Bhavnagar Mahanagar Palika Through ... vs Heirs Of Decd.Virbhadrasinhji ... on 7 May, 2020

[Cites 38, Cited by 0]

Gujarat High Court

Bhavnagar Mahanagar Palika Through ... vs Heirs Of Decd.Virbhadrasinhji ... on 7 May, 2020

Bench: Bela M. Trivedi

      C/SCA/8792/2011                                       CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 8792 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS.JUSTICE BELA M. TRIVEDI                         Sd/-

==========================================================

1   Whether Reporters of Local Papers may be allowed to
    see the judgment ?                                                  YES

2   To be referred to the Reporter or not ?
                                                                        YES
3   Whether their Lordships wish to see the fair copy of the
    judgment ?                                                           NO

4   Whether this case involves a substantial question of law
    as to the interpretation of the Constitution of India or any         NO
    order made thereunder ?

==========================================================
      BHAVNAGAR MAHANAGAR PALIKA THROUGH MUNICIPAL
                 COMMISSIONER & 27 other(s)
                          Versus
HEIRS OF DECD.VIRBHADRASINHJI KRUSHNAKUMARSINHJI GOHIL & 9
                          other(s)
==========================================================
Appearance:
MR MIHIR JOSHI, Ld. Sr. Advocate for MR DHAVAL G NANAVATI(2578) for
the Petitioner(s) No. 1


DECEASED LITIGANT(100) for the Respondent(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) State
MR MEHUL S SHAH(772) for the Respondent(s) No. 4
MR NK MAJMUDAR(430) for the Respondent(s) No. 1.2
MR DEVEN PARIKH, Ld. Sr. Advocate for MR RUTUL P DESAI(6498) for the
Respondent(s) No. 5
MR SUNIL C PATEL(651) for the Respondent(s) No. 6
MR VISHWAS S DAVE(5861) for the Respondent(s) No.
2.1,2.10,2.11,2.12,2.13,2.14,2.15,2.16,2.17,2.18,2.19,2.2,2.20,2.21,2.22,2.23,
2.24,2.25,2.26,2.27,2.28,2.3,2.4,2.5,2.6,2.7,2.8,2.9
MS KHYATI P HATHI(346) for the Respondent(s) No. 7


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      C/SCA/8792/2011                                           CAV JUDGMENT



MR MIHIR THAKOR, Ld. Sr. Advocate for MS TRUSHA K PATEL(2434) for
the Respondent(s) No. 8
==========================================================

 CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

                             Date : 07/05/2020

                             CAV JUDGMENT

1. The present petition has been filed by the petitioner Bhavnagar Mahanagar Palika (erstwhile Municipality) (hereinafter referred to as "the petitioner Municipality") under Article 226/227 of the Constitution of India, challenging the common order dated 16.6.2011 passed by the Gujarat Revenue Tribunal (hereinafter referred to as "the Tribunal") in the Appeals being No.TEN.A.A.26 of 2006 and No.TEN.A.A.27 of 2006 filed by the respondent Nos.1.1 and 1.2 herein, under Section 9 of the Gujarat Revenue Tribunal Act, whereby the Tribunal has allowed the said Appeals and set aside the common order dated 6.5.2006 passed by the District Collector, Bhavnagar in Appeals No.124/93-94 and No.125/93- 94, filed under Section 203 of the Gujarat Land Revenue Code. The Tribunal has further held in the impugned common order that the appellants Page 2 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT i.e. the present respondent Nos.1.1 and 1.2 are the occupants of the subject land bearing Survey No.234 admeasuring 10 acres 35 gunthas of Moje Vadva, Taluka and District Bhavnagar (hereinafter referred to as "the subject land"), and are entitled to retain possession of the same.

2. The short facts giving rise to the present petition are that one Bhura Ranchhod was the original owner of the subject land bearing Survey No.234. The said land was acquired by the then State of Bhavnagar, for the town development purpose in the year 1937. On the merger of the State of Bhavnagar in the Union of India in the year 1948, an Ordinance called the Covenating States Administration Ordinance 1948 along with the Appendix-XXIV for the State of Kathiawar (subsequently known as the State of Saurashtra) was published in the Gazette on 8.3.1948. Pursuant to the said Covenant, an inventory of immovable properties to be retained by the then Maharaja Krishnasinhji as his private properties was prepared on 5.11.1951. Page 3 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT The said subject land bearing Survey No.234 was not included in the said Inventory, however the then Maharaja included the subject land along with other lands into his holdings in the Agricultural Land Ceiling proceedings initiated under the Agricultural Lands Ceiling Act. The said ALC proceedings culminated into the order dated 3.1.1974 passed by the Gujarat Revenue Tribunal in the Review Application No.30/1973, in which the Tribunal held inter alia that the said subject land and few other lands could not be included in the holdings of the then Maharaja for the purposes of Section 6(1) of the Agricultural Land Ceiling Act. In the meantime, the City Survey/Hak Chokshi proceedings were also initiated. The present petition arises out of the said City Survey proceedings which were contested and adjudicated upon between the petitioner Municipality, legal representatives of the then Maharaja Virbhadrasinhji and the legal representatives of the deceased Bhura Ranchhod, the original owner of the subject land.

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3. The case has a chequered history of more than 70 years, during which period various proceedings were filed by the parties and number of orders were passed by the various authorities and the Tribunal/Court. The said proceedings may be summarized as under:-

Sr. Date Particulars Page No. No.

1. 20.10.1937 Late Bhura Ranchhod was holder of 184 the land bearing Survey No.234 admeasuring A 1035 G. The then princely State of Bhavnagar intended to implement a Town Planning Scheme for the city of Bhavnagar and therefore along with others, the land of said Survey No.234 situated within the municipal limits of Bhavnagar, was acquired by the then State of Bhavnagar.

2. 06.12.1937 On the acquisition of the land of 186 Survey No.234, it was merged within the State of Bhavnagar vide the Hajur Tharav No.28 dated 13.10.1938 deleting the said Survey number from the revenue record of Bhura Ranchhod.

3. 13.10.1938 The Revenue Authority had deleted 188 Survey No.234 against the name of Bhura Ranchhod from the Revenue Records, and a correction was effected in Revenue Records vide correction endorsement Hajura Tharav No.28.

4. 19.01.1948 The erstwhile ruler of the State 190 of Bhavnagar, issued a Notification published in the Darbar Gazette on 24.1.1948 bearing Hajur Tharav No.37, for vesting of all the lands situated within the city limits of Bhavnagar City in the local Page 5 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT municipality. Over and above Bhavnagar all other municipalities of the cities situated within the limits of old State of Bhavnagar were also covered under the said Notification.

5. 21.04.1948 Patrak Date: 21.04.1948 : Patrak 200 (226 (ScheduleA) showing the survey to 237) numbers included in Gamtal (municipal areas). At page 8 of the ScheduleA (Patrak) Serial No.8 Survey No.234 is mentioned.

6. 8.3.1948 The Covenanting States 252 Administration Ordinance - IV of 1948 along with Appendix - XXXIV for State of Kathiawar.

7. 05.11.1951 On the basis of the covenants 272 and with Union of India by the 273 princely State of Saurashtra, an Inventory along with a map was prepared for the properties to be retained personally by Maharaja of Bhavnagar. The land of Survey No.234 was not shown as a part of the inventory.

8. 10.11.1955 In Village form No.6 (Hakk 279

Patrak) the Promulgation entry No.6 was effected in the revenue records as regards the lands held by the then Maharaja. Survey No.234 did not form part of and was not shown as the then Maharaja's holdings.

9. 29.06.1965 Revenue Entry No.718 in Form No.6 283 mutating names of legal heirs of Maharaja on his death was affected by the Revenue Authorities. Survey No.234 was not made a part of the said entry.

10. 10.08.1965 Government Resolution setting 286 aside the Government Resolution dated 26.3.1963 and restoring Government Resolution No.37 dated 19.1.1948 subject to the conditions mentioned therein.

11. 22.04.1969 In response to the notice dated 599 to 23.4.1962 issued by the Mamlatdar 611 and Agricultural Lands Tribunal, Page 6 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Bhavnagar under Section 20(1) of the Gujarat Agricultural Land Ceiling Act, 1960, the then Maharaja had submitted a statement showing his holdings, in which he had included Survey No.234 along with other lands.

The Agricultural Tribunal after necessary inquiry observed inter alia in the order dated 22.4.1969 that the Survey No.234 and others could not be included in the holdings of the Maharaja, as per the Revenue record, and therefore, an inquiry under Section 37(2) of the Land Revenue Code was required to be held in respect of the said lands. The Tribunal thereafter while declaring other lands as the excess vacant lands, observed that the Survey No.234 and others would be considered as the holdings of Maharaja, if necessary after the inquiry under Section 37(2) of the Code, by making supplementary order.

12. 01.11.1969 In the appeal being Ceiling 620 to Appeal No.7/1969 preferred by the 623 then Maharaja against the order of Agricultural Land Tribunal, the Assistant Collector, Bhavnagar passed the order, setting aside the said order of the Agricultural Land Tribunal and remanding the matter to the Tribunal to conduct the case again in accordance with the directions contained in the said order. It was observed inter alia that the Tribunal should have decided and given final finding on the type of land and the question of ownership thereof, as there was no provision for giving prospective ruling of certain lands in the Act.

13. 05.10.1970 On the remand of the case, the 628 to Mamlatdar and Agricultural 641 Tribunal, after visiting the site of the lands in question and Page 7 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT considering the evidence, more particularly of the Talati of Vadva examined before him, observed that Survey No.234 was included in the list showing the lands transferred to the Municipality for Town Improvement Scheme and that the said land was not proved to be of the holder's ownership i.e. of the Maharaja and his possession thereof was unauthorized. The Agricultural Tribunal declared other lands of the Maharaja as surplus lands after considering the lands, which were retainable lands of the Maharaja.

14. 26.03.1971 In the appeal being Ceiling 642 to Appeal No.1/197071 preferred on 654 behalf of the then Maharaja against the order dated 5.10.1970 passed by the Agricultural Tribunal, the Collector, Bhavnagar District held inter alia that Agricultural Lands Ceiling Act is applicable only to the agricultural lands and not to the uncultivable lands. In the holdings of Maharaja, Survey No.470/1 and Survey No.234 were uncultivable lands, and therefore, were excluded from the purview of Ceiling Act. It was further observed that the uncultivable lands were in the developed area of Bhavnagar City can be utilized for distribution to the landless people. The Collector, therefore, held that there were no lands in possession and holdings of the then Maharaja, which could be declared as surplus under the provisions of the said Act.

15. 31.03.1971 Sale deed was executed by the 931 to PowerofAttorney holder of the 943 heirs and legal representatives of the then Maharaja in favour of Palitana Sugar Mills Limited in respect of Survey No.470/1, 471/2, and 472. In the description of the lands sold, the Survey No.234 was shown as Page 8 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT situated on the Western side of Survey No.470/1.

16. 28.12.1971 Being aggrieved by the order 655 to dated 26.3.1971 passed by the 661 Collector, the State of Gujarat had preferred Revision Application No.LCAR27/1971 before the Gujarat Revenue Tribunal (GRT) under Section 35 of the Agricultural Lands Ceiling Act on the ground that the Collector had not given any opportunity of hearing to the State. The Tribunal, therefore, set aside the order passed by the Collector and remanded the case for hearing the appellant afresh after giving due notice to the parties and dispose it of in accordance with law as early as possible.

