STATE OF GOAversusNARAYAN V. GAONKAR & ORS.

526                      [2020]REPORTS
               SUPREME COURT    4 S.C.R. 526                [2020] 4 S.C.R.


A                               STATE OF GOA
                                        v.
                      NARAYAN V. GAONKAR & ORS.
                         (Civil Appeal No.1866 of 2020)
B                               MARCH 04, 2020
              [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
             Suit – for declaration of ownership – The plaintiffs-
      respondents filed a suit for a direction to delete the name of ‘Forest
      department’ from the survey entry No. 11/1 of a Village and to
C
      declare the plaintiffs as the exclusive owners of the said property –
      The defendants-appellant, the State, had filed a written statement-
      cum-counter claim refuting the claim of the plaintiffs and claimed
      that entire suit property was in possession and belonged to the Forest
      Department – In the counter-claim, it was pleaded that plaintiffs
D     were wrongly recorded as co-occupants – The Trial court dismissed
      the suit filed by the plaintiffs and the counter-claim filed by the
      defendants- State was also rejected – The plaintiffs having not filed
      any appeal against the rejection of the claim, the judgment of the
      Trial Court has become final, however, the defendants filed appeal
      in the High Court, which was dismissed – On appeal, held: A
E
      proceeding sheet of Court for record of rights (correction of records)
      indicated that on 20.10.1975, one of the plaintiff made a statement
      that he wished to withdraw his application dated 07.08.1975
      regarding a claim that the survey no.11/1 belonged to plaintiffs, it
      was addressed to Mamlatdar for record of rights and hence, the
F     dispute case was closed – Even after withdrawal of the claim of
      plaintiff, the names of plaintiffs were added by correcting the Form
      III in red ink as required by sub-rule (6) of Rule 6 of the Goa,
      Daman and Diu (Record of Rights and Register of cultivators) Rules,
      1969 – When there was no decision in favour of the plaintiffs,
      applicant on the objection filed by them, there was no question of
G
      adding their names in Index of Lands against survey No.11/1 – The
      recording of names of the plaintiffs in survey no. 11/1 along with
      the name of the Forest Department was illegal and not per 1969
      rules – The plaintiffs failed to justify the continuance of their names
      against survey No. 11/1 – Further, in the suit, the plaintiffs did not
H
                                       526
      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                          527


mention/disclose proceeding regarding the correction of records          A
undertaken in 1975 – From the additional evidence brought on the
record by the State, it is clear that in record published, it was only
the name of the Forest Department – Even though Gazette dated
11.01.1951 does not mention survey no. 11 but forest was declared
in the village and the survey no. 11 is forest land is proved by other
                                                                         B
evidence – Thus, the defendant-State has clearly made out the case
for allowing counter-claim – Accordingly, the name of the plaintiffs-
respondents from survey no. 11/1 directed to be struck off.
      Allowing the appeal, the Court
      HELD: 1. The record of proceeding sheet dated 20.10.1975           C
indicates that after recording the statement of one of the Plaintiff
the case was closed. The said proceedings indicate that the
objection filed by Plaintiff was withdrawn and hence there was no
decision taken in Dispute Case No.3. Even after withdrawal of
the claim by the plaintiff, the names of plaintiffs were added by
correcting the Form III in red ink as required by sub-Rule(6) of         D
Rule 6. The entry of names of the above persons along with Forest
Department was stated to be as per D.C.3 as is clear from Form
III Annexure-2 brought on record by the appellant. A coloured
print of above Annexure-2 has been placed before this Court by
ASG which is taken on record, which indicates that in Form III           E
the addition of names of three persons was by red ink. When
plaintiff had withdrawn his claim for deletion of name of Forest
Department, this Court fails to comprehend that as to how despite
that withdrawal which is duly recorded in the proceedings their
names can be added along with Forest Department against survey
No.11/1. Thus, the recording of names of the plaintiffs in survey        F
No.11/1 along with the name of the Forest Department was illegal
and not as per Rule 6 of Rules, 1969. When there was no decision
in favour of the plaintiffs, applicant on the objection dated
07.08.1975, there was no question of adding their names in Index
of Lands against survey No.11/1. The addition of the names of            G
the plaintiffs against survey No.11/1 was completely without
jurisdiction and the said entry cannot be allowed to be continued.
[Para 18][539-D-H; 540-A]
      2. That in the suit filed by the plaintiffs, there is no mention
of entire proceedings regarding correction of records undertaken         H
528            SUPREME COURT REPORTS                       [2020] 4 S.C.R.


