2) of "the Code, 1879". It is further submitted that the finding of the Revenue Tribunal at para 6 (which order was never challenged and has attained finality), that the delay clearly indicates that Page 22 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined the Government wants to deprive the rights of the mines and mineral products in Survey Nos. 71 and 294 of Village Babsar. It is further submitted that having dragged on, delayed and sought to avoid payment of lawful claims to the appellants for a decade, the State Government, through the State Legislature, has introduced the ordinance on 08.12.1981 and the accrued rights and claims of the appellants, which were grossly delayed, are sought to be retrospectively taken away by way of legislative amendments. Therefore, it is submitted that the provisions of "the Amendment Act, 1982" are required to be read and interpreted in favor of the appellants in the above mentioned context.
4.16 It is further submitted that the appellants claim for rights to mines and mineral products is legally permissible as on the date of the filing of the suit before the learned Court below, the appellants submitted that the appellants are factually also entitled to their claim in the suit for the market price of the mines and minerals taken by the Public Works Department and the trial Court has erred in not appreciating the evidence on record towards the same. It is further submitted that while the witnesses of the appellants had clearly and categorically deposed to with regard to the mines and mineral products being taken by the respondent - defendant State towards the construction of Dharoi Dam, the relevant and necessary facts in the suit as to the amount of stones that the defendant - State had taken out from the lands of the appellants was in the exclusive knowledge of it. It is further submitted that the trial Court was also required to Page 23 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined appreciate that the defendant - State of Gujarat, in its written statement Exhibit-15, had categorically admitted to taking 20,450 cubic feets stones from Survey No. 294. This admission by the respondent - defendant State has never been challenged by the defendant, and/or sought to be modified or explained by the defendant. Therefore, in view of Section 50 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Evidence Act") and the law laid down by the Apex Court in case of Union of India v. Ibrahim Uddin, reported in (2012) 8 SCC 148, in absence of any clarification / correction / explanation by the defendant, the trial Court was required to hold that the plaintiff had proved that at least 20,450 cubic feets stones have been excavated from Survey No. 294 of Village Babsar.
4.17 It is further submitted that the defendant's witnesses in the suit have also admitted to taking mines and minerals from Survey Nos. 71 and 294. It is submitted that defendant's witness No. 3 - Mr. S.D. Patel, has admitted that Survey Nos. 71 comes only 4 kms from Dyke No.1 and has also admitted that there is an arrangement to bring stones with 4 Kms distance from the Dyke. Furthermore, defendant's witness No. 4 - Mr. J.B. Patel, has categorically admitted that 71,500 cubic feets stones were brought from Survey Nos. 71 and 20,450 cubic feets stones were brought from Survey No. 294 of Village Babsar. The said witness has further admitted that he had received instructions from the Collector to keep accounts of the stones when they started to excavate stones from Survey No. 294. The appellants further submitted that Page 24 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined defendant's witness No. 5 - Mr. Nandkishor Khatri has also admitted that stones from Survey Nos. 71 and 294 were taken for construction of Dharoi Dam, as can be inferred from the double negative in his response during the cross-examination.
4.18 The learned Counsel for the appellants further submitted that the defendant in the suit had failed to produce documents in its possession to show as to how much stones were used in the construction of the Dharoi Dam and the source of such stones (especially as it is an admitted position that learned Collector had directed the Public Works Department officials to maintain accounts of all stones taken from Survey Nos. 71 and 294, which accounts also failed to come on record), and therefore, the appellants were constrained to file an application under Order XI Rule 14 of "the Code, 1908" for production of documents vide Exhibit-39. It is further submitted that the trial Court was required to draw an adverse inference under Section 114(g) of the "the Evidence Act" against the defendant - State on their failure in providing the requisite documents after receiving notice of the same by way of the application.
4.19 It is further submitted that the application for production of documents was not heard till the date of final disposal of the suit and the order on the same was pronounced on the same date i.e. 31.03.1995. It is further submitted that the said procedure has caused grave prejudice to the appellants, and therefore, it is requested that the Court should draw an adverse inference against the defendant. On the Page 25 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined aforesaid submissions, learned advocate for the appellants requested to allow the appeal and decree the suit.
5. As against that, Ms. Pooja Asher, learned Assistant Government Pleader, submitted that the appellants have mainly relied upon the order dated 13.09.1956, Exhibit-49, passed by Jagir Abolition Officer, Sabarkantha district, order dated 20.02.1960, Exhibit-50, passed by Special Deputy Collector for Land Tenure Abolition Act, Sabarkantha district, and the order of Gujarat Revenue Tribunal dated 27.03.1985, Exhibit-48, for establishing their subsisting rights and ownership on the subject land. In that context, it is submitted that the revenue record documented at Exhibits-65 - 69 and 74 - 78 proves contrary. It is submitted that the appellants have not produced any contract, sanad, decree of the Court or any grant issued in their favor to establish ownership and subsistence of rights to mines and mineral products as on the date of the passing of "the Act, 1953". It is further submitted that the appellants have admitted that they have never challenged the revenue entries not reflecting names of the appellants and have admitted that the names of the appellants were not reflecting in the revenue record prior to the order of the Revenue Tribunal dated 27.03.1985.
5.1 Drawing attention of the Court to the cross- examination of plaintiff's witness No. 1 - Nizamkhanji Hajikhanji Tunvar, it is submitted that what is sought to be argued by the learned advocate for the appellants and shown from the order, Exhibit-50, in respect of making an application Page 26 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined for compensation of Rs. 1,976/- in lump-sum for their rights in the stones of Dungar Kharaba of Survey Nos. 71 and 294 and charging at the rate of Rs. 1-8-0 per brass, the witness has pleaded ignorance about making such application for compensation in respect of Survey Nos. 71 and 294. Therefore, according to the submission of learned Assistant Government Pleader, the arguments canvassed before this Court dehors the evidence which is led before the Court. Thus, it is submitted that the submissions made on behalf of the appellants, unless shown from the evidence led before the Court, cannot be appreciated.
5.2 It is further submitted that usage of the land i.e. Survey Nos. 71 and 294 of Village Babsar, before the appointed date i.e. 01.08.1954, should have been proved either from any order of grant, sanad, or any custom, which the appellants have miserably failed to establish, whereas documents at Exhibit-65 - 69 and 74 - 78, which is admitted by the plaintiff's witness No. 1 in his cross-examination that in the Government record in respect of revenue Survey Nos. 71 and 294 of Village Babsar, the land is shown to be "Dungar Na Kharaba" (wastelands on hills). Though, according to the submission of learned Assistant Government Pleader, witness has pleaded ignorance that Entry No. 138 in the revenue record refers about the same and accordingly, it has been transferred to the Public Works Department and the said entry was never challenged. He has further admitted in his cross- examination that on extinguishment of their rights in the properties of Jagir village, they received the compensation.