17. 26.03.1973 The Collector, Bhavnagar after 667 to remand of the case from GRT 690 dismissed the appeal preferred by the then Maharaja and upheld the order dated 5.10.1970 passed by the Agricultural Tribunal, with certain modifications as mentioned therein by directing the ALT to give option to the appellant i.e. the then Maharaja for selecting the land out of the disputed Survey Nos.233, 234, 249 and 472 of Vadva and declared the land out of the said Survey Numbers as surplus lands according to the merits.

18. 03.01.1974 The Revision Application filed on 706 to behalf of the then Maharaja 743 before the GRT under Section 38 of the Agricultural Lands Ceiling Act against the order dated 26.3.1973 passed by the Collector was allowed by the GRT by declaring that the lands admeasuring in all 910 acres 2 gunthas as stated in paragraph 26 of the order shall be taken into account for the purpose of Section 6(1) of the said Act and the case was remanded to the Mamlatdar and Agricultural Page 9 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Tribunal for proceeding as required by Section 20 of the said Act. It was held by the GRT in paragraph 20 that the said Survey Numbers were included in the Village Site and that Agricultural Lands Tribunal was right in not taking into account the said lands of Survey No.233 and No.234, for the purpose of Section 6(1) of the said Act, and that the Collector was not justified in directing to include the said lands in the holdings of the applicant i.e. the then Maharaja.

HAK CHOKSHI PROCEEDINGS

1. 31.03.1971 In the meantime, City Survey 802 also Officer passed the order on at 1021 31.3.1971, directing to enter name of the then Maharaja Virbhadrasinhji in the record in respect of Survey No.234.

2. 20.04.1981 An appeal was preferred before 288 the Deputy Collector, Bhavnagar refer against the said order of Inquiry Officer of City Survey dated 31.03.1971 and matter was remanded to the City Survey Superintendent for fresh decision. The City Survey Superintendent again directed to enter the name of Maharaja Virbhadrasinhji Gohil in City Survey records, as per order dated 20.4.1981.

3. 25.05.1982 The Deputy Collector, Bhavnagar 288 held that the land was Government land, in the Appeal No.5/198081 filed by Bhavnagar Nagarpalika against the order dated 20.04.1981 passed by the City Survey Superintendent.

4. 11.03.1983 Appeals were preferred by 293 to Maharaja Virbhadrasinhji Gohil 294 and Bhavnagar Municipal Corporation against the aforesaid order dated 25.05.1982 being Appeal Case No.44 of 1982 and Appeal Case No.46 of 1982. The Collector, Bhavnagar set aside the order of the Deputy Page 10 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Collector, Bhavnagar, dated 25.05.1982 and the matter was remanded back to the Deputy Collector, Bhavnagar, for taking fresh decision after giving opportunity to all the parties for adducing necessary evidences.

5. 08.08.1983 The Deputy Collector, Bhavnagar 298 reconsidered the matter, however, remanded the matter back to the City Survey Superintendent, on the ground that it required evidence to be recorded.

6. 18.08.1984 The City Survey Superintendent 308 to conducted the proceedings on 311 remand and held that the parties have not produced any additional evidence and therefore the land was held as Government open land (padtar land).

The legal heirs of late Bhura Ranchhod had made an application through their Power of Attorney holders before the City Survey Superintendent to join them as parties but the City Superintendent rejected the application for joining party.

The aforesaid decision of the City Survey Superintendent was challenged before the Deputy Collector, Bhavnagar by way of three different appeals. (1) Appeal No.3/8485 filed by legal heirs of Bhura Ranchhod against rejection of their application for joining as party; (2) Appeal No.6/8485 filed by the Municipal Corporation, Bhavnagar; (3) Appeal No.18/8485 filed by Maharaja Virbhadrasinhji Gohil for holding the land in question Survey No.234 as Government land.

7. 23.10.1990 The Deputy Collector, Bhavnagar 353 to passed common order in all three 369 appeals No.3/8485, 6/8485 & 18/8485. The Deputy Collector allowed the appeal No.3/8485 filed by legal heirs of Bhura Ranchhod and held that the heirs Page 11 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT of Bhura Ranchhod are the holders of the land, and rejected the appeals No.6/8485 & 18/8485 filed by Bhavnagar Municipal Corporation and Maharaja Virbhadrasinhji Gohil.

8. 27.05.1991 Being aggrieved by the said order 383 to dated 23.10.1990, the Appeal 391 Nos.38/9091 and 56/9091 were filed by Bhavnagar Municipal Corporation and Maharaja Virbhadrasinhji Gohil respectively. The Collector Bhavnagar allowed the appeals in favour of The Bhavnagar Municipal Corporation and set aside the order of the Deputy Collector dated 23.10.1990 and order of the City Survey Superintendent dated 18.08.1984. The Collector further held that Bhavnagar Municipal Corporation was in possession of the Revenue Survey No.234 (City Survey No.3023/B).

9. 18.06.1993 Being aggrieved by the said order 400 dated 27.5.1991, the Appeal No.TEN/AA/4091 was filed by the legal heirs of Bhura Ranchhod.

The Gujarat Revenue Tribunal set aside the order of the Collector and remanded back the matter for fresh disposal in accordance with law after allowing the parties to adduce further evidence and also directed to hear Government representative.

10. 27.05.1994 The Deputy Collector, Bhavnagar 423 to after the case was remanded by 459 the Gujarat Revenue Tribunal, Ahmedabad passed the order that the legal heirs of Bhura Ranchhod were to be recorded as occupiers in City Survey record.

11. 21.06.1994 Appeal No.124/9394 was filed by Maharaja Virbhadrasinhji K. Gohil against the order dated 27.05.1994 passed by the Deputy Collector, Bhavnagar.

12. 27.06.1994 Appeal No. 125/9394 was filed by The Bhavnagar Municipal Corporation against the order Page 12 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT dated 27.05.1994 passed by the Deputy Collector, Bhavnagar.

13. 06.05.2006 The Collector Bhavnagar allowed 115 to the Appeal No.125/9394 preferred 183 the Bhavnagar Municipal Corporation, and directed the City Survey Superintendent to record the name of Bhavnagar Municipal Corporation in the City Survey record as the occupier in respect of the land bearing Survey No.234.

The Appeal No.124/9394 filed by Maharaja Virbhadrasinhji Gohil was dismissed.

14. 16.06.2011 Common Order was passed by the 42 to 75 Gujarat Revenue Tribunal at Ahmedabad in Appeals No.TEN/AA/2606 and 2706 filed by the then Maharaja against the order of the Collector dated 06.05.2006 passed in appeal No.124 & 125/9394. The appeals filed by Maharaja against the order passed by the Collector, Bhavnagar were allowed by the Revenue Tribunal.

15. 18.06.2011 A day after the order was passed; 578 a Sale Deed No.778 was executed by the power of attorney holder of the legal heirs of the Maharaja in favour of 1. Kasturi Construction Property and Land Developers. 2. M.G.P. Holdings & Infrastructures. 3. Saibaba Land Developers and submitted for registration.

16. 30.08.2012 Bhura Ranchhod had preferred an 10.09.2012 appeal challenging the order dated 06.05.2006 passed by the Collector, Bhavnagar before Special Secretary Revenue Department, Ahmedabad, which was permitted to be withdrawn by the Special Secretary Revenue Department, Ahmedabad vide order bearing No.MVV/HKM/Bhavan/9/2006. Page 13 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT

4. .The respondent Nos.2/1 to 2/28 claiming to be the heirs and legal representatives of the deceased Bhurabhai Ranchhodbhai, the original owner of the subject land, were permitted to be brought on record as per the order dated 12.12.2011 passed in the Civil Application No.9903 of 2011 in the present petition. The respondent No.3 is the State of Gujarat. The respondent Nos.4 to 8 were joined as the party- respondents pursuant to the separate orders dated 18.7.2017 passed by the Court in various Civil Applications. The respondent No.4 Saibaba Land Developers was joined as the party respondent pursuant to the order dated 18.7.2017 passed in Civil Application No.13628 of 2014, the respondent No.5 Palitana Sugar Mills Pvt. Ltd., was joined as per the order passed in Civil Application No.9657 of 2012, the respondent No.6 Ghusabhai Mavjibhai Baraiya in Civil Application No.8863/12692 of 2011, the respondent No.7 MGP Roldings & Infrastructures in Civil Application No.12692 of 2011, and the respondent No.8 Kasturi Construction Property & Land Developers was joined as per the order Page 14 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT passed in Civil Application No.13373 of 2011.

5. Submissions :-

The learned Sr. Advocate Mr.Mihir Joshi appearing with the learned Advocate Mr.Dhaval Nanavati for the petitioner Bhavnagar Mahanagar Palika broadly made the following submissions:-

(i) As regards the locus standi of the petitioner to file the present petition, it was submitted that the Bhavnagar Municipality (Sudhrai) existed even during the time of the erstwhile Ruler. Various parcels of lands were acquired from time to time by the Bombay State for the purpose of the Municipality for Town improvement and its Krushnanagar extension. The subject land was acquired as part of the land admeasuring 597 Vighas for the said purpose and the compensation was paid to the owners from the Town Improvement Department. The subject land was thereafter transferred to the Municipality by the State, and therefore, the property had vested in the Bhavnagar Municipality after its acquisition. All the Page 15 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Municipal Acts contained provisions providing that the lands transferred to the Municipality by the government for public purposes belonged to the Municipality. In any case, the Municipality was entitled to deal with the lands even of the State coming within its limits by virtue of Hajur Hukam No.37 dated 19.1.1948. The subject land was also included in the limits of the Municipality in 1937-38 and since then it was in legal possession of the Bhavnagar Municipality. The petitioner Municipality was also a party before the Tribunal as well as the other authorities in the proceedings right from the beginning.

(ii) Initially the proceedings with regard to the Revenue Entries for mutating the names of the legal heirs of the Maharaja on his death were initiated by the Revenue Authorities, and thereafter the Agricultural Lands Ceiling Tribunal had passed the order in the ALC proceedings, which had continued for years together till the impugned order Page 16 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT was passed by the Revenue Tribunal, and therefore, the proceedings could not be said to be proceedings under Section 37(2) of the Bombay Land Revenue Code (hereinafter referred to as "the Code"), as the proceedings cannot change the character in the course of appeals and remand.

(iii) No procedure as laid down in the manual for the inquiry under Section 37(2) of the Code was followed, as sought to be submitted by the other side. The proceedings were initiated, when a clarification was sought for and on behalf of the Ex-Ruler regarding the boundary of Survey No.470/1. The original Tippan was not available, and therefore, the Ex-Ruler claimed Durasti on the basis of his possession of the subject land. In the said proceedings there was no record produced to indicate as to how the Ex-Ruler had come into possession of the subject land. Such proceedings never assumed the character of the inquiry under Section 37(2) of the Code.

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(iv) No such contention that an inquiry under Section 37(2) of the Code was concluded, was taken before the Tribunal in the Agricultural Land Ceiling proceedings culminating in the order dated 3.1.1974 after the order dated 31.3.1971, concluding that the subject land had to be excluded from the holdings of the Ex-Ruler.

(v) By the order dated 23rd October, 1990, the Deputy Collector had held that the legal heirs of Bhura Ranchhod were the holders of the land, and on rejecting the appeals of the petitioner Municipality and the Ex- Ruler, setting aside the order of the City Survey Superintendent dated 18.8.1984, who had held that the subject land was Government land. Since that stage, the proceedings were contested and adjudicated upon between the three parties i.e. the Municipality, Ex-Ruler and the legal heirs of Bhura Ranchhod and not the State, and therefore also, the subject proceedings could not be said to be the proceedings Page 18 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT under Section 37(2) of the Code.