A     in 1975. The plaintiffs in the suit did not disclose the aforesaid
      facts which were relevant for determining the issues in
      consideration in the suit. Plaintiffs thus have completely failed to
      justify the continuance of their names against survey No.11/1.
      [Para 19][540-B]
B            3. From the additional evidence brought on the record by
      the State, it is clear that in the record which was published of the
      Village Sulcarna for survey No.11, it was the name of only Forest
      Department which was mentioned on survey No.11 area 230.45.00
      hectares and the addition of the name of Plaintiff and two others
      were in pursuance of Dispute Case No.3. The Goa, Daman and
C     Diu Land Revenue Code, 1968 was enacted to consolidate and
      amend the Law relating to Land and Land Revenue in the Union
      of territory of Goa, Daman and Diu as then existed. [Para 20][540-
      C-D]
            4. The respondents themselves claim that the documents
D     which have been filed are public records and in public domain,
      only objection raised by the respondents is that it was not difficult
      for the State to have had knowledge and access to these
      documents. The veracity of the documents has not been disputed.
      [Para 22][542-D-E]
E           5. More so, the plaintiffs ought to have agitated for their
      claim with regard to survey No.11/1 and ought not to have
      withdrawn application dated 07.08.1975 before the Revenue
      Official. It is relevant to notice that in the suit which was filed by
      the plaintiffs any mention of the proceedings regarding records
F     of rights of survey No.11/1 undertaken earlier were not referred
      to and the mention of proceedings under Revenue Code, 1968
      and Rules, 1969 is conspicuously absent. The trial court having
      dismissed the suit of the plaintiffs for declaring them owner of
      survey No.11/1, this Court does not find any justification for
      continuance of the names of the plaintiffs in survey No.11/1 of
G     Village Sulcorna. [Para 25][543-B-C]
            6. The State in its written statement has claimed that
      Sulcorna has declared as forest by Gazette Notification dated
      11.01.1951 which Gazette was filed as Annexure AA-3 filed on
      the record which mentions Forests Sulcorna and the name of
H
      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                             529


Village Sulcorna, the Court below had not placed reliance on the            A
said Gazette only for the reason that the Gazette does not mention
any survey number. Survey No.11 was situate in the Forest area
is further proved by the documents brought on the record by the
appellant i.e. Mining Lease which was granted w.e.f 22.11.1987
for survey No.2 of Village Curpem and survey No.11 of Village
                                                                            B
Sulcorna. [Para 26][543-D-E]
      7. The suit filed by the plaintiffs was to delete the name of
Forest Department from survey No.11 which suit having been
dismissed the name of the Forest Department continues with
regard to survey No.11/1. Even though Gazette dated 11.01.1951
does not mention survey No.11 but Forest was declared in Village            C
Sulcorna and Survey No.11 is forest land is proved by other
evidence. This Court is satisfied that the counter-claim filed by
the State deserved to be allowed and the name of the plaintiffs-
respondents from survey No.11/1 deserved to be struck off. [Para
28][544-A-B]                                                                D
      Fabrica da Igreja de N.s. de Milagres v. Union of India
      and Others (1995) 1 Bom CR 588 – referred to.
                        Case Law Reference
(1995) 1 Bom CR 588                  referred to         Para 24            E
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1866
of 2020.
     From the Judgment and Order dated 30.06.2011 by the High Court
of Bombay at Goa in First Appeal No. 115 of 2011.
                                                                            F
      Madhavi Divan, ASG, Surjendu Sankar Das, Carlos A. Fereira,
Ms. A. Subhashini, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
      ASHOK BHUSHAN, J.
       1. This appeal has been filed by the State of Goa questioning        G
judgment of High Court of Bombay at Goa dated 30.06.2011 dismissing
the First Appeal No. 115 of 2001 filed by the appellant. The First Appeal
No.115 of 2001 was filed by State of Goa through the Secretary, Forest
Department; the Collector South Sub-Division, Margao, Goa; the Director
of Survey & Settlement Officer, Panaji, Goa and the Chief Secretary,        H
530            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


A     Panaji, Goa challenging the judgment and order of the learned Civil Judge
      dated 23.04.2001 dismissing the Civil Suit No. 64 of 1995 filed by the
      plaintiffs-respondents 1 to 9 as well as the counter claim filed by
      defendants- appellant.
             2. The brief facts of the case necessary to be noted for deciding
B     this appeal are:
            2.1 Special Civil Suit No. 64 of 1995 was filed by Shri Narayan V.
            Gaonkar, Shri Shivram V. Gaonkar and Shri Rama S.F. Dessai in
            the Court of Civil Judge, Senior Division at Quepem praying for
            following: -
C                     “In the aforesaid circumstances, it is prayed to your
               honour, to direct the survey authorities to delete the name of
               “Forest Department” from the survey entry No.11/1 of the
               village Sulcorna from “Name of the Occupant” column of
               survey Form No.I & XIV and to declare the plaintiffs as the
D              exclusive owners of the property bearing survey No.11/1 known
               as “CONDA MALL” or “BINDANGAL” or “BINDAN
               MOLL” or “CARIA MOLL” of Village Sulcorna of Taluka
               Quepem.”
            2.2 In the Suit, the Secretary, Forest Department, Government of
E           Goa; the Collector South Sub-Division, Margao, Goa; the Director
            of Survey & Settlement Officer, Survey of Land Records, Panaji,
            Goa and the Chief Secretary, Government of Goa, Panaji, Goa
            were defendant Nos. 1 to 4. A common written statement-cum-
            counter claim was filed by all the defendants refuting the claim of
            the plaintiffs. The defendants claimed that entire suit property
F           under Survey No.11/1 of village Sulcorna of Quepem Taluka,
            admeasuring an area of 23,04,500 sq. mtrs. is in possession and
            belongs to the Forest Department and as such the name of the
            Forest Department has been rightly recorded in occupant’s column
            in said Survey No.11/1 and the plaintiffs nor any person have any
G           right over the suit property.
            2.3 The plaintiffs claim that they are owners in possession of a
            landed property known as CONDA MOLL or BINDIGAL or
            BINDAN MOLL, situated at Sulcorna Village in Quepem Taluka,
            Goa was disputed. Defendant’s pleaded that entire plantation
            existing there are planted and enjoyed by the Forest Department.
H
STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                               531
           [ASHOK BHUSHAN, J.]