Page 27 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined Drawing attention of the Court to para 11 of his cross- examination, it is submitted that on one hand, a claim that mining activities were carried out in those survey numbers even prior to the coming into force of "the Act, 1953", the witness pleaded ignorance about any permission required for the same. Not only that, he also pleaded ignorance about any product mined, for which a permission of the Government was needed to take it out of the mines. Though he has admitted that when rights in the mines and mineral products were extinguished in the year 1982, he claimed for compensation but he did not receive the same.
5.3 It is further submitted that as admitted by the plaintiff's witness No. 1, blasting activity which is essential for excavation from subject land, cannot be conducted in Survey No. 71. In para 12, as deposed to, it is admitted that in Survey No.71, blasting work cannot be undertaken. Though witness has claimed that blasting activity can be undertaken in Survey No. 294. Despite his own admission in the cross-examination that no blasting activities can be carried on in Survey No.71, he has stated in cross-examination that Government has excavated stones from Survey No. 71 through blasting. He has further admitted in his cross-examination that in the year 1971, witness was Sarpanch of village Babsar and because of thick habitat, no blasting operation can be carried out, and therefore, he has never applied for the same. He has categorically admitted in his deposition that he has never excavated any stone or any mineral products out of Survey Nos. 71 and 294 through blasting. In short, as per his Page 28 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined deposition, blasting operation which is essential for excavating stones as also mineral products, cannot be carried out in those survey numbers and no vehicle can pass through those survey numbers, as admitted by the witness.
Drawing attention of the Court to the deposition of the defendant's witnesses, it is submitted that the claim of the plaintiff is denied by them, and therefore, the said submission made by the learned advocate for the appellants should not be accepted.
5.4 Learned Assistant Government Pleader further submitted that, vide Exhibit-91, the plaintiffs have attempted to produce accounts in respect of selling of stones showing excavation activities subsisting as on the date of coming into force of"the Act, 1953"in the suit lands. However, according to the submission of learned Assistant Government Pleader, the said document is not legible, does not carry any date. Over and above that, before any of the authorities even prior to the filing of the suit, no such document was ever produced to show that excavation activities were carried on or subsisting as on the date of coming into force of "the Act, 1953".
5.5 Drawing attention of the Court to the further examination-in-chief of the plaintiff's witness, vide order passed below Exhibit-88, it is submitted by the learned Assistant Government Pleader that in support of his assertion in the deposition in respect of excavation of suit land being carried on or subsisting as on the date of coming into force of"the Act, 1953", he had certain entries which were entered in Page 29 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined a book. As per his claim, he produced that book before the Mamlatdar in an inquiry under Section 37(2) of"the Code, 1879". According to him, till the conclusion of proceedings in the Gujarat Revenue Tribunal and record was sent back to the Mamlatdar, the said book was not in their custody at that time. As he came to know that record has been received in the office of the Mamlatdar back, he obtained that book and verified copy of those entries. He produced before the Court vide Mark- 90/1. The claim in that deposition with regard to the book produced before the Mamlatdar and those entries were exhibited, wherein it is disclosed that those stones were given to persons for construction of their houses. However, during the course of cross-examination, the witness had to admit that he does not know whether Mamlatdar or the Clerk in the office of the Mamlatdar having signed below those entries as exhibits. He claimed that said book was for the Samvat year 2011 to 2020, and during these 9 years, there are only two entries of the same, that too, in Samvat 2016 for Rs. 12/- and 12/-, only two entries are there. According to his admission in the deposition, the said book contained all transactions in respect of his Jagir is written in the said book, whereas for mines and mineral products or excavation of stones, except those two entries, there is nothing written in the said document. Therefore, it is submitted that the document produced belatedly having not been proved in accordance with law, not bearing signature of the authorities, though claimed by the plaintiffs, it is nothing but a creation of the plaintiffs, in their attempt to show that mining activities were being carried on as on the date of coming into force of"the Act, 1953".
Page 30 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined 5.6 It is further submitted by the learned Assistant Government Pleader that subsistence of right to mines and mineral products, as on the date of coming into force of"the Act, 1953"having not proved, the claim that transitory provisions made through"the Amendment Act, 1982", unless it is shown by the plaintiffs that before amendment, there was any provision governing compensation for the Right to mines and mineral products, the plaintiffs are not entitled to any of the compensation.
5.7 Drawing attention of the Court to unamended Section 10 of"the Act 1953", Section 69 of"the Code, 1879"as also Section 10 after"the Amendment Act, 1982"and Section 69A of"the Code, 1879"on and from 01.08.1954, all rights to the Jagir village, including right in mines and minerals products extinguished, no compensation can be awarded even for extinguishment of their right in absence of any provision thereof.
It is further submitted that once right in Jagir village is extinguished and property vests with the State, no compensation out of those survey numbers even if there is existing mines in those properties, can be awarded in view of"the Amendment Act, 1982". For the same, learned Assistant Government Pleader relied on a decision of the Supreme Court in the case of Maharaj Sajjan Sinhji Meharsinghji (Supra).
5.8 In respect of market price of the stones used in Dharoi Irrigation Project to the extent of Rs. 10,50,000/-, Page 31 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined claimed to be excavated from Survey Nos. 71 and 294 of Village Babsar, the plaintiffs claimed rate of Rs. 7/- per CMT, they would be entitled to Rs. 10,50,000/-, as according to their claim, 1,50,000 CMT stones were excavated from those survey numbers. However, according to the submission of learned Assistant Government Pleader, the said facts have not only been denied in the written statement, the plaintiffs have failed to prove the said fact by documentary evidence as well. According to her submission, defendant's witness No. 3 at Exhibit-103, defendant's witness No. 4 at Exhibit-105, defendant's witness No. 5 at Exhibit-108, excavation activity in the suit land is disputed by the witness and clearly stated that no stones were ever used for the projects, excavated from Survey Nos. 71 and 294 of Village Babsar. As such, defendant's witnesses have categorically stated that in Dharoi Irrigation Project, the stones excavated from the dam site as also requirement of additional stones was to be fulfilled by bringing it from quarries of Ambawadi and village Musar. Though defendant's witness No. 4 has stated that certain amount of stones have been excavated from Survey Nos. 71 and 294 of Village Babsar for construction of Dyke No. 2. However, he has categorically stated that from Dyke No. 4, no stones were procured from Survey Nos. 71 and 294. However, drawing attention of the Court from the cross-examination of defendant's witnesses conducted by the learned advocate for the appellants, suggestion put to the witness to the effect that 61,500 cubic metres stones have been excavated from Survey Nos. 71 and 294, is very specifically denied by the witness. Not only that, in para 4 of the cross-examination of the defendant's Page 32 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined witness conducted by the learned advocate for the appellants, a further suggestion put that for construction of Dyke Nos. 2 and 4, entire stones used therein were excavated from Survey Nos. 71 and 294, also specifically denied by the witness.