(vi) The respondent No.5, who is the transferee could not raise the contention, which was not raised by the transferor i.e. the Ex-Ruler in the proceedings. Even otherwise, Article XI(3) of the Covenant provided that if a dispute arose as to whether any item of the property was private property of the Ruler or State property it would have to be referred to the Nominee of the Government of India for final and binding decision and Article 363 of the Constitution of India also prohibits interference by the Court in the disputes relating to Covenants. Therefore, under the garb of a boundary dispute proceedings, initiated by the Ex-Ruler, now the contention of ownership on the basis of a purported inquiry under Section 37(2) could not be permitted to be raised in the petition.

(vii) It was evident from the Note dated 10.3.1948 made by the Officers in the Page 19 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Government of Saurashtra Bhavnagar Administrative Council, recording the necessity of inclusion of all the lands, as specified in the Schedules to the Note within Gamtal, Schedule-A of the Note listed out all the lands acquired for Krushnanagar, in which the subject land admeasuring 10 acres 35 gunthas was included in the list.

(viii) As per Exh-E the private properties of the Ruler included Survey No.470 admeasuring 58 acres 22 gunthas and not the subject land of Survey No.234 admeasuring 10 acres 35 gunthas, which established that the subject land was never held as the private property of the Ex-Ruler and that the area of two Survey numbers 234 and 470 were distinct and did not overlap against each other.

(ix) The Ex-Ruler had submitted an inventory of immovable properties to be his private properties in terms of Article XI thereof by letter dated 5.11.1951, the Ex-Ruler of Navanagar (Jamnagar), who was the President of the Presidium had addressed letter to the Page 20 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Ex-Ruler of Bhavnagar, who was incidentally the Vice President of Presidium conveyed the final inventory as settled and accepted, which was enclosed with the letter. The said inventory contained various properties including Survey No.470/1 but did not include the subject land.

(x) Subsequent entries in the Revenue Record in relation to the holdings of the Ex-Ruler dated 23.12.1955 referred only to Survey No.470/1 and not the subject land. Similarly the Entry dated 27.7.1965 mutating the names of the heirs upon the demise of the Ex-Ruler on 2.4.1965 did not include the subject land, and therefore, the contention of the heirs of Ex-Ruler that the subject land was the private property of the Ruler was absolutely baseless. The subject land was acquired by the State for Town Development i.e. for public purpose, whereas Survey No.470 was a private property retainable by the Ex-Ruler as Vidi land as per the applicable formula, and therefore, was Page 21 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT included in the inventory.

(xi) The judgement relied upon by the learned Advocate for the respondent No.5 in case of His Highness Maharaja Pratap Singh Vs. Her Highness Maharani Sarojini Devi and Ors., reported in 1994 Supp (1) SCC 734 was in favour of the petitioner as it made the distinction between the private property and State property, albeit held by the Ruler in the contest of the White paper on Indian State and the Covenants entered into pursuant to the same.

(xii) The Tribunal had committed an error by accepting the claim of the Ex-Ruler of adverse possession, which contention was never raised on behalf of the Ex-Ruler while initiating the proceedings culminating into the order dated 31.3.1971. The said contention was also not raised in the memo of Revision filed before the Tribunal. The finding of the Tribunal recording the presumption of ownership of Ex-Ruler on one hand and that of adverse possession on the Page 22 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT other are self-contradictory.

(xiii) The subject land was never amalgamated with Survey No.470/1, inasmuch as in the proceedings before the Mamlatdar and Agricultural Land Ceiling Tribunal, the heirs of the Ex-Ruler had referred both the Survey numbers with their measurements separately indicating that there was no overlap. The ALT had clearly held that the land including the subject land Survey No.234 could not be said to be of the ownership of the Ex-Ruler. The said order was upheld by the Gujarat Revenue Tribunal vide the order dated 3.1.1974 and the said order had attained finality.

(xiv) In the sale deed dated 31.3.1971 executed by the Ex-Ruler in favour of the respondent No.5 Palitana Sugar Mills, both the lands were distinctly mentioned and only Survey No.470/1 along with some other lands were sold thereby. The description and boundary of the lands sold more particularly for Survey No.470/1 referred to the subject Page 23 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT land bearing Survey No.234, as being situated to the western side of the sold Survey No.470/1. Thus, the contention of the respondents about the merger of two survey numbers and the Survey No.234 having lost its identity had no substance.

(xv) The legal heirs of Ex-Ruler had also allegedly executed a sale deed in favour of the respondent M/s.Kasturi Constructions in respect of the Survey No.234 on 18.6.2011, and therefore also, the said Survey No.234 was clearly separately identifiable parcel of lands. The said sale deed was executed on 18.6.2011 i.e. on the very next day of the impugned order dated 16.6.2011 as corrected on 17.6.2011, which clearly cast a shadow over the proceedings before the Tribunal. (xvi) There was also no order passed by any authority amalgamating two survey numbers, as specifically observed by the Collector in his order impugned before the Tribunal. (xvii) The claims made by the newly added Page 24 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT private respondents were contradictory inter se, inasmuch as while both claim that Ex-Ruler was in possession of the subject land, the respondent Palitana Sugar Mills claims that it was amalgamated in Survey No.470/1 purchased by it, whereas the respondent M/s.Kasturi Constructions claims that the subject land was distinct from Survey No.470/1 and was sold to it. Since both the said respondents claim through the Ex-Ruler, they cannot claim better title or right than the Ex-Ruler himself. (xviii)The maps and other documents relied upon by the respondents to show the possession of the Ex-Ruler also established that both the survey numbers were different and never merged with each other. The respondent Palitana Sugar Mills never raised any grievance about the area of Survey No.470/1 being lost in any of the proceedings before the authorities. (xix) The Tribunal had committed an error apparent on the face of the record by Page 25 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT holding in the impugned order that the Ex- Ruler was in possession of the subject land since 1937 and that the subject land was not included in the private property of the Ex- Ruler by mistake in the inventory list, completely overlooking the contemporaneous record, which established that the Ex-Ruler had accepted the subject land as not his private property, the same having been excluded from the inventory.

(xx) The Tribunal had also committed an error in misinterpreting the documents and the orders passed by the various authorities in the proceedings filed by the parties and giving findings on the issues which were never incorporated in the revision memo filed by the respondent, nor argued by the parties.

(xxi) The Tribunal had committed an error by drawing a presumption of prima facie title based on possession, overlooking the findings of the Agricultural Land Ceiling Tribunal holding such possession of the Ex- Page 26 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Ruler as unauthorized, which finding was confirmed by the GRT in the order dated 3.1.1974.

6. The learned Sr. Advocate Mr.Deven Parikh for the learned Advocate Rutul Desai for the respondent No.5 - Palitana Sugar Mills had made elaborate submissions as under:-

(i) The petition at the instance of the petitioner Municipality was not maintainable in view of the decision of the Supreme Court in case of Bhavnagar Municipality Vs. Union of India, reported in AIR 1990 SC 717, in which it was held inter alia that the Corporation had no right, title or interest in the lands, similar to the subject land and at the most, the Corporation would be an agent or authorized entity of the Government to execute the documents in respect of the Government lands.

(ii) The State Government had withdrawn the rights of the Corporation under Hajoori Resolution No.37 dated 19.1.1948, and the Page 27 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT same were reinstated subsequently vide the letter dated 10.8.1965, subject to the conditions mentioned therein. One of the conditions was that the Corporation's powers under Resolution No.37 were restricted to those areas within the limits of the Municipality as on 19.1.1948 and would not apply to any subsequent and extended limits.

(iii) In the present case Survey Nos.233 and 234 were made Kami from Simtal and were added to Gamtal on 21.4.1948 only, meaning thereby on the date of passing of Hajoori Tharav on 19.1.1948, the subject land was not within the Municipality limits of Bhavnagar.

(iv) As per the judgement of the Supreme Court in case of Palitana Sugar Mills Ltd. Vs. State of Gujarat, reported in (2004) 12 SCC 645, the Entry No.1950 had become final, and therefore, could not be disturbed. Accordingly, the total area of various survey numbers, including Survey No.470/1 must total up to 952 acres. As per the Page 28 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Village Form No.7/12 in respect of Survey No.470/1, which was prepared on the basis of Entry No.1950 showed that the area of Survey No.470/1 was 58 acres and 22 gunthas. Therefore, whether the subject Survey No.234 was in the inventory or not, was irrelevant and the entitlement of total lands as narrated in Entry No.1950 along with the abstract of Village Form No.7/12 totaling 952 acres cannot be gone into by any Court or authority.

(v) The issues decided by the Tribunal and other authorities pertaining to the possession, adverse possession, settled possession, title etc., are the issues of facts and such findings of facts should not be interfered with by the High Court under Article 226/227 of the Constitution of India. In this regard reliance has been placed on the judgements of the Supreme Court in case of Rae Bareli Vs. Bholenath, reported in (1997) 3 SCC 657, in case of State of A. P. Vs. Smt. Pramela Mod, reported in (2006) 13 SCC 147, and in Page 29 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT case of State of Gujarat Vs. Allauddin Baburiya, reported in 1991 SCC (Suppl.) (1)

146.

(vi) The issues involved in the inquiry under Section 37(2) of the Gujarat Land Revenue Code are of a civil nature, the remedy for which is provided under Section 37(3) of the said Code. Hence, alternative efficacious remedy being available under Section 37(3) of the Code, the petition ought not to be entertained.

(vii) In the ALC proceedings between the Government and Maharaja, it was held that the Maharaja was in the physical possession of the subject land right from the execution of the convenant and the period prior that to, and since Maharaja had fenced the subject land at the relevant time and had remained in possession thereof, such issues of possession cannot be reopened in any subsequent proceedings, including under Section 37 of the Code. Such issue would be also barred by the principle of constructive Page 30 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT res judicata.



   (viii)         Placing       reliance        on   the   decisions            of

        the        Supreme         Court        in     case        of        Hope

        Plantations             Ltd.      Vs.    Taluk      Land        Board,

Peermade and Anr., reported in (1999) 5 SCC 590, in case of Bhanu Kumar Jain Vs. Archna Kumar and Anr., reported in (2005) 1 SCC 787 and in case of Satyendra Kumar and Ors. Vs. Raj Nath Dubey and Ors., reported in (2016) 14 SCC 49, Mr.Parikh submitted that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated. The principles of res judicata can be invoked not only in separate proceedings but they also get attracted in subsequent stage of the same proceedings.

(ix) In the remand proceedings, after the ALC proceedings, the matter was referred to the Prant Officer, Bhavnagar and the said proceedings were required to be construed as the proceedings under Section 37 of the Page 31 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Code. Even the order dated 31.3.1971 passed by the City Survey Superintendent showed that it was an inquiry as contemplated under Section 37.

(x) As per the Collector Manual also the proceedings were required to be construed as the one under Section 37(2) of the Code held by the Survey Officer. The notice issued in the course of proceedings to the other side stated that it was under

Section 37(2) of the Code and the order passed in the said proceedings by the City Survey Superintendent also pointed out that it was under Section 37 of the Code.

(xi) There were innumerable documents on record to show that Maharaja was in possession of the subject land, and the presumption of title as a result of possession was rightly raised by the Tribunal. In this regard, Mr.Parikh has relied upon the decision in case of State of Andhra Pradesh and Ors. Vs. Star Bone Mill & Fertilizer Co., reported in (2013) 9 SCC 319.

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(xii) The Inquiry Officer had considered the original map of the inventory (not available on the record now) and had arrived at a conclusion that Survey Nos.233 and 234 were added to Survey No.470/1 and that 58 ares of Survey No.470/1 could be achieved only by adding the area of Survey Nos.233 and 234.

Thus, Maharaja was claiming this land as the lands given to him as his personal property at the time of execution of covenant, and it is not open for the Court to decide whether the Government was right in granting this additional property to the Maharaja or not.