It was pleaded that suit property is a forest property of the Forest    A
Department vide Notification published in the Official Gazette
“Repartieao de Femente” dated 11.01.1951.
2.4 In the counter claim, it was pleaded that plaintiffs have been
wrongly recorded as co-occupants in survey No.11/1 of Village
Sulcorna, Taluka Quepem, which is owned, enjoyed and in                 B
possession of the defendant No.1 - Forest Department for the
last many years and reference to the Notification dated 11.01.1951
was made. In the counter claim, following prayers were made by
the defendants in paragraph 17:-
“17. In the circumstances, the Defendants pray:                         C
(a) That by a decree in the nature of direction, the survey authority
    be directed to delete the names of the plaintiffs from the
    occupant’s column in respect of survey No.11/1, Sulcorna
    Village of Quepem Taluka.
(b) For any other reliefs in the circumstances of the case may          D
    require.”
2.5 Written statement to the counter claim was also filed by the
plaintiffs claiming that they are in exclusive possession of Survey
No.11/1 and the name of the Forest Department has been wrongly
recorded as co-occupants.                                               E
2.6 The learned Civil Judge framed two issues to the following
effect:-
1) Whether the plaintiffs prove that they are owners in possession
   of the suit property as described in paragraph 1 of the plaint?
                                                                        F
2) Whether the defendants prove that the plaintiffs name have
   been wrongly recorded as co-occupant in the property
   surveyed under No.11/1 of Village Sulcorna and as such their
   names may be deleted from the occupant’s column of Survey
   No.11/1?
                                                                        G
2.7 While answering Issue No.1, Civil Judge held that plaintiffs
have failed to prove that they are owners of the suit property,
however, Civil Judge upheld the plaintiffs’ possession. Issue No.2
was answered against the defendant. A First Appeal was filed by
the defendants in the High Court praying that judgment of the
                                                                        H
532            SUPREME COURT REPORTS                          [2020] 4 S.C.R.


A           learned Civil Judge be quashed and set aside to the extent that
            learned Civil Judge held that respondents (plaintiffs) were in
            possession and the judgment insofar as it dismissed the counter
            claim of the appellants, it was prayed that the High Court may
            delete the name of the respondents in occupant column in Form
            Nos.I & XIV and also hold that respondents (plaintiffs) are not in
B
            possession of the suit land.
            2.8 No appeal was filed by the plaintiffs against the judgment of
            the learned Civil Judge. The High Court dismissed the appeal of
            the appellants while observing that trial court has rightly rejected
            the plaintiffs’ prayer for title and also dismissed the defendants-
C           appellants counter claim that they are owners of the property.
            The High Court, thus, affirmed the judgment of the learned Civil
            Judge. Aggrieved with the judgment of the High Court, this appeal
            has been filed by the State of Goa.
            3. This Court on 05.07.2012 passed following order:-
D
                  “Issue notice on the application for condonation of delay as
            well as on the special leave petition.
                  However, the petitioner is directed to produce the relevant
            records to show that the property in question is a forest land.”
E            4. In pursuance of the order of this Court dated 05.07.2012, the
      appellants filed an affidavit dated 17.08.2012 bringing on record Form
      Nos. I & XIV dated 13.07.2012. The Notification dated 11.01.1951
      published in the Government Gazette was also brought on record. A
      Mining Lease granted by Government of Panaji, Goa dated 09.03.1998
F     has also been brought on record where Mining Lease of an area of 51
      hectares in Survey No.2 of Village Quepem and Survey No.11 of Village
      Sulcorna was granted by State of Goa.
            5. An I.A. No. 187381 of 2019 was filed by the appellant seeking
      permission to file additional documents, i.e., Annexures 1 to 5 to the
      application. This Court by order dated 10.12.2019 allowed the application
G
      and permitted the respondents to file a reply to the application and the
      documents. On 10.12.2019, following order was passed by this Court:-
                  “We find sufficient grounds to take additional documents
            on record. Application is allowed.
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      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                               533
                 [ASHOK BHUSHAN, J.]

            Let the counsel for the respondents file a reply to the           A
      application and the documents, which have brought on the record,
      within four weeks.
             Let records of the Trial Court be also summoned. Registry
      to take appropriate steps.
             List on 28.01.2020.”                                             B

      6. By the above order, the record of the trial court was also
summoned, which was duly received by this Court and was perused by
the Court. In pursuance of the order dated 10.12.2019, counter reply
affidavit in reply to the application have been filed by the respondents
dated 10.01.2020.                                                             C