5.9 Drawing attention of the Court to Sections 11, 12 and 13 along with Section 21A of "the Act, 1953", which was inserted vide"the Amendment Act, 1982", it is submitted that even subsisting right to the mines and mineral products existing before the appointed date, they are made entitled to the compensation in accordance with provisions of Section 21A of "the Act, 1953"and within the time prescribed therein. Therefore, in view of Section 10, amended by "the Amendment Act, 1982", on and from appointed date i.e. 01.08.1954, all mines whether being worked or not, and minerals, whether discovered or not, and all quarries, which are situate within limits of any Jagir village, granted or recognized under any contract, grant or law for the time being in force or decree of a Court, shall vest in and with all rights over the same or appurtenant thereto, be the property of the State Government. Thus, according to the submission of learned Assistant Government Pleader, with retrospective effect from 01.08.1954, even subsisting right of the Jagirdar in relation to mines and mineral products, including in any decree of Court, vests with the State Government. Therefore, it is submitted that not only the plaintiffs have failed to show subsisting rights to the mines and mineral products as on the date of coming into force of"the Act, 1953", the coming into force of"the Amendment Act, 1982"with retrospective effect from Page 33 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined 01.08.1954, even those rights which were saved under Section 10 of unamended "the Act, 1953", came to an end and vests with the State Government. Therefore, according to the submission of learned Assistant Government Pleader, the claim made in the suit for the value of stones, said to be excavated from Survey Nos. 71 and 294 of Village Babsar, cannot be entertained as plaintiffs ceased to have any right over the said property with effect on and from 01.08.1954 i.e. appointed date, save and except compensation, as provided under"the Amendment Act, 1982", that too, within the limitation provided therein.
5.10 The submission of the learned advocate for the appellants, claiming principal amount along with the interest, is opposed by the learned Assistant Government Pleader on the ground that since they are not even the owners of the property, even their subsisting rights, if any, in the mines and mineral products extinguished with effect on and from 01.08.1954, they cannot claim any compensation, that too, any interest thereon save and except under Section 21A of"the Act, 1953", as inserted by "the Amendment Act, 1982".
5.11 Learned Assistant Government Pleader further submitted that the submission on behalf of the plaintiffs relying on decision of the Revenue Tribunal in respect of inquiry conducted under Section 37(2) of "the Code, 1879", belatedly is of no use as the decision of the Tribunal rendered ignoring the existing laws as on that date, and therefore, order passed by the Tribunal, though may not be challenged, is of no use.
Page 34 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined 5.12 Relying on a decision in the case of Thakoreshri Chelsinhji Nathusinhji Chauhan v. State of Gujarat, reported in 1995 (2) GLR 1282, more particularly para 8 thereof, it is submitted that transitory provision under Section 7 of"the Amendment Act, 1982"and insertion of Section 21A of"the Act, 1953"by very same amendment Act, interpreted by this Court and held that Government will not be liable to pay any other royalty or sum to any other person in relation to his right or privilege to the mines or mineral products once compensation payable under Section 21A of"the Act, 1953"is paid. Interpreting Section 7(3) of"the Amendment Act, 1982"it is held that all rights and privileges were to cease and the liability of the Government was to come to an end.
5.13 Dealing with the submission of the learned advocate of the appellants in respect of admissions made and adverse inference to be drawn against the defendant, it is submitted by the learned Assistant Government Pleader that admissions are required to be substantiated along with the corroborative evidence, as it is not conclusive, if at all presumed to be admissions made by the defendant. It is further submitted that any contradictory evidence given by the defendant's witness in examination-in-chief and cross- examination, the deposition of that witness so far as that evidence is concerned, is required to be ignored by the Court.
5.14 In respect of the order order 13.09.1956, Exhibit-49, it is submitted by the learned Assistant Government Pleader that Babsar village is a proprietary Jagir of the plaintiffs is not Page 35 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined challenged, and therefore, admitted by the defendant, subsisting right to mines and mineral products in Jagir village prior to coming into force of "the Act, 1953" in absence of any contemporaneous record, stated therein cannot be pressed into service. Relying on para 6 of the decision of this Court in the case of Maharaj Sajjan Sinhji Meharsinghji (Supra), referring to quotation from Supreme Court decision therein that the determination under Section 2(4)(i) of "the Act, 1953"
to the effect that a particular Jagir is a proprietary one, necessarily implies that grantee is entitled to mines and mineral products in the villages comprising the grant, the said contention was not accepted by the Supreme Court, as referred to in para 6 of the aforesaid decision. The submission made by the learned advocate for the appellants that since an order passed by Special Deputy Collector for Land Tenure Abolition Act, Sabarkantha district, dated 20.06.1960, at Exhibit-50, is never challenged, wherein it is held that in view of Section 10 of"the Act, 1953" since subsisting right to mines and mineral products are saved, they are not entitled for the compensation, it is submitted by the learned Assistant Government Pleader, is no finding to support the contention that plaintiffs had subsisting right to mines and mineral products on or before coming into force of "the Act, 1953". As such, at that relevant time, no compensation in respect of rights to the mines and mineral products in the Jagir village for which compensation could be paid. However, according to the submission of learned Assistant Government Pleader, on coming into force of "the Amendment Act, 1982", that too, with retrospective effect, even those rights are also Page 36 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined extinguished for which compensation is provided for in it. Irrespective of any order of grant, sanad, agreement, etc. or in any judgment, decree or order of a Court or of the authority, with effect on and from the appointed date i.e. 01.08.1954, all mines whether being worked or not, and minerals, whether discovered or not, and all quarries, which are situate within limits of any Jagir village, granted or recognized under any contract, grant or law for the time being in force or decree of a Court, shall vest in and with all rights over the same or appurtenant thereto, be the property of the State Government.
Thus, according to the submission of the learned Assistant Government Pleader, not challenging any orders passed by the authority in the year 1954 or 1956 or prior thereto, is of no consequence, and therefore, no reliance can be placed thereon in support of their contention in the present suit.
5.15 Dealing with the argument that order passed by the Revenue Tribunal, Exhibit-48, which held that the plaintiffs have proprietary right over the Jagir village and they had rights in mines and mineral products, which is determined on 27.03.1985, is of no use as it thoroughly ignored the amendment with retrospective effect made much prior to the passing of the order by the Tribunal, whereby on and from 01.08.1954, not only the Jagir is extinguished, even subsisting right, if at all it is there, in mines and mineral products have also been extinguished, and therefore, the order of Tribunal cannot be pressed into service, which can be termed as void order, ignoring relevant provisions of"the Act, 1953"itself. At Page 37 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined any rate, according to the submission of learned Assistant Government Pleader, the said order cannot be pressed into service in support of the compensation for the stones claimed to be utilized by the defendant and compensation thereof. Therefore, repeated submissions made by the learned advocate for the appellants, as submitted by the learned Assistant Government Pleader, that the order passed by the Tribunal is not challenged and attained finality, is of no consequence at all. In view of the amendment, that too, with retrospective effect on and from 01.08.1954 extinguishing all rights, including that of mines and mineral products in Jagir village, as submitted by the learned Assistant Government Pleader, even if there are any admission about use of stones excavated from Survey Nos. 71 and 294 of Village Babsar is of no consequence. On the aforesaid submissions, learned Assistant Government Pleader submitted that the appeal filed by the plaintiffs be dismissed with cost.