(xiii) The white paper indicating the settlement between the Maharaja and the Government was prepared on the basis of 'give and take' and no strict rules of title were followed. Therefore, the argument that in 1937 the subject land was acquired for Town Improvement, and therefore, could not be the personal property of the Maharaja had no substance.

(xiv) In the inquiry under Section 37 of the Page 33 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Code, it was found that the Maharaja had become the owner by adverse possession or at least by settled possession and that the subject land was part of the lands given at the time of convenant, and therefore, no title was attached to it.

(xv) Under Section 10 of the ALC Act, the possession has to be a legal possession with title and the Maharaja had claimed the title of the subject land in the ALC proceedings. The Maharaja had also written the letter to the Government claiming ownership of the subject land, and therefore also, the Maharaja had become the owner by adverse possession.

(xvi) The description of the land mentioned in the sale deed of 1971 was primarily wrong because a part of Survey Nos.233 and 234 was given to others under the Town Improvement Scheme. Merely because the word 'paiki' was not written in the description of the land, which was subject matter of the sale deed, it could not be said that there was separate Page 34 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Survey Nos.233 and 234.

(xvii) Article 363 of the Constitution of India was not applicable to the facts of the present case and that too, cannot be permitted to be raised at the fag end of the proceedings.

7. The learned Advocate Mr.N. K. Majmudar for the heirs and legal representatives of the deceased respondent No.1 Dr. Virbhadrasinh Gohil, while adopting the submissions of Mr.Deven Parikh, made further following submissions:-

(i) The subject land bearing Survey No.234 was in possession of the Maharaja since 1937-38 when it was held by the then Bhavnagar State and had remained in possession all throughout. At the time of the merger of Bhavnagar State with the Union Territory of India, the said land by mistake was not included in the private properties of the Maharaja, however, it was included in Maharaja's another adjacent property i.e. land baring Survey No.470/1, as observed by Page 35 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the Tribunal. The said finding, therefore, may not be disturbed.

(ii) Even considering the measurements of Survey Nos.233 and 234, it was required to be inferred that the said lands were included in the total area of Survey No.470/1. The petitioner Bhavnagar Mahanagar Palika had miserably failed to establish that in the year 1937 or thereafter they were lawfully inducted in the subject land or they had lawfully taken possession of the subject land from the Maharaja.

(iii) The subject land was acquired by the then State of Bhavnagar in the year 1937-38 and the amount of compensation was paid by the State, and therefore, the ancestors of the Maharaja had become the lawful owners and occupiers of the said land. However, on the merger of Bhavnagar State into Union Territory of India in 1948 a mistake had occurred while preparing the inventory as described in City Survey of Chokshi Case No.CBS/City Survey/366 dated 31.3.1971 by Page 36 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT not showing the said Survey No.234 as the property of Maharaja though he was in actual possession of the said land and was included in the adjacent land bearing Survey No.470/1.

(iv) The Tribunal had rightly appreciated the documents on record and set aside the order passed by the Collector, as the Bhavnagar Mahanagar Palika had failed to establish its possession.

(v) There being disputed questions of facts involved in the present petition, the petitioner Bhavnagar Mahanagar Palika ought to have challenged the order of the Tribunal before the Civil Court for adjudication of its claim.

8. The learned Sr. Advocate Mr.Mihir Thakor appearing for Ms.Trusha Patel for the respondent No.8 Kasturi Construction Property and Land Developers made the following submissions:-

(i) The proceedings came to be initiated by the City Survey Officer pursuant to the Page 37 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT order dated 22.4.1969 passed by the Mamlatdar and Agricultural Land Revenue Tribunal in the Ceiling Case, and therefore, the said proceedings were the proceedings under Section 37(2) of the Code. It was pursuant to the said order, the City Survey Officer held the inquiry and passed the order dated 31.3.1971 that the subject land be entered in the name of Maharaja. The said proceedings also got separated from the order dated 25.5.1982 passed by the Deputy Collector and the Notice dated 12.6.1984. As clear from the panchnama dated 18.5.2006, the Bhavnagar Mahanagar Palika itself had treated the proceedings as the one under Section 37(2) of the Code.

(ii) The writ petition under Article 226/227 challenging the order of final Appellate Authority under Section 37(2) is not maintainable, as the remedy available to the person aggrieved by the result of the inquiry is to file a suit for determination of title as provided under Section 37(3) of Page 38 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the Code.

(iii) The inquiry under Section 37(2) being formal in nature and subject to the result of the suit in a competent Civil Court, the remedy of suit would be lost if the writ petition was entertained. In this regard reliance is placed on various decisions of this Court.

(iv) The scope of interference by the High Court in exercise of writ jurisdiction with regard to the impugned order passed by the GRT is even otherwise limited and the Court would not reappreciate the facts or examine the disputed questions of facts beyond the scope of power under Article 226/227 of the Constitution of India, rendering statutory remedy of filing the suit meaningless.

(v) The petitioner Bhavnagar Mahanagar Palika has no locus or even a prima facie title to make claim over the subject land, as the subject land was added to Gamtal vide the order dated 21.4.1948.Even the Page 39 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Resolution dated 10.8.1965 of Government of Gujarat did not confer any right on the Municipal Corporation in respect of the land which came to be included within its limits after 19.1.1948.

(vi) As per the decision of the Supreme Court in case of Bhavnagar Municipality Vs. Union of India and Anr., reported in 1989 (supp.) (2) SCC 758, even the Resolution dated 10.8.1965 could not be treated as a transfer of title of the lands in favour of the Bhavnagar Mahanagar Palika.

(vii) Even if it was assumed that the subject land was acquired for Town Planning, mere acquisition of land for "Shaher Sudharana"

did not confer any title on the Bhavnagar Mahanagar Palika. At the relevant time, the "State" and "Ruler" were one and the same, and there was no concept of Mahanagar Palika as a separate body Corporate , as it exists today, which could hold the title of property, which was separate and distinct from the Maharaja.

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(viii) The State had waived its right to claim the subject land as it did not challenge the order dated 23rd October, 1990 passed by the Deputy Collector granting the land to Bhura Ranchhod, the order dated 27th May, 1991 passed by the Collector, granting the land to the Municipal Corporation, the order dated 27th May, 1994 passed by the Deputy Collector granting land to Bhura Ranchhod and the order dated 6.5.2006 passed by the Collector granting land to the Bhavnagar Mahanagar Palika. The State has also not challenged the order dated 16.6.2001 passed by the Gujarat Revenue Tribunal, nor has filed any suit.

(ix) The petitioner Bhavnagar Mahanagar Palika had not produced any document to show that it was ever in possession of the subject land whereas the possession of the land with Maharaja was established as recorded in the order dated 22.3.1969 passed by the Mamlatdar and Agricultural Land Tribunal and the order dated 31.3.1971 Page 41 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT passed by the City Survey Officer.

Therefore, the settled possession of Maharaja was sufficient to decide the claim under Section 37(2) of the code and that it was not necessary to examine or interpret the document of accession or covenant while holding the inquiry under Section 37(2) of the Code. In the alternative, it was the State which can claim title as against the Maharaja by virtue of the document of accession/inventory which the State has chosen not to do so.

(x) The finding of the Tribunal under Section 37(2) of the Code has attained finality as no suit has been filed within the prescribed time period under Section 37(3) of the Code, and therefore, the petition at the instance of the petitioner Bhavnagar Mahanagar Palika may not be entertained.

9. At the outset, it may be stated that the present petition has been filed by the petitioner Nagarpalika, challenging the legality and Page 42 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT validity of the common order dated 16.6.2011 passed by the Tribunal in the Appeals Nos.26/06 and 27/06 filed by the legal heirs of the respondent No.1 i.e. the then Maharaja Virbhadrasinh, under Section 9 of the Gujarat Revenue Tribunal Act. As stated earlier, vide the said order, the Tribunal had allowed the said Appeals and set aside the order dated 6.5.2006 passed by the Collector in favour of the Bhavnagar Municipality. It may be noted that though in the cause-title of the petition, the petitioner Municipality has invoked Articles 226 and 227 of the Constitution of India for challenging the said order passed by the Tribunal, in the prayer clause of the petition, the petitioner has prayed to issue a writ of certiorari or any other writ, order, or direction under Article 226 of the Constitution of India for quashing and setting aside the order passed by the Tribunal. At this juncture, it may be noted that there is a difference between the writ to be issued under Article 226 of the Constitution of India and the power of superintendence conferred upon the High Court Page 43 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT under Article 227 of the Constitution of India. In case of Surya Dev Rai Vs. Ram Chander Rai and Ors., reported in (2003) 6 SCC 675, the Supreme Court relying upon the distinction made between Articles 226 and 227 of the Constitution of India in case of Umaji Keshao Meshram and Ors. Vs. Radhikabai, W/o Anandrao Banapurkar and Anr., reported in (1986) SCC (suppl.) 401, held inter alia that though there was a difference between the scope of Articles 226 and 227, the same was obliterated. The Larger Bench in case of Radhey Shyam and Anr. Vs. Chhabi Nath and Ors., reported in (2015) 5 SCC 423 while disapproving the said observation/finding recorded in case of Surya Dev Rai (supra), held as under:-

"22. We may now come to the judgment in Surya Dev Rai. Therein, the appellant was aggrieved by denial of interim injunction in a pending suit and preferred a writ petition in the High court stating that after CPC amendment by Act 46 of 1999 w.e.f. 1 July, 2002, remedy of revision under Section 115 was no longer available. The High Court dismissed the petition following its Full Bench Judgment in Ganga Saran to the effect that a writ was not maintainable as no mandamus could issue to a private person. The Bench considered the question of the impact of CPC amendment on power and jurisdiction of the High Court to Page 44 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT entertain a writ of certiorari under Article 226 or a petition under Article 227 to involve power of superintendence. The Bench noted the legal position that after CPC amendment revisional jurisdiction of the High Court against interlocutory order was curtailed.

23. The Bench then referred to the history of writ of certiorari and its scope and concluded thus :

"18. Naresh Shridhar Mirajkar case was cited before the Constitution Bench in Rupa Ashok Hurra case and considered. It has been clearly held: (i) that it is a wellsettled principle that the technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can the writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme.

19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.

24. The difference between Articles 226 and 227 of the Constitution was well brought Page 45 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT out in Umaji Keshao Meshram v. Radhikabai [1986 Supp. SCC 401]. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.

25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of Page 46 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well."

10. The Court is quite alive to the settled legal position that the power of superintendence conferred under Article 227 of the Constitution should be exercised very sparingly and only in appropriate cases in order to keep the Page 47 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT subordinate Courts and the Tribunals within the bounds of their authority and not to correct mere the errors. It is also well settled that the High Court should not convert itself into the Court of appeal while exercising jurisdiction under Article 227 of the Constitution of India and should not indulge in re-appreciation or valuation of evidence or correct errors drawing inference, or correct errors of mere formal or technical character. Nonetheless as held by the Constitution Bench of the Supreme Court in case of Mani Nariman Daruwala alias Bharucha (Deceased) through LRs and Ors., reported (1991) 3 SCC 141, the High Court can set aside or reverse the findings of inferior Court or Tribunal in cases where there is no evidence or where no reasonable person could possibly have come to the conclusion which the Court or the Tribunal has come to. Hence, the exercise of powers under Article 227 must be restricted to the grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. The Court may also exercise the jurisdiction when there is patent perversity in Page 48 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the order of the Court or Tribunal, while exercising the powers of superintendence under Article 227 of the Constitution of India. Hence, let us examine whether the Tribunal has properly exercised its powers within its bounds or has recorded the findings which are contrary to the record and the settled legal principles amounting to perverse findings, as sought to be submitted by the learned Sr. Advocate Mr.Mihir Joshi for the petitioner. However, before dealing with the issues on merits, let us first deal with the preliminary objections like locus standi of the petitioner and the maintainability of the petition raised by the learned Advocates for the respondents.