      7. We have heard Ms. Madhavi Divan, learned ASG for the
appellant and Shri Carlos A. Fereira, learned counsel for the respondents.
        8. Learned counsel for the appellants in support of the appeal
submits that the trial court having rejected the claim of the plaintiffs of   D
ownership and the plaintiffs having not filed any appeal, the findings that
they are not the owner of Survey No.11/1 has become final and no right
or title can be claimed with regard to Survey No.11/1 by the plaintiffs. It
is submitted that by Gazette Notification dated 11.01.1951 published in
the Government Gazette by the then Government of Goa the description
of the National Forests in District Goa was published wherein in Village      E
Sulcorna forest was declared and published. It is submitted that the
additional affidavit which have been brought on the record clearly indicate
that according to the Goa, Daman and Diu Land Revenue Code, 1968
and Rules framed therein,when land survey was made with regard to
Survey No.11 of area 230.54 hectares, name of Forest Department only          F
was recorded. A complaint was submitted by Vishnu Shivram Gaonkar,
one of the plaintiffs to the Mamlatdar complaining that land from Survey
No.11 are recorded in the adjacent area in the name of the Forest
Department. It was claimed that land does not belong to the Forest
Department but belongs to the applicant. Request was made to conduct
a survey again and hand over applicant’s land to them. On the complaint       G
filed by the plaintiff Vishnu Shivram Gaonkar, Dispute Case No.3,
Sulcorna was registered and notice was issued to Vishnu Shivram Gaonkar
to appear on 20.10.1975 on which date, he appeared before the
Mamladatar and withdrew his application dated 07.08.1975. It is
submitted that despite the withdrawal of the application by Vishnu
                                                                              H
534             SUPREME COURT REPORTS                             [2020] 4 S.C.R.


A     Shivram Gaonkar in Form III, name of Vishnu Shivram Gaonkar, Shri
      Narayan Vishnu Gaonkar and Shri Rama S.F. Dessai were added
      alongwith the Forest Department referring to Dispute Case No.3. It is
      submitted that when the complaint was withdrawn by the plaintiff, there
      was no occasion of their names to be added alongwith the Forest
      Department in the Survey No.11/1, hence their name was wrongly entered
B
      which deserves to be expunged. It is submitted that it was the Forest
      Department, who was in possession of the Survey No.11/1. The State
      has granted Mining Lease on the Survey No.11/1, which clearly proves
      that it was the State of Goa, which was in possession of Survey No.11/
      1 and there was no possession of the plaintiffs.
C            9. Learned counsel appearing for the defendants refuting the
      submission of the appellants contends that the names of plaintiffs’
      ancestors were recorded in matriz document No.4, which clearly proves
      that it was the plaintiffs’ forefathers, who were owners of the suit
      property. It is submitted that the complaint was filed by one of the plaintiffs
D     dated 07.08.1975, which was the complaint with regard to adjoining land
      of the plaintiffs and not with regard to suit land. He submits that
      withdrawal of the complaint shall have no adverse effect on the right of
      the plaintiffs. He further submits that insofar as lease granted by the
      State of Goa is concerned, it is the State, which has right to grant the
      lease, even if the land is owned by a tenure holder. He submits that grant
E     of mining lease by the State has no effect on the rights of the plaintiffs.
      He has relied on a judgment of the Bombay High Court dated 10.12.2013
      in Writ Petition No. 158 of 2005 – Smt. Maria Teresa Philomena
      D’Rocha Pegado Vs. State of Goa and Others.
             10. We have considered the submissions of the learned counsel
F     for the parties and have perused the records. We have also gone through
      the original record of the trial court received in pursuance of the directions
      of this Court’s order dated 10.12.2019.
             11. The suit filed by the plaintiffs for seeking direction to delete
      the name of “Forest Department” from the survey entry No.11/1 of the
G     village Sulcorna and to declare the plaintiffs as the exclusive owner of
      the property bearing survey No.11/1 having been dismissed by the trial
      court and no appeal having been filed by the plaintiffs against the said
      judgment the rejection of the claim of the plaintiff’s ownership of survey
      No.11/1 has become final. In the suit filed by the plaintiffs the appellant
H     had filed the counter-claim which was rejected by the trial court against
      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                                  535
                 [ASHOK BHUSHAN, J.]