6. Having heard the learned advocate for the appellants - plaintiffs and learned Assistant Government Pleader for the respondent - defendant State, and going through the material available on record, though original Record and Proceedings is destroyed for want of any admission writ claimed to have been issued to the Court concerned, in view of an order passed by this Court in aforesaid Civil Application and submissions made based on depositions, certain copies of which have been produced by the plaintiffs and undisputed documents, this Court is called upon to determine the appeal. Before embarking upon detailed Page 38 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined analysis of the evidence led in the case, the provisions as existed on the date of enactment and amendments made therein, with retrospective effect, are required to be noticed first in this judgment.
6.1 Section 69 of"the Code, 1879", reads as under:-
"69. The right of the Government to mines and mineral products in all unalienated land is and is hereby declared to be expressly reserved:
[Provided that nothing in this Section shall be deemed to affect any subsisting rights of any occupant of such land in respect of such mine or mineral products] However, word'unalienated'came to be deleted vide "the Amendment Act, 1982". The said Amendment Act, 1982, came into force on and from 08.12.1981. Simultaneously, proviso shall be and shall be deemed always to be deleted with effect from 01.05.1960.
Thus, Section 69 as on date exists as under:- "69. The right of the Government to mines and mineral products in all *** land is and is hereby declared to be expressly reserved:"
Simultaneously, with the said Amendment Act, Section 69A shall be and shall be deemed always to have been inserted with effect from 01.05.1960, as under:-
"[69A. (1) Notwithstanding anything contained in any Page 39 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined custom, usage, grant, sanad or order or agreement or any law for the time being in force, or in any judgement, decree or order of a court or of other authority, with effect on and from the 1st May, 1960 all mines whether being worked or not and minerals whether discovered or not and all quarries which are situate within the limits of any land, granted or recognised under any contract, grant or law for the time being in force or decree of a court, shall vest in and with all rights over the same or appurtenant there to be the property of the State Government, and the State Government shall, subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 have all powers necessary for the proper enjoyment and disposal of such rights.
(2) The rights of the Government to mines and mineral products in land reserved under section 69 or the rights of the Government to mines, minerals and quarries vested under sub-section (1) includes the right of access to land for the purpose of prospecting and working mines and the right to occupy such other lands as may be necessary for purposes of erection of offices, workmen's dwellings and machinery, the stacking of minerals and deposit of refuse, the construction of roads, railways, or tram-lines and any other purposes which the State Government may declare to be subsidiary to prospecting and working mines.Page 40 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023
NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined (3) If the State Government assigns to any person, its rights over any mines, minerals, quarries or mineral products and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub-sections (1) and (2) be exercised, the Collector may, by an order in writing subject to such conditions and reservations as he may specify, delegate such powers to the person to whom the right is assigned.
(4) Any occupant, whose rights to mines, minerals or quarries in any land, existing immediately before the 1st May, 1960 have vested in the State Government on that date under sub-section (1), shall be entitled to compensation of an amount equivalent to the average of the net annual income received by the occupant in respect of the mines and mineral products during the three years immediately preceding the date of vesting.
(5) (a) Any occupant entitled to compensation under sub-section (4) may apply to the Collector for such compensation in the form prescribed in this behalf by the State Government.
(b) Such application shall be made within twelve months from the date of the commencement of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981 or such further period as may be prescribed by the State Government.
Page 41 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined
(c) The Collector, shall, after making such inquiry (including giving the applicant an opportunity of being heard ) as he thinks necessary, determine the amount of compensation and the provisions of sections 9, 10, 11, 12, 13, 14, and 15 of the Land Acquisition Act, 1894 shall, so far as may be apply to the proceedings held by the Collector in this behalf.
(d) The decision of the Collector determining the amount of compensation shall, subject to decision in an appeal to the Gujarat Revenue Tribunal be final, and payment shall be made by the Collector accordingly.
(e) The amount of compensation payable under this section shall be paid in cash with interest at the rate of 4 1/2 per cent. for the period commencing on and from the date of commencement of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981 and ending on the date of payment].
6.2 By "the Amendment Act, 1982", not only there is amendment in "the Code, 1879","the Act, 1953"also came to be amended significantly. In Section 8, explanation shall be and shall be deemed to always have been re-numbered as Explanation-I and after the explanation as so re-numbered, Explanation-II came to be inserted, which reads as under:-
"Explanation - II - For the purposes of this section waste land means land unfit for cultivation and includes -Page 42 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023
NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined
(a) land on which green grass grows naturally,
(b) land in which there exists any mines, whether being worked or not, any minerals, whether discovered or not and any quarries, whether being worked or not";
Unamended Section 10 of"the Act, 1953" reads as under:-
"10. Nothing in this Act or any other law for the time being in force, shall be deemed to affect the rights of any jagirdar subsisting on the appointed date to mines or mineral products in a jagir village granted or recognized under any contract, grant or law for the time being in force or by custom or usage."
However, by "the Amendment Act, 1982", Section 10 shall be and shall be deemed always to have been substituted as under:-
"10. (1) Notwithstanding anything contained in any custom, usage, grant, sanad, or order or agreement or any law for the time being in force, or in any judgement, decree or order of a court or of other authority, with effect on and from the appointed date, all mines whether being worked or not and minerals whether discovered or not and all quarries which are situate within the limits of any jagir village granted or recognised under any contract, grant or law for the time being in force or decree of a court shall vest in and with all rights over the same or appurtenant thereto be the property of the State Government, and the State Page 43 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined Government shall, subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 have all powers necessary for the proper enjoyment, and disposal of such rights.
(2) The rights of the Government to mines, minerals and quarries in land vested under sub--section (1) includes the right of access land for the purpose of prospecting and working mines and the right to occupy such other land as may be necessary for purposes of erection of offices, workmen's dwellings and machinery, the stacking of minerals and deposit of refuse, the construction of roads, railways, or tram-
lines and any other purposes which the State Government may declare to be subsidiary to prospecting and working mines.
(3) If the State Government assigns to any person its right over any mines, minerals or quarries and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub--sections (1) and (2) be exercised, the Collector may, by an order in writing, subject to such conditions and reservations as he may specify, delegate such powers to the person to whom the right is assigned."; "
6.3 Not only that, by "the Amendment Act, 1982", Section 21A came to be inserted in"the Act, 1953", which reads as under:-Page 44 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023
NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined "21A. (1) Any jagirdar whose rights to mines, minerals or quarries in any jagir village existing immediately before the appointed date have vested in the State Government on that date under section 10, shall be entitled to compensation of an amount equivalent to the average of the net annual income received by the jagirdar in respect of the mines and mineral products during the three years immediately preceding the date of vesting.
(2) Any jagirdar entitled to compensation under sub section (1), may apply to the Collector for such compensation.