I) LOCUS STANDI OF THE PETITIONER :

11. While challenging the very locus standi of the petitioner Municipality to file the petitioner, the learned Advocates appearing for the concerned respondents had submitted that when the State Government has chosen not to challenge the impugned order passed by the Tribunal, the Municipality, which was admittedly not the owner Page 49 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT of the subject land could not have challenged the said order. According to them, the State Government had restricted the powers of the Municipality granted pursuant to the Hajoori Resolution No.37 only to those areas which were covered within the Municipality as on 19.1.1948, whereas the subject land was added to Gamtal only as per the order dated 21.4.1948. The said submission of the learned Advocates for the respondents deserves consideration only for rejection. It may be noted that the Tribunal vide the impugned order dated 16.6.2011 has set aside the order dated 6.5.2006 passed by the Collector, Bhavnagar, which was in favour of the petitioner Municipality. The Collector vide the said order dated 6.5.2006 had rejected the appeals preferred by the Maharaja and directed the City Survey Superintendent to record the name of the Bhavnagar Municipality in the City Survey Record as the occupier of the land in question bearing Survey No.234. Even in the appeals preferred by the concerned respondents, i.e. the heirs and legal representatives of the deceased Maharaja, the petitioner Municipality Page 50 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT was made the party - respondent No.2 before the Tribunal. The petitioner Municipality was also a party to the Hak Chokshi proceedings all throughout initiated since 1980-81. Hence, it does not lie in the mouth of the respondents to say that the petitioner Municipality had no locus standi to challenge the order passed by the Tribunal by filing the present petition.

12. Even otherwise, right from the time, the subject land was acquired for the purpose of Town Development and thereafter by virtue of the Hajoor Hukum No.37 dated 19.1.1948, the Bhavnagar Municipality was entitled to deal with and to execute the sale deeds and other covenants on behalf of the State falling within the limits of Municipality. As transpiring from the record, the subject land bearing Survey No.234 was deleted from the Simtal and included in the Gamtal i.e. Municipal area as per the correction order passed by the authority on 21.4.1948 and the Schedule annexed thereto (Annexure-F). It appears that though the said authorization to execute the sale deeds in Page 51 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT respect of Government lands situated within the limits of the Municipalities granted vide Hajoor Hukam No.37 dated 19.1.1948, was sought to be cancelled by the Government of Gujarat vide order dated 26.3.1963, the same was reconsidered and the said authorization continued subject to the conditions mentioned therein vide order dated 10.8.1965. The Supreme Court in the judgement in case of Bhavnagar Municipality Vs. Union of India & Anr., reported in AIR 1990 SC 717, while dealing with the issue whether the Bhavnagar Municipality had title over the land which was the subject matter in the said case, had narrated the history of the Saurashtra State in paragraphs 11 and 12 as under:-

"11. We have already noticed that the Saurashtra State was formed by consolidation of several small States. The scheme referred to in the first paragraph was the scheme of consolidation of the States into United States of Saurashtra. The 14 proposals in that letter were the arrangements that were required to be made in order to give effect to the scheme. There should have been number of Municipalities in the States which had merged into a union under the covenant. The land within the limits of Municipalities referred to in the orders extracted above were the lands of the Government of the States concerned because obviously the covenants of accession and integration under Page 52 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the scheme of forming Union of States could not deal with the private properties of the rulers. The right to sell such lands of the State Government were with the Government concerned. It is that right in our view, that was given to the Municipalities after the formation of the Union of the United States of Saurashtra. It cannot be treated, therefore, as a transfer of title in respect of those lands to the municipality but the right to execute the sale deed in respect of those lands of the Government was transferred or vested in the Municipalities concerned. It amounts conferring an authority or authorising the Municipalities to execute the sale deeds in respect of Government lands situate within the Municipality, which should normally have been done by the State Government. The subsequent correspondence and orders of the Government also show that the Government of India understood and treated these orders only as authorisation or transferring of power to execute sale deeds and collect rent in respect of Government lands situated within the Municipality. The Government had treated those orders as liable for cancellation or modification. If the effect of those orders were transfer and vesting of title in the Municipalities, no question divesting of title would or could arise. Resolution 77 itself was subsequent to Resolution 37 but excluded certain lands from the scope of Resolution 37. This could only be on the basis that the title had not vested in the Municipalities under Resolution 37.

12. Again this authorisation itself was cancelled by the Government of Gujarat under Order No. LMN 54614576A.G. dated 26.3.63. But since a number of Municipalities made representation to the Government to reconsider the same, the Government reconsider the entire case and decided that the right to sell plots of land given under Page 53 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Resolution No. 37 dated 19th January, 1948 by the State of Bhavnagar to all 230 the Municipalities of Old Bhavnagar States, and the right to give the same on rentlease and to take the income therefrom shall be enjoyed by the Municipalities subject to the conditions mentioned in the letter of the Government dated 10th August, 1965."

13. In view of the above, the subject land having been included within the Gamtal i.e. Municipal limits as per the order dated 21.4.1948, the petitioner Municipality was the party interested in respect of the said land since then. The petitioner Municipality had also filed number of proceedings including the Appeals against the Hak Chokshi proceedings, and therefore, was entitled to challenge the impugned order of GRT by way of the present petition.

(II) Maintainability of the petition :

14. In their another limb of submissions, the learned Advocates for the respondents had sought to challenge the maintainability of the petition by submitting that the issues involved in the inquiry under Section 37(2) of the Land Revenue Code are of civil nature, and after exhausting Page 54 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the provisions of appeals, the party is required to file a Civil Suit under Section 37(3) of the Code. In the instant case, the Hak Chokshi proceedings were required to be treated as the proceedings under Section 37(2) of the Code, and therefore, after the order of the Tribunal, the petitioner had to file a suit, and the present petition was not maintainable. According to them, even the suit would not be maintainable if filed after one year from the date of the order passed by the final Appellate Authority. The learned Advocate Mr.Deven Parikh had also placed heavy reliance on the provisions contained in the Code and on the Guidelines contained in the Collector's Manual to submit that the order dated 31.3.1971 passed by the Inquiry Officer (Annexure R.9 Colly) in the Hak Chokshi Proceedings, directing to enter the name of the then Maharaja in respect of the Survey No.234, was the order required to be construed as the order passed in the proceedings under Section 37(2) of the Code only. Even otherwise, according to Mr.Parikh, the ALC authorities having believed the possession of the then Page 55 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Maharaja, such issues of possession could not be reopened in any subsequent proceedings, including under Section 37 of the Code, and such issues would be barred by the principles of constructive res judicata.

15. Since much reliance has been placed by the learned Advocates for the respondents on the provisions contained in Land Revenue Code, more particularly Section 37 thereof, the same is reproduced as under:-

"37. All public roads, etc., and all lands which are not the property of others, belong to the Government. (1) All public roads, lanes and paths, the bridges, ditches, dikes, and fences, on or beside, the same, the bed of the sea and of harbours and creeks below high watermark, and of rivers, streams, nallas, lakes, and tanks, and all canals, and watercourses, and all standing and flowing water and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same, or appertaining thereto, the property of the Government, and it shall be lawful for the Collector subject to the orders of the State Government, to dispose of them in such Page 56 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT manner as he may deem fit, or as may be authorized by general rules sanctioned by the Government concerned, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.

Explanation. In this section "highwater mark" means the highest point reached by ordinary springtides at any seasons of the year.

(2) Where any property or any right in or over any properties is claimed by or on behalf of the Government or by any person as against the Government, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. (3) Any suit instituted in any Civil Court after the expiration of one year from the date of any order passed [****] under sub section (1) or subsection (2), or, if one or more appeals have been made against such order within the period of limitation, then from the date of any order passed by the final appellate authority, as determined according to section 204, shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order, provided that in the case of an order under subsection (2) the plaintiff has had due notice of such order.

(4) Any person shall be deemed to have had due notice of an inquiry or order under this section if notice thereof has been given in accordance with rules made in this behalf by the State Government."

16. It may be noted that Chapter 18 of the Collector Manual relied upon by the learned Advocates for Page 57 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the respondents deals with the inquiry to be conducted by the Collector under Section 37(2) of the Bombay Land Revenue Code, in which a detailed procedure with regard to the service of notice to the concerned parties and about the evidences and the process of taking decision in the proceedings under Section 37(2) has been prescribed. Now, Chapter 30 of the said Collector Manual deals with the "City Survey". As stated therein, the survey of city is associated with the administration of the Nagarpalika, and is carried out with three major objectives, namely to provide maps having particular details of houses, roads, open space etc., to supervise revenue related situation in order to present encroachment of land and its proper usage; and t finalize the legal rights and borders of the lands to prevent litigations between the land holders. The provisions of the city survey of city are applicable to the lands other than the agricultural lands. Paragraph 4 of the said Chapter 30 states about the phase- wise work of city survey as to how the primary record of boundaries of construction, roads Page 58 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT etc., is carried out and how the maps of detailed survey are prepared. It also states as to how the 'Hak Chokshi' proceedings are carried out by the Hak Chokshi officer, as and when the survey sheets are finalized or completed. Thus, having regard to the provisions contained in Chapter-18 and Chapter-30 of the Collector Manual and to Section 37 of the Gujarat Land Revenue Code, it is very discernible that the proceedings of Hak Chokshi to be conducted for the purpose of city survey and the proceedings under Section 37(2) of the Code are absolutely different proceedings.

17. In the light of the afore-stated legal position, if the chequered history of the land in question is recapitulated, it appears that there were mainly two types of proceedings, which were initiated, namely the proceedings under the Agricultural Lands Ceiling Act and the proceedings of the Hak Chokshi. There were other proceedings initiated under the ULC Act in respect of the lands of the then Maharaja, however, the Court is not much concerned with Page 59 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the said proceedings, and therefore, the same need not be dealt with in these proceedings. So far as the Agricultural Lands Ceiling proceedings were concerned, as stated earlier, the then Maharaja Krishnakumar Sinhji had submitted the statement showing his holdings of agricultural lands, including Survey No.234 in the year 1964. The Mamlatdar and Agricultural Tribunal vide the order dated 22.4.1969 had held inter alia that the Survey No.233, 234 and 472 could not be included in the holdings of the then Maharaja, as they were not standing in the name of Maharaja in the Government record, and an inquiry under Section 37(2) of the Code was required to be held. He further held that a supplementary order would be passed in respect of these lands if they were held to be the lands owned by the Maharaja. In the said proceedings, the matter travelled back and forth right from the Mamlatdar and ALT to the GRT, till the GRT passed an order on 3.1.1974 in the revision application filed by the then Maharaja, under Section 38 of the Agricultural Lands Ceiling Act, holding inter alia that the Mamlatdar and Page 60 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT ALT was right in not taking into account the lands bearing Survey No.233 and 234 for the purpose of Section 6 of the Agricultural Land Ceiling Act, as the holdings of the Maharaja (Annexure-AE/7). The said order dated 3.1.1974 of GRT excluding the Survey No.234 from the holdings of the then Maharaja for the purpose of the said proceedings appears to have remained unchallenged, as there is nothing on record to show that the said order of GRT was challenged. On the contrary, it appears that thereafter the matter was sent back to the Malatdar and ALT for proceeding further pursuant to the said order.