which appeal was filed by the appellant which has been dismissed by              A
the High Court against which judgment the appellant has come up in this
appeal.
       12. The only question to be answered in this appeal is as to whether
the counter-claim filed by the appellant had rightly been rejected by the
courts below. For answering the above question, we need to notice the            B
sequence of the events and the evidence on record filed before the
courts below as well as the additional evidence filed by the appellant in
this Court.
       13. The plaintiffs’ case before the trial court was that the names
of the plaintiffs’ ancestors i.e. Essu Gauncar, Horry Gauncar, Mocunda           C
Gauncar, Gonoba Gauncer, Siva Gauncar, all of Sulcorna were recorded
in the Matriz document.
       14. The Rules were framed, namely, the Goa, Daman and Diu
(Record of Rights and Register of Cultivators) Rules, 1969. Public notice
in Form II was issued with regard to village Sulcorna in which survey            D
No.11/1 was recorded in the name of “Forest Department” only. In the
additional documents notice published in Form II has been brought on
record as Annexure-1 to I.A.No. 187381 of 2019. Notice in Form II
was published as per Rule 5. Rule 5 of the Rules, 1969 is as follows:
      “5.Issue of notice. - (1) When the Record of Rights is to be               E
      introduced in any village for the first time, the Talathi shall issue a
      public notice in Form II calling upon all persons who have any
      interest in the lands in the village to furnish to him either in writing
      or orally information on all or any of the following points within
      one month from the date of the public notice:
                                                                                 F
          (i)   Survey number and sub-division number, if any, of the
                land (or where the lands are not surveyed, the name of
                the field and its boundaries) in which he has any interest
                as holder, occupant, owner, tenant, landlord, mortgage,
                Government lessee or in any other manner.
                                                                                 G
          (ii) The nature of interest in the land.
          (iii) The tenure on which the land is held, that is to say whether
                the land is held as owner, occupant class I or II or
                Government lessee.
          (iv) The encumbrance or charge, if any, on the land and the            H
               name of the holder of such encumbrance or charge.
536            SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A           (2) The aforesaid notice shall be published in the village by beat
            of drum and by affixing copies thereof in a conspicuous place in
            the village and where there is a village panchayat in the office of
            the village panchayat.”
             15. When the notice was published in Form II mentioning the
B     name of the ‘Forest Department’ against survey No.11/1, Vishu Shivram
      Gaonkar one of the plaintiffs filed an application to Mamlatdar stating
      following:
            “Sub: Application regarding the incorrect land survey.”
            This is to inform you that the Records of Right are surveyed in
C           our village Sulkarna. I have seen the maps prepared by the
            Cadastral Survey. The maps are not correct i.e. our land is
            excluded from the map.
            The land adjacent to some of our land is recorded in the name of
            Forest Department. But the land from our survey No.11 Kanyamal,
D           Survey No.16 Charbhat, Survey No.21 Mutfond, 22/1, 22/2
            Patondem these Bimbad, Survey No.43, Chanode, Survey No.44
            Chanode, all from these lands are recorded in the adjacent map
            and that land is recorded in the name of Forest Department.
            But land owned by us is existing in that land and the documents
E           regarding the place (land) are in the name of my father Shivaram
            Vishnu Gaunkar and Narayan Vishnu Gaonkar. We state that the
            land does not belong to the Forest Department but belongs to us.
            Kindly conduct a survey again and hand over our land to us.
            Regards,
F
            Yours faithfully,
            Vishnu Shivaram Gaonkar”
             16. On the basis of the application filed by Vishnu Shivaram
      Gaonkar a notice was issued in Form VI to Vishnu Shivaram Gaonkar
G     who had raised the dispute asking him to present on 20.10.1975 in
      reference to his application. The said Form VI i.e. notice dated 01.10.1975
      has been brought on record as Annexure-5 to I.A.No.187381 of 2019.
      Vishnu Shivaram Gaonkar appeared before the Revenue Authority on
      20.10.1975 and stated that he wished to withdraw his application dated
      07.08.1975 addressed to Mamlatdar for correction of records of rights.
H
      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                                  537
                 [ASHOK BHUSHAN, J.]

This is further to be noted that on the application filed by Vishnu Shivaram     A
Gaonkar. Dispute Case No.3, Sulcorna was registered. Rule 6 of Rules,
1969 provides a detailed procedure for preparation of Index of Lands
which contains the entire procedure from preparation of draft of the
Index of Lands in Form III and subsequent procedure including individual
notice in Form VI to those who have raised objections. Rule 6 for ready
                                                                                 B
reference is extracted below:
             “6. Preparation of Index of Lands.— (1) The Talathi
      shall on the basis of the information received under Section 96
      and 97 or such information as he may collect by making local
      inquiry prepare a draft of the Index of land in the village in Form
      III.                                                                       C

             (2) The draft of the Index of Lands prepared under sub-
      rule (1) shall, after being checked by the Revenue Inspector or a
      Survey Officer not below the rank of a Revenue Inspector, be
      published by issuing a notice in Form IV and publishing the notice
      in the manner provided in sub-rule (2) of rule 5. The notice shall         D
      call upon all persons having interest in the lands in the village to
      inspect the draft, which shall be kept open for inspection for a
      period of thirty days on the dates and times and at a place (which
      shall be convenient to the villagers) to be specified in such notice
      and to submit to him in writing within one month from the last date        E
      for inspection specified in the said notice * [or within such date
      the Government by Notification at any time before the promulgation
      may specify] their objections, if any, to any of the entries in the
      draft. The notice shall also mention the date (such date being not
      earlier than one month from the expiry of the period specified for
      submission of objections) on which the entries in the draft will be        F
      read aloud in public and the objections received within the
      prescribed period shall be inquired into decided by a Survey Officer
      or as the case may be, a Revenue Officer not below the rank of
      an Awal Karkun and call upon the persons having interest in lands
      to be present at the aforesaid occasion.                                   G
             (3) If from the objection received by the Talathi under sub-
      rule (2), he finds that disputes exist relating to entries in respect of
      certain lands, he shall enter such disputes in a register of disputed
      cases, which shall be maintained for each village in Form V. He
      shall simultaneously give individual notice in Form VI to each             H
538             SUPREME COURT REPORTS                              [2020] 4 S.C.R.