(3) The application under sub--section (2) shall be made to the Collector in the prescribed form within twelve months from the date of the commencement of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981, such further period as may be prescribed. The Collector shall after holding formal inquiry in the manner provided in the Code make an award determining the compensation.
(4) An appeal shall lie from the said award to the Gujarat Revenue Tribunal.
(5) The provisions of sections 15 to 21 (both inclusive) Page 45 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined shall so far as be, apply to the proceedings in respect of such award or appeal, as the case may be.
(6) Notwithstanding anything contained in section 22 the amount of compensation payable under this section shall be paid in cash with interest at the rate of 4 1/2 per cent. for the period commencing on and from the date of commencement of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981. and ending on the date of payment.".
Section 7 of"the Amendment Act 1982", which provides transitory provisions, reads as under:-
" 7. (1) Subject to the provisions of sub-sections (?) and (?), nothing contained in the Bombay Land Revenue Code, 1879, or any of the Bombay Land Tenure Abolition Laws, as amended by this Act, shall affect any thing done or any action taken before the commencement of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981 (hereinafter referred to as "the said Ordinance") in relation to any mines, minerals or quarries vesting in a person other than the Government.
(2) Any prospecting licence, mining lease, quarry lease, or any document evi-dencing any mineral concession, in respect of land in which the minerals vested in a person other than the Government brought Page 46 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined into conformity with the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and rules made thereunder under section 16 of that Act or issued under that Act and the rules made thereunder and in force at the commencement of the said Ordinance shall continue as if such licence, lease or document were given in respect of land in which minerals vested in the Government and accordingly,-
(i) such licence, lease or document shall be construed as if it was given by the Government;
(ii) any rent, royalty or other sum payable to such person by virtue of such licence, lease, or document shall from the commencement of the said Ordi-nance be payable to the Government; and
(iii) Such licence or lease shall be renewable according to law.
(3) Any obligation or liability of the Government to pay any royalty or any other sum to a person in relation to his right or privilege to any mines and mineral products existing before the commencement of the said Ordi-nance shall cease and no legal proceeding or remedy for enforcement of such right or privilege or in respect of such obligation or liability shall be institu-ted, continued or enforced in any court, or other authority. "
Considering the aforesaid provisions, with amendments, one thing is clear that prior to"the Act, 1953"came into force, unamended Section 69 of "the Code, Page 47 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined 1879", reserved right of the Government to mines and minerals products in all unalienated land, which further provided that it shall not affect any subsisting rights of any occupier of such land in respect of such mines and mineral products. However, on coming into force of"the Act, 1953", Section 10 thereof provided specifically that nothing in"the Act, 1953"or any other law for the time being in force shall be deemed to affect the rights of any Jagir subsisting on the appointed date to mines or minerals products in a Jagir village granted or recognized under any contract, grant or law for the time being in force or by custom or usage. Thus, the subsisting right of any Jagir, as on appointed date being 01.08.1954 under Section 2(1)(i) of"the Act, 1953", protected the subsisting rights prevailing before 01.08.1954 to the Jagir.
6.4 Therefore, Jagir or any other person, who claims right from Jagir must show that their rights to mines or mineral products in Jagir village were subsisting before"appointed date"i.e. 01.08.1954, granted or recognized under any contract, grant or law for the time being in force or by custom or usage. So far as present case is concerned, it is claimed by the plaintiffs that they were having rights subsisting before 01.08.1954 on the basis of an order passed by the Jagir Abolition Officer, Sabarkantha district, dated 13.09.1956, Exhibit-49, wherein while holding village Babsar to be a proprietary Jagir of Idar Taluka, Jagir Abolition Officer has held that Jagir was entitled to all the rights and interest in the soil of Jagir village, as Jagir had the right to sell agricultural wasteland as well as village site-lands and to appropriate the sale Page 48 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined proceeds thereof. However, plaintiffs before the Jagir Abolition Officer, failed to show any contract, grant or law for the time being in force or by custom or usage, having any subsisting rights to mines and mineral products existing on the appointed date i.e. 01.08.1954.
So far as order Exhibit-49 refers that the Jagirdars claimed the proprietary rights over the Jagir and in support of their claim, produced copy of the order dated 24.04.1908, passed by the Alienation Committee of the Ex-Idar State. As referred to in an order Exhibit-49, Jagir was granted to the forefathers of the Jagirdar as far as back to the Samvat year 1854, in appreciation of the services rendered to the State. It further refers that it was ordered only to recover administrative levy @ 0-1-0 per Bigah of cultivated lands. That levy was known as "Alienation Ankado". The said order refers about what is stated by the Mamlatdar in his report dated 01.08.1956 that the Jagirdar used to pay Rs. 98-2-0 as "Alienation Aankdo" to the Ex-Idar State, holding that the Jagirdar enjoyed the rights exclusively over the Jagir. Though the said order refers about the right in the soil of the Jagir village, no subsisting rights as on the appointed date i.e. 01.08.1954, to mines and mineral products by way of any grant, order, custom or usage is shown in the said order.
6.5 The plaintiffs have also relied on Exhibit-50, the order passed by Special Deputy Collector for Land Tenure Abolition Act, Sabarkantha district, whereby he passed an award awarding compensation, wherein it is specifically mentioned that they were denied compensation of Rs. 1,976/-Page 49 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023
NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined in lumpsum for their rights in stones of the Dungar Kharaba of survey Nos. 71 and 294, which was on the ground that subsisting rights, if any, of the Jagir in mines and mineral products are saved by Section 10 of "the Act, 1953" and therefore, no compensation has to be awarded.
Though it does not specifically rules that plaintiffs had subsisting rights to mines and mineral products in Jagir village as on the appointed date.
6.6 Over and above that, the plaintiffs had relied on Exhibit-91, which is reflecting certain entries showing sale of stones for the construction of house, two in numbers, reflected in an account-book. It is further claimed that said account-book was produced before the Mamlatdar in an inquiry under Section 37(2) of "the Code, 1879", which was considered by the Gujarat Revenue Tribunal along with other documents to decide the same in favor of the plaintiffs. It is further claimed that in an inquiry conducted by the Mamlatdar under Section 37(2) of"the Code, 1879", said entries were given Exhibit-1(2).