18. So far as the Hak Chokshi proceedings are concerned, they appear to have been initiated by the City Survey Officer in the year 1971. The Inquiry Officer in the said proceedings vide the order dated 31.3.1971, believing the possession of the then Maharaja in respect of the said Survey No.234, had directed to enter the name of the Maharaja in the City Survey Record, however, in the Appeal preferred against the said order of the Inquiry Officer, the Deputy Collector, Page 61 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Bhavnagar set aside the said order and remanded the matter to the City Survey Superintendent for fresh decision. The City Survey Superintendent again directed to enter the name of the then Maharaja in the City Survey Record vide the order dated 20.4.1981. In the appeal preferred by the Chief Officer, Nagarpalika, Bhavnagar, the Deputy Collector vide the order dated 25.5.1982 set aside the said order of the City Survey Superintendent and held that the then Maharaja had failed to produce any documentary evidence to show his ownership in respect of the Survey No.234, nor had produced any evidence to show that the Survey No.234 was amalgamated with Survey No.470, and therefore, it was required to be held that the said Survey No.234 was of the ownership of the Government. It was further observed that if there was any dispute between the Bhavnagar Municipal Corporation and the then Maharaja in respect of the said Survey No.234, the proceedings under Section 37(2) of the Code could be initiated by either of them before the competent authority. The said order dated 25.5.1982 is produced on record at Annexure-L to Page 62 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the petition.

19. Being aggrieved by the said order dated 25.5.1982 passed by the Deputy Collector, two appeals were preferred, one by the then Maharaja Virbhadrasinhji and the other by the petitioner Municipality before the Collector. The Collector vide the order dated 11.3.1983 set aside the order of the Deputy Collector and remanded the matter to him for taking a fresh decision after giving an opportunity of hearing to all the concerned parties. The Deputy Collector, after the remand of the matter reconsidered the same, and vide order dated 8.8.1983, further remanded the matter to the City Survey Superintendent on the ground that it required evidence to be laid. The City Survey Superintendent vide the order dated 18.8.1984 (Annexure-P) held that both the parties i.e. the then Maharaja and the petitioner Municipality had failed to adduce any additional evidence, and therefore, the land was required to be treated as "Padtar" (waste) land of the Government, and he directed that the name of the Government be entered in the City Survey Page 63 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Record. Now, in the said the proceedings, the legal representatives of the original owner Bhura Ranchhod having filed an intervening application for joining them as the party to the proceedings, the matter again went back and forth up to the GRT as stated in the tabular chart herein above. Ultimately the Collector, Bhavnagar passed the detailed order on 6.5.2006, after recording all the earlier proceedings, and directed the City Survey Superintendent to record the name of petitioner Municipality in the City Survey record as the occupier in respect of the land bearing Survey No.234 (Annexure-B). The said order of the Collector has been set aside by the Tribunal vide the impugned order dated 16.6.2011 (Annexure-A).

20. Thus, from the entire series of proceedings initiated under the Agricultural Land Ceiling Act as well as under the Hak Chokshi/City Survey Proceedings, it clearly transpires that none of the parties had ever approached the competent authority under Section 37(2) of the Code, though at one point of time in the Hak Chokshi Page 64 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT proceedings, the Deputy Collector in the order dated 25.5.1982 passed in the City Survey Appeal No.5/80/81 (Annexure-L) had directed the parties to approach the competent authority under Section 37(2) of the Code to resolve their disputes in respect of the said land. It may be noted that if the proceedings in which the Inquiry officer had passed the order dated 31.3.1971 were the proceedings under Section 37(2) of the Code, as sought to be submitted by the learned Sr. Advocate Mr.Deven Parikh, the Deputy Collector in the appeal arising out of the said proceedings of City Survey, would not have directed the parties to file proceedings under Section 37(2) of the Code. As per the Collector Manual relied upon by Mr.Parikh also, the provisions with regard to the inquiries to be made in both the proceedings i.e. the proceedings of City Survey/Hak Chokshi and the proceedings under Section 37(2) of the Code, are separate. The authorities before whom such proceedings could be initiated, their powers, and the provisions for appeals are also separate and independent of each other under the Revenue Page 65 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Code and under the Collector Manual. Pertinently, there was not a whisper in the order dated 31.3.1971 passed by the Inquiry Officer that the said order was passed in the proceedings under Section 37(2) of the Code. Mr.Parikh, therefore, has failed to substantiate his submission to treat the said proceedings of Hak Chokshi/City Survey as the proceedings under Section 37(2) of the Code for holding the petition non-maintainable in the eye of law. The said submission, not supported by any factual position or by legal provision can not be accepted. In absence of any other document on record to show that the proceedings under Section 37 were initiated by any of the parties, the other submissions of Mr.Parikh with regard to the provisions contained in Section 37(3) of the Code do not deserve any further consideration. If no such proceedings as contemplated under Section 37 were ever initiated by any of the parties, the submission of Mr.Parikh with regard to the bar contained in Sub-section (3) of Section 37 of the Code also has no legs to stand.

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21. There could not be any disagreement to the proposition of law laid down in case of Hope Plantations Limited Vs. Archna Kumar (supra), and in case of Satyendra Kumar Vs. Rajnath Dubey (supra), relied upon by the learned Advocate Mr.Parikh and other Advocates for the private respondents to the effect that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated, and that the matter in issue, if it is purely of fact, decided in the earlier proceedings by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and can not be reopened. However, none of these decisions are helpful to the private respondents herein. Apart from the fact that except the heirs and legal representatives of the Maharaja, none of the private respondents was a party to any of the series of ligations narrated above, and therefore, it could not be said that any issue was finally decided in any of the proceedings between the parties. Mr.N. K. Majmudar, learned Page 67 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Advocate appearing for the heirs and legal representatives of Maharaja has also failed to show as to when and how the proceedings under Section 37 of the Code were initiated and which authority competent to decide had decided the said proceedings, so as to attract the principles of res judicata or even constructive res judicata. Even the ALC proceedings initiated under the Agricultural Land Ceiling Act, in respect of the holdings of the then Maharaja, had culminated in the order dated 3.1.1974 passed by the Government Resolution Tribunal in the Revision Application No.TENBR No.30/1973 preferred by the then Maharaja, in which it was specifically held the subject land was included in the village site (Gamtal) and could not be included in the holdings of the Maharaja for the purpose of the said Act. As stated earlier, the said order of GRT had remained unchallenged, and therefore, had become final. As such, the GRT in the said order arising out of the ALC proceedings, and the Collector in the order dated 6.5.2006 arising out of Hak Chokshi/City Survey proceedings have recorded the findings Page 68 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT against the then Maharaja, as regards the possession of the subject land. The Tribunal in the impugned order, however, has set aside the said order dated 6.5.2006 of the Collector, by raising absolutely unwarranted assumptions, ignoring the orders passed by various authorities, and in flagrant disregard of the fundamental principles of law and justice, which shall be demonstrated hereinafter. Suffice is to say that the present petition challenging the said impugned order passed by the Tribunal, arising out of the Hak Chokshi/City Survey proceedings is maintainable and amenable to the jurisdiction of the High Court under Article 227 of the Constitution of India.

(III) WHETHER THE SUBJECT LAND WAS THE PRIVATE PROPERTY OF THE THEN MAHARAJA :

22. This takes the Court to the core issue involved in the petition as to whether the subject land was the private property of the then Maharaja Krishnasinhji. The learned Sr. Advocate Mihir Joshi for the petitioner Municipality vehemently submitted that the Tribunal had recorded Page 69 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT perverse findings that the then Maharaja was in possession of the subject land since 1937 and that by mistake the said land was not included in the inventory list of his private properties, completely overlooking the contemporaneous record which established that the Maharaja had accepted that the subject land was not his private property. According to Mr.Joshi, the Tribunal had also committed an error in drawing an inference of prima facie title based on possession ignoring the findings recorded by the Agricultural Land Tribunal as also by the other authorities holding that the possession even if believed to be of Maharaja, was unauthorized. The said finding was also confirmed by GRT in the order dated 3.1.1974, which had remained unchallenged. The contention of the respondents that the land bearing Survey No.234 was merged with Survey No.470/1 also had no foundation according to Mr.Joshi. Taking the Court to all the proceedings, he submitted that there was no order passed by any authority amalgamating the two Survey Numbers, as specifically observed by the Collector in his order impugned before the Page 70 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Tribunal. He also relied upon the sale deed executed by the then Maharaja on 31.3.1971 in favour of the respondent Palitana Sugar Mill in which both the Survey Numbers were distinctly mentioned inasmuch as by the said sale deed, Survey No.470/1 was sold and in the description of the property sold, the Survey No.234 was mentioned as situated to the Western side of the said sold Survey No.470/1. He also submitted that the sale deed executed by the legal heirs of the Maharaja in favour of M/s.Kasturi Constructions in respect of Survey No.234 on 18.6.2011 also clearly established that Survey No.470/1 was separate from Survey No.234.

23. Repelling the said submissions of Mr.Joshi, the learned Sr. Advocate Mr.Deven Parikh submitted that there were innumerable documents on record to show that the Maharaja was in possession of the subject land right from the beginning, and therefore, the Tribunal had rightly raised the presumption of title in his favour. According to Mr.Parikh, the White Paper indicating the settlement between the then Maharaja and the Page 71 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Government was prepared on the basis of give and take, and there were no strict rules of title which were being followed, and therefore, the argument that in 1937 the subject land was acquired for Town Improvement, and therefore, could not be treated as the personal property of Maharaja had no substance. He further submitted that the Maharaja had claimed the subject land as the land given to him as his personal property at the time of executing the covenant, and it was by mistake while preparing the inventory, the said subject land had remained to be included, otherwise as considered by the Inquiry Officer, the Survey No.233 and No.234 were required to be added to the Survey No.470/1 so that the area of 58 acres as shown against the Survey No.470/1 could be achieved. As regards the description of the land mentioned in the sale deed of 1971, he submitted that there also by mistake the word "paiki" had remained to be mentioned against the Survey No.234, otherwise the Survey No.234 was also included in the sold out land bearing Survey No.470/1. Page 72 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT

24. Learned Advocate Mr.N.K. Majmudar appearing for the legal heirs of the then Maharaja and the learned Sr. Advocate Mr.Mihir Thakor appearing for the respondent No.8 M/s.Kasturi Constructions while adopting the submissions made by Mr.Deven Parikh, had further submitted that the petitioner Municipality had miserably failed to establish that in the year 1937 or thereafter the Municipality was ever in lawful possession of the subject land. According to them, the amount of compensation was paid by the State at the time of acquisition of the said land in the year 1937-38, and therefore, the then Maharaja had become the lawful owner and occupier of the said land, however, on the merger of Bhavnagar into Union Territory of India in the year 1948 a mistake had occurred while preparing the inventory and though the Maharaja was in actual possession of the said land, it was not included in the said inventory. They also submitted that the petitioner Municipality could not have made claim over the subject land as the subject land was added to Gamtal vide order dated 21.4.1948, and even the Page 73 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Resolution dated 10.8.1965 of Government of Gujarat did not confer any right on the Municipality in respect of the land which came to be included within its limits after 19.1.1948.