A            person who appears to him to be interested in the disputed entry,
             informing him of the dispute and calling upon him to be present on
             the date the dispute is to be heard and decided.
                    (4) On the date specified in the notice issued under sub-
             rule (2), the Revenue or Survey Officer concerned shall at the
B            appointed place and time read aloud in the presence of the persons
             assembled, the draft of the Index of Lands for the village. He
             shall then inform them of the lands in respect of which disputes
             have been raised and ask them whether they admit the entries in
             respect of the remaining lands. If they admit such entries the
             officer shall make a remark to that effect in the remarks column
C            of the draft. If in respect of any entry any error is pointed out and
             is admitted by all concerned, the entry shall be corrected and a
             remark made to that effect in the remarks column. If a dispute is
             raised in respect of any entry it shall be entered in the register of
             disputed cases.
D                   (5) Thereafter the officer concerned shall, after verifying
             whether the Talathi has given individual notices under sub-rule
             (3), proceed to decide the disputed cases entered in the register
             of disputed cases and record therein his decision in respect of
             each dispute. The decision shall be announced to the persons
E            assembled.
                   (6) The entries in the draft of the Index of Lands shall be
             corrected in red ink by the Talathi in the light of the decisions
             given under sub-rule (5).”
             17. We have noticed above that as per Rule 5 in Form II notice
F     was issued inviting all persons who have any interest in the lands in the
      village to furnish to him either in writing or orally information and objection.
      In the present case after draft of the Index of Lands prepared under
      Rule 6 objection was filed by Vishnu Shivram Gaonkar as noted above
      on which individual notice was also issued to him in Form VI asking him
G     to appear on 20.10.1975. On 20.10.1975 proceeding sheet of Court of
      Aval Karkun for record of rights indicates that on 20.10.1975 applicant
      Vishnu Shivram Gaonkarmade a statement which is brought on record
      at page 17 of I.A.No.187381 of 2019 which is to the following effect:
             “BEFORE AVAL KARKUN
H            I shall speak the truth and say*** *****
      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                              539
                 [ASHOK BHUSHAN, J.]

          Name         :    Vishnu Shivram Gaonkar                           A
          Age          :    21 yrs – bachelor
          Profession :      Agriculturist
          Resident     :    Sulcorna
      ** state that I wish to withdraw my application dated 7-8-75           B
      addressed to Mamlatdar for record of rights.


                                                   Sd/-
                                            Vishnu Shivram Gaonkar
      Pirla                                                                  C
      20/10/75
                                                Before me
                                                  Sd/-”
       18. The record of proceeding sheet dated 20.10.1975 indicates
that after recording the statement of Vishnu Shivram Gaonkar the case        D
was closed. The above proceedings indicate that the objection filed by
Vishnu Shivram Gaonkar was withdrawn and hence there was no
decision taken in Dispute Case No.3.Even after withdrawal of the claim
by the plaintiff, the names of plaintiffs, Vishnu Shivram Gaonkar, Narayan
Vishnu Gaonkar and Rama S.F. Dessai were added by correcting the             E
Form III in redink as required by sub-Rule(6) of Rule 6. The entry of
names of the above persons along with Forest Department was stated
to be as per D.C.3 as is clear from Form III Annexure-2 brought on
record by the appellant. A coloured print of above Annexure-2 has been
placed before us by learned ASG which is taken on record, which
indicates that in Form III the addition of names of three persons was by     F
red ink. When Vishnu Shivram Gaonkar had withdrawn his claim for
deletion of name of Forest Department, we fail to comprehend that as to
how despite that withdrawal which is duly recorded in the proceedings
their names can be added along with Forest Department against survey
No.11/1. Thus, the recording of names of the plaintiffs in survey            G
No.11/1 along with the name of the Forest Department was illegal and
not as per Rule 6 of Rules, 1969.When there was no decision in favour
of the plaintiffs, applicant on the objection dated 07.08.1975, there was


                                                                             H
540             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A     no question of adding their names in Index of Lands against survey
      No.11/1.The addition of the names of the plaintiffs against survey
      No.11/1 was completely without jurisdiction and the said entry cannot
      be allowed to be continued.
             19. That in the suit filed by the plaintiffs being Special Civil Suit
B     No.64 of 1995, there is no mention of entire proceedings regarding
      correction of records undertaken in 1975. The plaintiffs in the suit did
      not disclose the aforesaid facts which were relevant for determining the
      issues in consideration in the suit. Plaintiffs thus have completely failed
      to justify the continuance of their names against survey No.11/1.
C            20. From the additional evidence brought on the record by the
      State, it is clear that in the record which was published of the Village
      Sulcarna for survey No.11, it was the name of only Forest Department
      which was mentioned on survey No.11 area 230.45.00 hectares and the
      addition of the name of Vishnu Shivaram Gaonkar and two others were
      in pursuance of Dispute Case No.3. The Goa, Daman and Diu Land
D     Revenue Code, 1968 was enacted to consolidate and amend the Law
      relating to Land and Land Revenue in the Union of territory of Goa,
      Daman and Diu as then existed. Section 14 of the Code, 1968 which is
      relevant for the present case is as follows:
                   “14. Title of Government to lands, etc.— (1) All lands,
E           public roads, lanes and paths and bridges, ditches, dikes and fences
            on or beside the same, the bed of the sea and of harbours and
            creeks below the high water mark, and of rivers, streams, nallas,
            lakes and tanks, and all canals and water courses, and all standing
            and flowing water and all rights in or over the same or appertaining
F           thereto, which are not the property of any person, are and are
            hereby declared to be the property of the Government subject to
            right of way, and all other rights, public and individual, legally
            subsisting.
                   Explanation:— In this section, “high water-mark” means
G           the highest point reached by ordinary spring tides at any season
            of the year.
                   (2) Unless it is otherwise expressly provided in any law for
            the time being in force or in the terms of a grant made by the
            Government, the right to mines, minerals and mineral products
            shall vest in the Government and it shall have all the powers
H
            necessary for the proper enjoyment of such rights.
      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                                 541
                 [ASHOK BHUSHAN, J.]