However, from the cross-examination of the plaintiff's witness No. 1, it is clear that only two pages from the book claimed to be account-book, which is maintained for Samvat years 2011-2020. Not only that, for those 9 years' accounts, these were the only two entries in that books of accounts, claimed to be in the Samvat year 2016 for Rs. 12 and 12 respectively, showing sale of stones to one person. As such, original documents are not on record, as referred to hereinabove, two pages from the account-book produced by Page 50 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined the plaintiffs as a paper-book in Civil Application No. 2386 of 2016, it appears to be one and same. Apart from its authenticity, it never proves subsisting rights to mines and mineral products in Jagir village, that too, of Survey Nos. 71 and 294 of Village Babsar. If there were any subsisting right in the mines and mineral products of Jagir village, that too, from the year 1908 till the passing of"the Act, 1953", there may not be only two entries in the books of accounts showing sale of some stones, though no proof that there was right to mines and mineral products in the Jagir village, from the year 1908 to 1954 produced. Thus, neither order Exhibit-49, Exhibit-50 nor Exhibit-91 proves subsisting rights to mines and minerals belonging to the plaintiffs, subsisting as on 01.08.1954. Even if it is so, on extinguishment of all rights of the Jagirdar in Jagir village, plaintiffs lost all rights in it and could not have filed suit, assuming those survey numbers to be his own property wherefrom stones are alleged to be excavated for construction of Dharoi Dam Project. Of all those survey numbers comprised in Jagir village Babsar, including Survey Nos. 71 and 294, rights of the plaintiffs extinguished and it stood in the name of the State Government in all the revenue records throughout as on and from date 01.08.1954. Learned Assistant Government Pleader has rightly referred to Exhibits-65 to 69 and 74 to 48, 7/12 extracts as also village form No. 6 reflects occupant as Public Works Department and ownership is that of Government wasteland, which is contrary to the claim made by the plaintiffs and those, entries in the revenue records were never challenged by them. Not only that, during the course of cross- examination of plaintiff's witness No. 1, he had categorically Page 51 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined admitted that those record prior to the order passed by the Revenue Tribunal, that too, in the year 1985 did not reflect name of the Jagirdar either as occupier or as owner of the properties. He has to specifically admit that based on order of the Revenue Tribunal, entries in the revenue record came to be made only after the order passed by the Revenue Tribunal.
6.7 However, the order passed by the Tribunal with regard to the ownership dispute of the properties ignoring the existing law, and therefore, it is void even if it is not challenged. The said aspect would be dealt with in detail in the subsequent paragraphs at appropriate place.
In short, the plaintiffs have failed to prove subsisting rights to mines and mineral products on 01.08.1954 i.e. appointed date, so as to claim compensation for utilization of stones excavated from Survey Nos. 71 and 294 of Village Babsar.
6.8 The Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Ordinance, 1981, came to be passed with effect from 08.12.1981. However"the Amendment Act, 1982"is deemed to have come into force from the date of Ordinance i.e. 08.12.1981.
6.9 By deleting word'unalienated'and proviso of Section 69 of"the Code, 1879", and insertion of Section 69A, with retrospective effect from 01.05.1960, rendered any grant, or an agreement or a judgment or decree or order of a Court inoperative from 01.05.1960 and all mines, whether being Page 52 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined worked or not, or minerals, whether discovered or not, and all quarries, situated in any land, subject to the saving, shall vest in the State. Their regulation and development is subject to"the MMRD Act". The amended Section 69 and inserted Section 69A of "the Code, 1879" determined the existing rights and reserved them in favor of the State, the rights in the mines, minerals and quarries, in the lands whether alienated or unalienated, whether held by Girasdar or any other. The predominant purpose of"the Amendment Act, 1982"is to extinguish the pre-existing rights, title and interest in the land which includes rights to the mines and mineral and quarries, if any, held by Girasdar or other person and vest them in the State for public use.
6.10 Section 69A of"the Code, 1879", which came to be inserted by "the Amendment Act, 1962", specifically reflects that the said insertion shall be and shall be deemed always to have been inserted with effect from 01.05.1960. The said Section opens up with non-obstante clause showing that anything contained in any custom, usage, grant, sanad or order or agreement or any law for the time being in force or in any judgement degree or order of a Court or of other authority with effect on and from 01.05.1960, all mines, whether being worked or not, and minerals, whether discovered or not, and all quarries, which are situate within the limits of any land, granted or recognized under any contract, grant or law for the time being in force or decree of a Court, shall vest in and the rights over the same or appurtenant thereto, be the property Page 53 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined of the State Government and the State Government shall, subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957, (hereinafter referred to as"the MMRD Act"), have all the powers necessary for the property enjoyment and disposal of such rights. Thus, despite orders passed by the Jagir Abolition Officer or Special Deputy Collector for Land Tenure Abolition Act, Sabarkantha, either in the year 1956 or in the year 1960, more particularly 20.02.1960, recognizing if at all believed to be so, rights of the plaintiffs as Jagirdars in mines and mineral products in Jagir village, stood vested, that too, from 01.05.1960 with the State Government under"the Code, 1879". Not only that, in view of insertion of Explanation - II in Section 8 of"the Act, 1953"as aforesaid, even land in which there exists any mines, whether being worked or not, and any minerals, whether discovered or not, and any quarries, whether being worked or not, stood vested in Government, extinguishing the rights in it of the Jagirdars.
6.11 Substituted Section 10 of"the Act, 1953", which is a substitution from the date of coming into force of"the Act, 1953", which again provides vesting of rights to mines and mineral products on or before 01.08.1954, contained in any custom, usage, grant, sanad or order or agreement or any law for the time being in force or in any judgment or decree or order of a Court or of other authority in all mines, whether being worked or not, mineral, whether discovered or not, and of quarries, which are situate within the limits of any Jagir village, granted or recognized under any contract, grant or law for the time being in force or decree of a Court, shall vest in Page 54 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined and with all rights over the same or appurtenant thereto be the property of the State Government. Thus, it is very clear that even if plaintiffs had any subsisting rias on the date of coming into force of"the Act, 1953" to the mines and mineral products by way of any contract, order or grant, it stood extinguished with effect on and from the appointed date i.e. 01.08.1954. Since unamended Section 10 of "the Act, 1953", saves the right to mines and mineral products, if at all it is there, no compensation thereof can be provided under"the Act, 1953".
In the present case, there was no such subsisting rights on the appointed date i.e. 01.08.1954 and even if it is there, it stood extinguished on or from that appointed date in view of the retrospective amendment made in" the Amendment Act, 1982".
6.12 Therefore, legislature by way of"the Amendment Act, 1982", provided compensation for vesting of rights to mines and mineral products in the State Government, vide insertion of Section 21A of"the Act, 1953", how to calculate compensation for rights to mines, minerals or quarries in any Jagir village existing immediately before the appointed date, they held entitled to compensation of an amount equivalent to the average of the net annual income received by the Jagirdar in respect of the mines and mineral products during the three years immediately preceding the date of vesting. The compensation for those rights were to be paid to the Jagirdars for their rights extinguished but equivalent to the net annual income received by the Jagirdar in respect of mines and mineral products during the three years immediately Page 55 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined preceding the date of vesting i.e. three years prior to 01.08.1954, as those rights stood vested in the State Government on and from the appointed date i.e. 01.08.1954. For claiming that compensation, Jagirdar was to apply before the Collector, that too, within the time prescribed or such further time as may be prescribed. Even that order for compensation passed by the Collector is also made appealable. Not only that, the said compensation is to be paid, as provided in sub-section (6) of Section 21A with interest at the rate of 4 & 1/2 per cent on and from 08.12.1981, ending on the date of payment.