25. In order to appreciate the rival contentions raised by the learned Advocates of the parties, it would be very relevant to reproduce the constitutional history of accession and integration of the Indian States with the Union of India, as narrated by the Supreme Court in one of the judgements relied upon by the learned Advocates for the parties. In case of Bhavnagar Municipality Vs. Union of India, reported in AIR 1990 SC 717, the Supreme Court has succinctly dealt with this issue. The relevant paragraphs 7, 8, and 9 of the said judgement read as under:-

"7. In order to understand the nature and implication of the Resolution No. 37 and the other documents relied on by the learned counsel for the appellants in support of the claim of title of the Municipality for the Parade Ground and the land in Rasala Lines or Lancer quarters it is necessary to trace briefly the constitutional history of accession and 225 integration of the Indian Page 74 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT States with the Union of India. The federal scheme embodied in the Government of India Act, 1935, was the first effort to provide for a constitutional relationship between the Indian States and the Government of India on a federal basis. Section 311 of the Government of India Act, 1935 defined as 'Indian State' as meaning any territory not being part of 'British India'. whether described as a State, an Estate, a Jagir or otherwise. Part II of the Government of India Act, 1935 provided for the establishment of a Federation of India by accession of Indian States. In spite of the protracted negotiations that followed the enactment of Government of India Act the Federation envisaged under the Act could not come into existence in view of the States not opting for accession. But by the setting up of the new dominions under the Indian Independence Act, 1947 the suzerainty of the British Crown over Indian States lapsed along with it all functions, obligations, powers, rights, authority or jurisdiction exercisable by the Crown. However, the proviso to section 7 provided that effect shall, as nearly as may be continued to be given by the Dominion Government, to the provisions of any agreement between the Indian State and the Crown in regard to matters specified therein until the same are denounced by either of the parties. It was in this background the Dominion Government of India created a new department called the State Department on the 5th July, 1947 to deal with matters arising between the Central Government and the Indian States. This department was in charge of Sardar Patel. After persistent negotiations and persuasion, barring three States, all the Indian States in the geographical limits of India had acceded to the Indian Dominion by 15th August, 1947. The integration of States however did not follow uniform pattern in all cases. Merger of States in the provinces geographically contiguous to them was one Page 75 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT form of integration; the second was the conversion of States into Central administered areas. The third category are those cases where several small groups of States which could be consolidated into sizeable units by uniting them to form unions of States on the basis of full transfer of power from the rulers to the people. This form of consolidation of States was adopted in Kathiawar covering 222 States and Estates with varying territories and jurisdiction. The scheme for the constitution of the United State of Kathiawar, later known as Saurashtra was finalised and the covenant was signed on 23rd January, 1948 and the new State of Saurashtra inaugurated on the 15th February, 1948, vide Government of India, Ministry of States, "White Paper on Indian States".

8. The financial integration was simultaneously taken up with accession and territorial integration. The Indian States Finances 226 Enquiry Committee headed by Shri V.T. Krishnamachari was constituted by Resolution dated 27th October, 1948 of the Government of India and the recommendations were incorporated in the Constitution. On the adoption of the new Constitution of India the process of territorial integration of States thus became complete. Under the new Constitution all the constituent units both Provinces and States were classified into three classes. namely, Part 'A' States which correspond to the former Governor's Provinces; Part 'B' States which comprised the Union of States and the States of Hyderabad, Mysore and Jammu and Kashmir; and Part 'C' States which correspond to the former Chief Commissioners' Provinces. This territorial integration of States is effected by defining in Article 1 of the Constitution that the territories of India include the territories of all the States specified in Parts A, B and C of the First Schedule. Thus with the inauguration of the Page 76 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT new Constitution on the 26th November, 1949 the merged States have lost a11 vestiges of existence as separate entitles.

9. With the accession and completion of territorial and financial integration and the Part 'B' States forming part of Indian Union, the lands and buildings in the use or occupation of the former Indian State Governments, have distinguished from the private properties of the rulers, were transferred and vested in the Government of India and became its property."

26. As stated earlier, the scheme for constitution of the United States of Kathiawad later known as Saurashtra, having been finalized, the covenant was signed on 23.1.1948. The new State of Saurashtra was inaugurated on 15.1.1948 vide Government of India, Ministry of States, "White Paper on Indian States". The learned Sr. Advocate Mr.Deven Parikh has placed on record the relevant part of the said White Paper on Indian States. Part VII thereof which pertained to the settlement of Rulers' private properties and paragraph 156 thereof stated inter alia that so far as their private properties were concerned, the Rulers were required to furnish by specified date an inventory of immovable properties, securities and cash balances claimed by them as their private properties. It was Page 77 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT further provided that the settlement of any dispute arising in respect of the properties claimed by the Ruler was to be done by reference to an Arbitrator appointed by the Government of India. The paragraph 157 of the said White Paper, provided as under:-

"157. In the past the Rulers made no distinction between private and State property; they could freely use for personal purposes any property owned by their respective States. With the integration of States it became necessary to define and demarcate clearly the private property of the Ruler. The settlement was a difficult and delicate task calling for detailed and patient examination of each case. As conditions and customs differed from State to State, there were no precedents to guide and no clear principles to follow. Each case, therefore, had to be decided on its merits. The Government of India were anxious that the new order in States should be ushered in an atmosphere free from any controversies or bitterness arising from any unhappy legacy of the past. A rigid and legalistic approach would have detracted from the spirit of goodwill and accommodation in which the political complexion of the States had been so radically altered. By and large the inventories were settled by discussion between the representatives of the Ministry of States, the Rulers concerned and the representatives of the Governments of the Province or the Union as the case may be. The procedure generally adopted was that after the inventories had been received and scrutinised by the Provincial or the Union Government concerned and after the accounts Page 78 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT of the States taken over had been examined, the inventories were discussed across the table and settled in a spirit of give and take. In all discussions with the Rulers of the States forming Unions, the Rajpramukhs were associated; the private properties of Rajpramukhs were settled by the government of India in informal consultation with the Premiers of the Unions. This method made it possible to settle these properties on an equitable basis within a remarkably short period and without recourse even in a single case to arbitration. The settlements thus made are final as between the States and the Rulers concerned."

27. It appears that pursuant to the said settlements entered into with the Rulers of Kathiawad States, an Ordinance on "The Covenanting States Administration Ordinance 1948" was issued, which was first published in the gazette on 8.3.1948 (Annexure-G to the petition). Appendix XXXIV thereto pertained to the various provisions contained in the said covenant. Article XI of the said Appendix being relevant is reproduced as under:-

"Article - XI (1) The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh.

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(2) He shall furnish to the Raj Pramukh within one month of the said date an inventory of all the immovable properties, securities and cash balances held by him as such private property.

(3) If any dispute arises as to whether any item of property is the private property of the Ruler of State property, it shall be referred to such person as the Government of India may nominate, and the decision of that person shall be final and binding on all parties concerned."

28. On the close reading of the said Article-XI, it transpires that a clear distinction was made between the private properties of the Rulers and the State properties, and that in case of any dispute as to whether any property was the private property of the Ruler or not, the same was to be referred to such person as the Government of India may nominate and the decision of that person was to be final and binding on all the parties concerned. It is very pertinent to note that pursuant to the said covenant, the then Maharaja Krishnasinhji had submitted his Inventory of the immovable properties, securities and cash balances as required under Article XI of the Appendix-XXXIV to the said covenant, and sent to the Raj Page 80 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Pramukh, Saurashtra. In response thereto, the Raj Pramukh, Saurashtra had replied to the then Maharaja vide the letter dated 5.11.1951 (Annexure-H) stating inter alia that the Inventory of the immovable properties, securities and cash balances sent by the Maharaja vide the letter dated 17.5.1948 was considered and the decision with regard to the final Inventory was enclosed. It was also stated inter alia that the settlement of the Inventory was an integral part of an overall agreement in respect of all outstanding matters of dispute and did not stand by itself. Along with the said letter, the Inventory of immovable properties of the then Maharaja of Bhavnagar was annexed, however, the said inventory did not include the subject land i.e. Survey No.234. The contention raised by the learned Advocates for the respondents is that by mistake, the said Survey No.234 had remained to be included in the inventory. The said contention being misconceived and fallacious for the reasons discussed hereunder, cannot be accepted. Page 81 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT

29. It is significant to note that there was no dispute raised by the then Highness Maharaja Krushnakumar Sinhji against the said Inventory, more particularly with regard to non-inclusion of Survey No.234 in the Inventory , during his life time. On the basis of the said Inventory, the entries were also certified in the revenue record i.e. Village Form VI on 10.11.1955, after making necessary inquiries from the concerned agriculturists/farmers, in which the other lands mentioned in the Inventory were shown as held by the then Maharaja Krushnakumar Sinhji, however, in the said revenue record also the Survey No.234 did not figure as the land occupied or retained by the then Maharaja as his private property. The copies of the said entries made in Village Form VI are collectively on record at Annexure-I. It is further significant to note that on the death of the said the then Maharaja Krushnakumar Sinhji on 2.4.1965, the name of his legal heir Virbhadrasinh Krushnakumar Sinhji was entered in the revenue record i.e. Village Form VI on 29.9.1965, however, the said entry also did not reflect the Survey No.234. The said Page 82 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT copies of the Village Form VI are on record as Annexure-J. Hence, from the said documents i.e. the Inventory and the revenue records, it clearly transpires that Survey No.234 was not treated as the private property of the then Maharaja Krushnakumar Sinhji and he himself also never raised any objection before any authority against non-inclusion of Survey No.234 in the Inventory as his private property during his life time. The said Inventory was prepared as back as in the month of November 1951, and till he died in the year 1965, no such dispute was raised by him that there was a mistake in preparing the Inventory as the subject land Survey No.234 was not included in the same. The Court, therefore, does not find any substance in the submission of the learned Advocates for the respondents that there was a mistake occurred in preparing the inventory in the year 1951 by not including the Survey No.234 as the private property of the then Maharaja.

30. The Court also does not find any force in the submission of the learned Advocates for the Page 83 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT respondents that the area of said Survey No.234 was amalgamated in the Survey No.470/1 as held by the Inquiry Officer vide the order dated 31.3.1971 in the Hak Chokshi proceedings. The Inquiry Officer had grossly erred in placing reliance on the Rojkam/Panchnama drawn on 3.1.1965 in the Ceiling Case No.2/64-65 showing the Survey No.234 as amalgamated with Survey No.470/1. As a matter of fact the Mamlatdar and ALT in the said proceedings had not believed the claim of the Maharaja that the Survey No.234 was liable to be included in his holdings. The said order of Mamlatdar and ALT was ultimately confirmed by the GRT in the Revision Application No.30/1973 vide order dated 18.6.1993. Similarly, the order dated 31.3.1971 passed by the Inquiry Officer in Hak Chokshi proceedings, holding that the Survey No.234 was amalgamated with Survey No.470/1, was also set aside by the Deputy Collector vide order dated 20.4.1981. Thereafter the matter travelled back and forth before the various authorities of City Survey, however, none of the authorities had concluded that the Survey No.234 was amalgamated with Page 84 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Survey No.470/1. Mr.N. K. Majmudar appearing for the legal representatives of the then Maharaja has also failed to show any order passed by the competent authority amalgamating the Survey No.234 into Survey No.470/1.