             (3) Where any property or any right in or over any property        A
      is claimed by or on behalf of the Government or by any person as
      against the Government and the claim is disputed, such dispute
      shall, after due notice has been given and after holding a formal
      inquiry, be decided by the Collector or 11 [an officer authorised
      by the Government in this behalf.
                                                                                B
              (4) Any person aggrieved by an order made under sub-
      section (3) or in appeal or revision there from may institute a civil
      suit to contest the order within a period of one year from the date
      of such order, and the decision of the civil court shall be binding
      on the parties.
                                                                                C
             (5) Any suit instituted in any civil court after the expiration
      of one year from the date of any order passed under sub-section
      (3) or, if appeal or revision application has been made against
      such order within the period of limitation, then from the date of
      any order passed by the appellate or revisional authority, shall be
      dismissed (though limitation has not been set up as a defence) if         D
      the suit is brought to set aside such order or if the relief claimed is
      inconsistent with such order, provided that the plaintiff has had
      due notice of such order.
            (6) Any person shall be deemed to have had due notice of
      an inquiry or order under this section if notice thereof has been         E
      given in accordance with rules made in this behalf by the
      Government.”
      21. The respondents had filed reply to I.A.No.187381 of 2019
and the additional documents which have been filed along with IA, the
objection has been taken with regard to said documents being filed after        F
long delay. With regard to the documents filed by the State along with IA
following averments have been made in paragraphs 3.1 to 7:
      “3.1 I respectfully state at the outset that these documents are
      public records and in public domain and consequently it was not
      difficult for the State Government/Forest Department to have had          G
      knowledge and/or access to these documents.
      4. I say that the entire proceedings in the Trial Court and the High
      Court have been defended for the State by the Forest Department
      and surely the Forest Department knew of these documents and
      cannot feign ignorance at this belated stage.                             H
542             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A           5. I say that the affidavit does not even reveal why these
            documents were not available with the Department and why were
            not produced in the proceedings, specially considering that the
            Civil Suit in the Civil Court, Quepem, South Goa, Goa was filed
            way back in 1995 – almost quarter of a century.
B           6. Without prejudice to what is stated hereinabove, I say that the
            copy of the undated Application of Vishnu Shivram Gaonkar
            (referred as Application dated 07.08.1975) when perused would
            show that the claim in this application makes one plea- that the
            maps are not correct since land of Vishnu Shivaram Gaonkar has
            been excluded from the map and recorded in the adjacent map
C           “and that land is recorded in the name of Forest Department”.
            7. I therefore respectfully submit that the application of 1975 has
            no bearing with the suit property which is subject matter of the
            SLP and is totally irrelevant for consideration in facts and
            circumstances of the present case.”
D
             22. The respondents themselves claim that the documents which
      have been filed are public records and in public domain, only objection
      raised by the respondents is that it was not difficult for the State to have
      had knowledge and access to these documents. The veracity of the
      documents has not been disputed.
E
             23. We have already noticed our order dated 10.12.2019 where
      these additional documents have already been accepted with direction
      to the respondents to file a reply to the application. The respondents do
      not dispute of having raised the objection after Revenue records were
      published mentioning “Forest Department” against the survey No.11/1,
F     when the plaintiffs-respondents have withdrawn their application on
      20.10.1975, they cannot be allowed to object the Entry of Forest
      Department regarding survey No.11/1 as published in Form II.
             24. The matriz document which is claimed to be the basis of rights
      by the plaintiffs-respondents is not the document of title. The Bombay
G     High Court in Fabrica da Igreja de N.s. de Milagres vs. Union of
      India and others, (1995) 1 Bom CR 588 dealing with matriz document
      laid down following in paragraph 14:
            “14………It is a settled position that a matriz document is neither
            an instrument of title nor a source of possession and that the
H           organisation of the “matriz predial” is a mere administrative
      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                                543
                 [ASHOK BHUSHAN, J.]