6.13 Most importantly, plaintiff's witness No. 1 had to admit in his cross-examination that"it is true that in the year 1982, our right to mines and mineral products were extinguished. In the year 1982, compensation for extinguished rights to mines and mineral products I had filled in necessary forms but no such forms are produced in this case". He has further admitted in para 10 of his cross-examination that for the Jagir properties vested in the Government, they received compensation, though learned advocate for the plaintiffs vehemently argued that claim of compensation for Rs. 1,976/- in lumpsum made for Survey Nos. 71 and 294, in which they claim right to mines and mineral products, which was denied on the ground that unamended Section 10 of "the Act, 1953"
recognizes or saves their right in the property, and therefore, they are not entitled to compensation, the plaintiff's witness No. 1 flatly pleads ignorance having made such an application for compensation in respect thereof. Not only that, plaintiff's Page 56 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined witness No. 1 had to admit in his cross-examination that Revenue Survey Nos. 71 and 294 were shown to be"Dungar na Kharaba"(Hilly wastelands). Thus, it is clear that the plaintiffs have not come with clean hands before this Court even saying that whether they have received compensation for their so called right of mines and mineral products in Survey Nos. 71 and 294 for which an application is made by them in the year 1982. Not only that, he has not produced the forms for such compensation either in the year 1982, whether he has received any compensation thereof or not is also not made clear. If as per amendment, any compensation is applied, as provided under Section 21A of"the Act, 1953"for inadequacy of the compensation or non-payment thereof, an appeal is provided under "the Act, 1953". However, in view of Section 20 of"the Act, 1953", the award made by the Collector subject to an appeal to the Gujarat Revenue Tribunal and decision thereafter, shall be final and conclusive and shall not be questioned in any suit or in any Court.
Therefore, suit filed by the plaintiffs on their claim of so called right to stones of Survey Nos. 71 and 294 of Village Babsar itself is not maintainable as their rights to mines and mineral products, even if presumed to be subsisting as on the appointed date, extinguished as of that very date in view of "the Amendment Act, 1982", as stated hereinabove. Therefore, the suit filed for recovery of an amount for excavation of the stones, that too, in the year 1971-72 or any time period near thereby, used in construction of Dharoi Dam project, including interest thereon of the value which they determined, which Page 57 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined even crosses the principal amount itself, was not maintainable at all. Their extinguishment of rights is by virtue of an operation of law, that too, on and from 01.08.1954 and any belief or misconception with regard to ownership of those survey numbers wherefrom they claim stones have been excavated and used by the State Government, cannot be entertained any further in view of the clear position of law as aforesaid. Therefore, any contention that vide Exhibit-39 application, defendant was called upon to produce documents, as enumerated in it under Order XI Rule 14 of "the Code, 1908", on the ground that order thereon came to be passed on 31.03.1995 i.e. the date of judgment and decree, giving no opportunity to the plaintiffs to either challenge before the higher forum, and therefore, for the non-production of those documents, adverse inference has to be drawn, pales into insignificance in view of discussion made of law hereinabove. The argument that order of Tribunal whereby it holds that they are entitled to right to the property in Survey Nos. 71 and 294 of Village Babsar and said decision of Tribunal having not been challenged by the defendant, is also of no help to the plaintiffs as said order is passed in absolute ignorance of the provisions of law made hereinabove, which provides for extinguishment of all rights, including rights to mines and mineral products in Jagir village, with all Jagir properties, on and from 01.08.1954, and therefore, it can just be ignored being per incuriam. At any rate, on merit also, as observed hereinabove, in view of clear position of law, no claim, that too, for so called recovery of the price for the stones utilized from the properties, which stood vested in the Government, could have been filed by the Page 58 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined plaintiffs, the filing of suit itself is misconceived.
6.14 The another argument that Section 7 of the "Amendment Act, 1982", more particularly sub-section (3) thereof, does not affect right of the plaintiffs is again required to be rejected outright, as the ambit of Section 7(3) of "the Amendment Act, 1982" is wide enough to include not only the Jagirdars but to any other person, who may have a right or privilege with regard to mines and mineral products existing before the commencement of the said ordinance, shall cease and no legal proceedings or remedy for enforcement of such right or privilege or in respect of such obligation or liability shall be instituted, continued or enforced in any Court or other authority.
6.15 The argument with regard to transitory provision made in Section 7 of "the Amendment Act, 1982" is again misconceived in view of Section 7(1) of"the Amendment Act, 1982". It is subject to provisions of sub-sections (2) and (3) of Section 7 and when Section 7(3) of "the Amendment Act, 1982" talks about extinguishing even any obligation or liability of the Government to pay any royalty or any other sum to a person in relation to his right or privilege to any mines and mineral products, existing before the commencement of the Ordinance and prohibiting any legal proceedings or remedy for enforcement of such right or privilege or in respect of such obligation or liability, shall be instituted, continued or enforced in any Court or other authority. The said argument is also of no use or support to the plaintiffs. Further, reading of transitory provision narrated in Section 7 of"the Amendment Act, 1982", Page 59 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined appears to protect right of a person, who have been validly given that right in relation to any mines, mineral or quarries, including vesting of it and bring prospective license, mining lease, quarry lease or any document evidencing any mineral concession in respect of land in which the mineral vested in a person other than Government, brought into conformity with the provisions of "the MMRD Act"and Rules made thereunder and in force at the time of commencement of the Ordinance, shall continue as if such license, lease, etc. vested in the Government and accordingly, such license, lease, etc. be construed as if it was given by the Government. In short, everything in relation to mines and mineral products, including any license, lease or mineral concession, would vest with the Government, if it was vesting in a person other than the Government before the commencement of the Amendment Ordinance, 1981, including extinguishment of obligation or liability of the Government to pay any royalty or other sum to a person in relation to his right or privilege to any mines and mineral products.
Whenever there is repeal of an enactment, the consequence laid down in Section 7 of "the BGC Act, 1904" will follow unless, as the consequence itself says, a different intention appears. In the case of a simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by the fresh legislation on the same subject, Court would undoubtedly have to look for the provisions of the new Act but only for the purpose of determining whether they indicate different intention.Page 60 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023
NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined Therefore, the submission made that Section 7A of "the BGC Act, 1904 "will not apply here and instead Section 7 would apply as different intention appears, is again a misconceived argument.
6.16 A further contention raised by the learned advocate for the plaintiffs that since "the Amendment Act, 1982" came to be repealed by "the Repealing Act, 2004", and in view of sub-section (3) of Section 4 of it, refers about Section 7 of "the BGC Act, 1904", which shall apply in relation to the repeal of the Act, specified in the Schedule as if the Act had been an enactment within the meaning of said Section 7 of "the BGC Act, 1904", cannot be invoked. Since Section 7 of "the BGC Act, 1904", shall apply to the repeal of the Act specified in the Schedule, which includes Part-II in the Schedule, "the Amendment Act, 1982" cannot be invoked to defeat the rights of the plaintiffs.