31. On the contrary the documents executed by the then Maharaja, namely the sale deed by which the Survey No.470/1 was sold out to the respondent No.5 Palitana Sugar Mills on 31.3.1971 mentioned the description and boundaries of the land sold, and in the said description the Survey No.234 was stated to be situated on the Western side of the sold out Survey No.470/1. If there was an amalgamation of those two survey numbers as sought to be contended by the learned Advocates for the respondents, the Survey No.234 would have lost its identity at the relevant point of time, and it would not have been shown as situated on the Western side of the Survey No.470/1. The reliance placed by the learned Sr. Advocate Mr.Parikh for the respondent No.5 on the observations made by the Supreme Court in case of Palitana Sugar Mills Vs. State of Page 85 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Gujarat, reported in (2004) 12 SCC 645, in respect of Survey No.470/1 and other lands is also thoroughly misplaced. Though there is a reference of the said sale deed dated 31.3.1971 executed in favour of the respondent No.5 by the then Maharaja in respect of the lands mentioned therein, there is not a whisper in the said judgement with regard to Survey No.234. No such contention was ever raised by the respondent No.5 before any authority much less before the Supreme Court that Survey No.234 was amalgamated with Survey No.470/1, or that a mistake had occurred in mentioning the boundaries and description of the lands sold, by showing that Survey No.234 was situated on the western side of the Survey No.470/1 in the said sale deed. There was no such contention raised that a mistake had occurred while preparing the inventory of the then Maharaja by not including Survey No.234 with Survey No.470/1 as the private property of Maharaja, or that there was an amalgamation of Survey No.234 with Survey No.470/1. Interestingly, the Supreme Court in the said judgement has referred the order of GRT Page 86 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT passed on 3.1.1974 arising out of ALT proceedings, in which while considering the holdings of the then Maharaja for the purpose of Agricultural Land Ceiling Act, both the Survey Nos.470/1 and 234 have been separately dealt with, and have been held to be not liable to be taken into account for the purpose of Section 6(1) of the ALC Act. The said order of GRT having become final and having been implemented after the remand, as noted by the Supreme Court in the said judgement, the contention of Mr.Parikh that Survey No.234 was part of Survey No.470/1 stands defeated.

32. It may be further noted that the legal representatives of the then Maharaja also executed a sale deed in favour of the respondent M/s.Kasturi Constructions in respect of the Survey No.234 on 18.6.2011, i.e. on the very next day of the passing of the impugned order by the Tribunal. The said sale deed also clearly established that the Survey No.234 was a separately identifiable parcel of land, and that was not part of Survey No.470/1 till the Page 87 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT impugned order was passed by the Tribunal. In the present proceedings, the Court is not required to decide about the legality of the said sale deed executed in favour of M/s.Kasturi Constructions in respect of Survey No.234, however, suffice is to say that the claims made by the private respondents who have been subsequently added in the present petition, are very much conflicting against each other. Their self contradictory contentions and documents themselves falsify their claim that the Survey No.234 was amalgamated with Survey No.470/1.

33. At this juncture, it would be beneficial to regurgitate the well known maxims - "Nemo dat quod non habet" - No one gives what he has not got; and "Nemo plus juris tribuit quam ipse habet" - No one can bestow or grant a greater right or better title than he has himself. When the then Maharaja or his heirs and legal representatives had no title over the subject land bearing Survey No.234 at any point of time, any document or sale deed executed by them in respect of the subject land in favour of the Page 88 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT third party would be invalid and inoperative, in view of the ratio laid down by the Supreme Court in case of State of Andhra Pradesh & Ors. Vs. Star Bone Mill and Fertilizer Co. (supra). As such, the said judgement has been relied upon by the learned Sr. Advocate Mr.Parikh for the respondent No.5 to substantiate his submission that presumption of title can be raised as a result of possession, in view of Section 110 of the Evidence Act, however, in the opinion of the Court, the said judgement is more helpful to the petitioner than to the respondents. For the proper reading, it would be beneficial to reproduce the relevant paragraphs 21 to 24, which read as under:-

"21. The principle enshrined in Section 110 of the Evidence Act, is based on public policy with the object of preventing persons from committing breach of peace by taking law into their own hands, however good their title over the land in question may be. It is for this purpose, that the provisions of Section 6 of the Specific Relief Act, 1963, Section 145 of Code of Criminal Procedure, 1973, and Section 154 and 158 of Indian Penal Code, 1860, were enacted. All the afore said provisions have the same object. The said presumption is read under Section 114 of the Evidence Act, and applies only in a case where there is either no proof, or very little proof of ownership on either Page 89 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT side. The maxim "possession follows title"

is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of waste lands, or where nothing is known about possession one way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment etc. Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act.

22. The courts below have failed to appreciate that mere acceptance of municipal tax or agricultural tax by a person, cannot stop the State from challenging ownership of the land, as there may not be estoppel against the statute. Nor can such a presumption arise in case of grant of loan by a bank upon it hypothecating the property.

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23. The trial court has recorded a finding to the effect that the name of one Raja Ram was shown as Pattadar in respect of the land in dispute and the respondent/plaintiff is in possession. Therefore, the burden of proof was shifted on the government to establish that the suit land belonged to it. Learned counsel for the respondent/plaintiff could not furnish any explanation before us as to who was this Raja Ram, Pattadar and how respondent/plaintiff was concerned with it. Moreover, in absence of his impleadment by the respondent/plaintiff such a finding could not have been recorded.

24. The courts below erred in holding, that revenue records confer title, for the reason that they merely show possession of a person. The courts below further failed to appreciate that the sale deed dated 11.11.1959 was invalid and inoperative, as the documents on record established that the vendor was merely a lessee of the Government."

34. It is also held in case of Nair Service Society Limited Vs. K. C. Alexander & Co., reported in AIR 1968 SC 1165 that -

"Possession may prima facie raise a presumption of title, no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides."

35. In case of Chief Conservator of Forest, Page 91 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT Government of A. P. Vs. Collector & Ors., reported in AIR 2003 SC 1805, while dealing with the provision of Section 110 of the Evidence Act, the Supreme Court observed as under -

"18. Section 110 of the Evidence Act reads thus:

"110. Burden of proof as to ownership. When the question is whether any person is owner of anything of which he is shown to be in possession the burden of proving that he is not the owner is on the person who affirms that he is not the owner."

19. It embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title."

36. If the above-stated legal position is applied to the facts of present case, it clearly transpires from the afore-discussed documents on record including the orders passed by the various authorities in the ALT proceedings and the Hak Chokshi - City Survey proceedings that the petitioner Municipality had successfully proved that the then Maharaja or his heirs were neither in lawful possession nor had any title over the Page 92 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT subject land. There was no document worth the name including the document of Inventory or the revenue record to show that the then Maharaja was in lawful possession of the subject land and that nobody owned the subject land, so as to raise the presumption that the then Maharaja had become the owner of the subject land because of his settled legal possession. Merely because the City Survey Officer in the order dated 31.3.1971 had drawn an inference without any basis that a mistake must have occurred at the time of preparing the Inventory in 1951 by not including Survey No.234 in the private properties of the then Maharaja, it could never be held by any stretch of imagination that the Maharaja had become the owner of the said land, more particularly when the said order of City Survey Officer was set aside by the Deputy Collector, and was not confirmed by any of the higher authorities even when the matter travelled back and forth in remand proceedings up to GRT. The Court, therefore, is of the opinion that the Tribunal in its impugned order had recorded estranged and perverse findings, contrary to Page 93 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT record, and misinterpreting the orders of the authorities for the purpose of raising the presumptions that the Survey No.234 was by mistake not included in the Inventory prepared in the year 1951 as the private property of the then Maharaja, and that Survey No.234 was amalgamated in Survey No.470/1. Such findings based on surmises and conjectures dehors the record are nothing but the findings perverse in law and in facts.

37. The perversity in the finding with regard to the Maharaja having become the owner by adverse possession is also reflected when the Tribunal held in paragraph 21 of the impugned order that "Even by way of adverse possession, the appellants can be said to be in better position than the respondents." The Tribunal has failed to appreciate the basic tenet of law of adverse possession that an adverse possession is a doctrine under which a person in possession of land or property owned by someone else may claim ownership by making use of the same continuously, openly and adverse to the title of Page 94 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT the real owner for a period of more than twelve years. If according to the Tribunal, the then Maharaja was the owner of the subject land, the question of adverse possession would not arise, and if he had become the owner by adverse possession, then his plea of being the real owner gets frustrated. By recording such casual finding with regard to the adverse possession without any further discussion or without any basis, would also not help the respondents in establishing their claim of possession or ownership over the land in question.

38. The lopsided finding recorded by the Tribunal relying on the judgement of the Civil Court, Bhavnagar in Civil Suit No.781/83 filed by the legal heirs of Bhura Ranchhod (the plaintiffs) against the petitioner Municipality and the legal heirs of the then Maharaja (the defendants), is also another glaring example of the perverse finding recorded by Tribunal in favour of the respondent No.1 i.e. the legal heirs of the then Maharaja. The Tribunal in para 13 of the impugned order has observed that "it Page 95 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT has been mentioned in the judgement of the said Civil Court that respondent No.1 (i.e. the legal heirs of Bhura Ranchhod) has miserably failed to prove his ownership and possession of the suit land and decided issues Nos.5, 6, and 7 in favour of the appellant (i.e. the legal heirs of the then Maharaja) regarding possession of the land in question", while ignoring the findings on issue No.9 which was decided in favour of the petitioner Municipality with regard to the possession and ownership of the land in question. As such, the Tribunal should not have relied upon the said findings recorded in the Civil Suit, which was dismissed by the Civil Court recording the findings in favour of the defendants (i.e. the petitioner Municipality and the legal heirs of Maharaja) only because the plaintiffs in the said case i.e. the legal heirs of Bhura Ranchhod had failed to lead any oral or documentary evidence. Thus, the finding of the Tribunal with regard to the occupation and possession of the subject land in favour of the respondent No.1, relying upon the said judgement of the Civil Court, is not only thoroughly Page 96 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT misconceived and misdirected but is perverse.

39. The very execution of the sale deed in respect of the subject land, by the legal heirs of the Maharaja in favour of the respondent Nos.4, 7, & 8 on 18.6.2011 i.e. on the very next day of the impugned order dated 16.6.2011 (corrected on 17.6.2011) passed by the Tribunal, speaks volumes of the dishonest intention on their part to make an unauthorized claim over the subject land and defeat the legitimate claim of the petitioner Municipality over the said land. Such execution of document was nothing but an ill- intentioned attempt to create equity in favour of the third party and further complicate the matter. As discussed thread-bare herein above, the then Maharaja or his legal heirs could never be said to be in lawful possession or the lawful owner of the subject land, and it was the petitioner Municipality only which was the legal occupier of the said land since 1948, when it was directed to be included in the Gamtal by virtue of the Durasti Order dated 21.4.1948, and that it was the petitioner Municipality only Page 97 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT which was entitled to deal with the subject land by virtue of the Hajoori Tharav No.37 dated 19.1.1948 and subsequent resolution dated 10.8.1965 of the State Government subject to the conditions mentioned therein.

40. In the aforesaid premises, the impugned order dated 16.6.2011 passed by the Tribunal being arbitrary, illegal, contrary to the record, and perverse in facts and in law, deserves to be quashed and set aside, and is accordingly set aside, and the order dated 6.5.2006 passed by the Collector, Bhavnagar is restored. It is further directed that the name of the petitioner Municipality shall be entered in the City Survey record as the legal occupier in respect of the subject land being Survey No.234 and that the petitioner Municipality shall be entitled to deal with the subject land by virtue of the Hajoori Tharav No.37 dated 19.1.1948 and the subsequent resolution dated 10.8.1965 of the State Government subject to the conditions mentioned therein.

41. The petition stands allowed accordingly. Page 98 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020 C/SCA/8792/2011 CAV JUDGMENT

Rule is made absolute.

Sd/-

(BELA M. TRIVEDI, J) FURTHER ORDER:

The learned Advocates Mr.N. K. Majmudar for the respondent No.1.2, Mr.Rutul Desai for the respondent No.5 and Ms.Trusha Patel for the respondent No.8 have requested to stay the operation of the order to enable them to approach the higher forum. They have requested to stay the implementation of the order for three months in view of the prevailing situation of lock-down due to Covid-19 Pandemic, however, the said request is rejected in view of the detailed order passed above.

Sd/-

(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 99 of 99 Downloaded on : Thu May 07 23:10:38 IST 2020

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