      exercise aimed at collecting tax revenues from the land. As such         A
      no legal evidentiary value can be attributed also to the said
      registration for the purpose of establishing ownership title or
      presuming possession on the land.”
       25. More so, the plaintiffs ought to have agitated for their claim
with regard to survey No.11/1 and ought not to have withdrawn application      B
dated 07.08.1975 before the Revenue Official. It is relevant to notice
that in the suit which was filed by the plaintiffs any mention of the
proceedings regarding records of rights of survey No.11/1 undertaken
earlier were not referred to and the mention of proceedings under
Revenue Code, 1968 and Rules, 1969 is conspicuously absent. The trial
court having dismissed the suit of the plaintiffs for declaring them owner     C
of survey No.11/1, we do not find any justification for continuance of the
names of the plaintiffs in survey No.11/1 of Village Sulcorna.
       26. The State in its written statement has claimed that Sulcorna
has declared as forest by Gazette Notification dated 11.01.1951 which
Gazette was filed as Annexure AA-3 filed on the record which mentions          D
Forests Sulcorna and the name of Village Sulcorna,the Court below had
not placed reliance on the said Gazette only for the reason that the Gazette
does not mention any survey number. Survey No.11 was situate in the
Forest area is further proved by the documents brought on the record by
the appellant i.e. Mining Lease which was granted w.e.f 22.11.1987 for         E
survey No.2 of Village Curpem and survey No.11 of Village Sulcorna.The
conditions of the Lease Deed indicate that survey numbers on which
Lease was granted situate in the Forest area,the relevant condition No.4
of the Lease is as follows:
      “To enter upon reserved forests.                                         F
             4. Notwithstanding anything in this Schedule contained the
      lessee/lessees shall not enter upon any reserve forests included in
      the said lands without previous sanction in writing of the District
      Forest Officer nor fell cut a use any timber or trees without
      obtaining the sanction in writing of that Officer nor otherwise          G
      than in accordance with such conditions as the State Government
      may prescribe.”
       27. In the Chapter of General Provisions, Clause 15 requires “Lease
status of forest land will remain unchanged”.
                                                                               H
544             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A            28. The suit filed by the plaintiffs was to delete the name of Forest
      Department from survey No.11 which suit having been dismissed the
      name of the Forest Department continues with regard to survey
      O.11/1.Even though Gazette dated 11.01.1951 does not mention survey
      No.11 but Forest was declared in Village Sulcorna and Survey No.11 is
      forest land is proved by other evidence. We are satisfied that the counter-
B
      claim filed by the State deserved to be allowed and the name of the
      plaintiffs-respondents from survey No.11/1 deserved to be struck off.
             29. Learned counsel for the respondents relying on the judgment
      of the Bombay High Court at Goa in Writ Petition No.158 of 2005 (Smt.
      Maria Teresa Philomena D’Rocha Pegado vs. State of Goa and
C     others), has submitted that Portuguese Colonial Mining Law was in
      force prior to Goa becoming Union Territory and the State was owner
      of proprietorship of all deposits of minor minerals etc. which was so
      noted in the above case by the Bombay High Court. Learned counsel
      for the respondents has referred paragraphs 14 and 31 of the judgment
D     which are to the following effect:
            “14. It would be relevant to refer to Article 2 of Decree dated
            20.09.1906 which was a Portuguese Colonial Mining Law in force
            during the erstwhile regime, which reads thus:
                “The proprietorship of deposits of metals and metalliferous
E               minerals, including bismuth, arsenic, antimony, sulphur, graphite,
                combustible minerals with the exception of peat, bituminous
                substances and mineral oils, precious stones, alkalis, phosphates,
                mica and amianthus belongs to the State; such beds cannot be
                prospected or worked without licence and concession by
F               Government in the terms of the present Decree.”
            A perusal of Article 2 of the aforesaid decree would reveal that
            all metals and metal-liferous minerals belong to the State and such
            beds cannot be prospected or worked without licence and
            concession by the Government.
G           31. We are, therefore, of the considered view that in view of the
            provisions of sub-section (2) of Section 14 and Section 36 of the
            Land Revenue Code, read with the provisions of Article 2 of
            Decree dated 20.09.1906 which was a Portuguese Colonial Mining
            Law, the right in the minor minerals vests solely in the State
            Government and the State Government has all powers necessary
H
      STATE OF GOA v. NARAYAN V. GAONKAR & ORS.                                545
                 [ASHOK BHUSHAN, J.]

      for the purpose of enjoyment of such rights. We find that this           A
      position is fortified by the provisions of Section 24A of the said
      Act, which is applicable to all minerals, including minor minerals.”
        30. The above judgment of the Bombay High Court reiterated
that it is the State which is the proprietor of all minerals beneath the
land. There can be no dispute to the above proposition.For the purpose         B
of this case what was relied by the appellant was that Mining Lease
granted for survey No.11, Lease conditions clearly mention the area as
forest area with the requirement to maintain the status of land as the
forest land. The grant of Lease by the State is not disputed by the
plaintiffs-respondents also. We, thus, are of the considered opinion that
the name of the Forest Department recorded in survey No.11, deletion           C
of which has been refused and the name of plaintiffs-respondents in the
record in the manner and circumstances in which it came on the records
of rights does not establish any claim of the plaintiffs-respondents and
defendant has clearly made out the case for allowing counter-claim.
The additional evidence brought on record by the State before this Court       D
which has been accepted on record fully support the counter-claim of
the defendant. We, thus, are of the view that counter-claim of the
defendant-appellant deserves to be allowed and the judgment of courts
below is to be modified to the above extent.
       31. In view of the foregoing discussion, the appeal of the appellant    E
is allowed, the counter-claim filed by the defendants in Suit No.64 of
1995 is allowed. The name of plaintiffs-respondents be deleted from the
occupant’s column in survey No.11/1 Sulcorna Village of Quepem Taluka,
District Goa. Parties shall bear their own costs.

                                                                               F
Ankit Gyan                                                   Appeal allowed.




                                                                               G




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