6.17 However, since it was felt expedient to repeal certain obsolete Acts, which includes "the Amendment Act, 1982", whereby amendments brought into the parent Acts brought on record, the amended Acts became obsolete, "the Repealing Act, 2004" repealed "the Amendment Act, 1982"
but not the amendments which were already brought on record by the said amendment Act. Along with the certain Acts, amendment Acts are shown in all the 4 parts of Schedule under Section 3 of "the Repealing Act, 2004". The Acts specified in the Schedule came to be repealed, which includes not only the Act but also amendment Acts by which amendments are brought in the parent Acts but the Acts Page 61 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined which have become obsolete, they were repealed. Even otherwise, Section 7 of "the BGC Act, 1904" shall not affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, as aforesaid and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if "the Repealing Act, 2004" had not been passed. On the contrary, what is sought to be claimed is that the amendment brought by "the Amendment Act, 1982"in the parent Act is repealed, is not the correct interpretation to be pressed into service. Any proceeding under that Act, if initiated, it shall not affect the same as if"the Repealing Act, 2004"had not been passed but filing of the present suit is not based on any proceedings initiated or continued under"the Act, 1953" or "the Amendment Act, 1982". If plaintiffs had filled in forms for the compensation of their so called rights to mines and mineral products under Section 21A of "the Act, 1953", subject to the other provisions in"the Act, 1953", they may follow or pursue that proceedings in accordance with law, as if"the Repealing Act, 2004 had not been passed. However, at any rate, they cannot pursue this First Appeal based on such argument.
6.18 The argument that issue as to the appellants, being Jagirdars and village Babsar being a proprietary Jagir, having all rights over the mines and mineral products in Survey Nos. 71 and 294 is now an issue estoppel between the parties having already been decided by the concerned competent Page 62 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined authorities and forums, having attained finality, cannot now be re-opened by the State, has no legs to stand. As such, by operation of law, that too, with retrospective effect, as on the appointed date i.e. 01.08.1954, all properties including even rights into the mines and mineral products vests with the State Government, and there cannot be any estoppel against the Statute. Since the constitutional validity is not under challenge and rightly so, as the Acts are placed in Schedule-IX of the Constitution of India and it has already been determined in the context of"the Act, 1953", the argument about issue estoppel is required to be rejected outright.
6.19 So far as constitutional validity of "the Amendment Act, 1982" is concerned, since the Act has been placed in the Ninth Schedule of the Constitution, and therefore, as held by Supreme Court in the case of Jilubhai Nanbhai Khachar v. State of Gujarat, reported in 1995 Supp.(1) SCC 596, the said amendment Act has received its protective canopy of the Ninth Schedule and it is saved by Article 31A of the Constitution of India. It is not open to anyone to challenge the validity of Section 10(1) of "the Act, 1953" after its amendment in 1982. Over and above that, Section 21A of"the Act, 1953", and Section 7 of "the Amendment Act, 1982", if read together in a harmonious manner, it would mean that apart from compensation which is payable under Section 21A of "the Act, 1953", the Government will not be liable to pay any other royalty or sum to any other person in relation to his right or privilege to the mines or mineral products. It is pertinent to note that, whereas Section 21A makes a specific Page 63 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined reference to the payment of compensation to Jagirdars, sub- section (3) of Section 7 of "the Amendment Act, 1982", on the other hand, refers to payment of royalty to'a person'. The ambit of Section 7(3) of "the Amendment Act, 1982" is wide enough to include not only the Jagirdars but to any other person, who may have a right or privilege with regard to mines or mineral products. All such rights and privileges were to cease and the liability of the Government was to come to an end. If viewed from another point, Section 7(3) of "the Amendment Act, 1982" brings to an end any obligation of the Government, which had existed prior to the commencement of the Ordinance preceding "the Amendment Act, 1982".
6.20 The argument that "the Amendment Act, 1982" has been repealed by "the Repealing Act, 2004" and appeal is a continuation of the original proceedings and the present proceedings have not concluded and are pending, the unamended Section 10 of "the Act, 1953" will apply and not Section 10, as substituted by "the Amendment Act, 1982", is without any substance. By repealing Act, what is repealed is"the Amendment Act, 1982" having become obsolete after amendments brought into the main Act. Not only that, Section 10 of "the Act, 1953"is substituted from enactment of "the Act, 1953", as opening word for substitution of Section 10, the substitution shall be and shall be deemed always to have been substituted, clearly signifies that Section 10 substituted by "the Amendment Act, 1982" is on and from the commencement of"the Act, 1953". Not only that, filing of a suit for recovery of amount is, not in any manner, any proceedings Page 64 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined under"the Act, 1953"and what repealing Act has repealed is"the Amendment Act, 1982", whereby amendment made into the various Acts and not the amendments thereby introduced. Therefore, the said submission is misconceived.
6.21 A judgment in the case of Ibrahim Uddin (Supra), relied on by the learned advocate for the plaintiffs, in respect of law of admission is of no consequence when any user of stones excavated from Survey Nos. 71 and 294, even if it is admitted, stood vested in the Government on and from 01.08.1954 in view of the law as discussed in detail hereinabove, such admission is of no use.
6.22 The another decision of the Apex Court in the case of Maharaj Shri Amarsinhji Himatsinhji (Supra), is also not helpful to the plaintiffs, as "the Amendment Act, 1982"with retrospective effect from 01.08.1954 vitally substituted Section 10 of "the Act, 1953" and on the contrary, Supreme Court in the said case, stated that it is not possible to accept the contention that a determination under Section 2(4)(i) of "the Act, 1953" to the effect that a particular Jagir is proprietary one necessarily implies that the grantee is entitled to mines and mineral products in the villages comprised in the grant, especially when having regard to the definition given in Section 2 (xviii) of "the Act, 1953", a Jagir could be proprietary without a right to mines and mineral products. As such, plaintiffs in this case have miserably failed to show from any angle that they had any subsisting right to the mines and mineral products in Jagir village on or before 01.08.1954. Not Page 65 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023 NEUTRAL CITATION C/FA/4063/1995 CAV JUDGMENT DATED: 09/11/2023 undefined only that, since even subsisting right stood extinguished on and from 01.08.1954 in view of"the Amendment Act, 1982", it is of no help to the plaintiffs. Therefore, even if Jagir Abolition Officer has while holding Jagir to be a proprietary Jagir, stated that they have right and interest in the soil, is also of no use. Furthermore, since the said decision of the Supreme Court is rendered in the year 1978, there was no scope to consider "the Amendment Act, 1982". Therefore, reliance placed on the said decision is also of no help to the plaintiffs.
7. In view of the above, the judgment and decree dated 31.03.1995 passed by the Civil Judge (Senior Division), Himatnagar in Special Civil Suit No.58 of 1988 is hereby confirmed and the present Appeal stands dismissed with no order as to costs.
(UMESH A. TRIVEDI, J.) (M. K. THAKKER, J.) Raj/ Siji Page 66 of 66 Downloaded on : Thu Nov 09 20:52:20 IST 2023