SECRETARY Vs. SAMA SIDHIK SAHEB AND ORS

JUDGEMENT

(1.) By way of this petition, the petitioner - State has challenged the judgment and order of the Gujarat Revenue Tribunal, dated 9.2.1993 in Appeal No. TEN.A.K.2 of 1990 whereby the Tribunal has allowed the appeal filed by the respondents and quashed and set aside the order passed by the lower Court under Section 37(2) of the Land Revenue Code (hereinafter referred to as 'the Code') by declaring the land bearing Survey Number mentioned in the order situated at Kala Dungar and Gora Dungar in the maps of the village Juna, Dhoravar, Rabviyari, Kumariya, Ganipor, Tunga, Kutri, Dhrobana, etc. of Western Kutch were of the private ownership of the respondents.

(2.) The brief facts of the case are that, 9 respondents out of the present respondents filed an application under Section 37(2) of the Code in the Court Mamlatdar, Bhuj on 31.7.1968 stating therein that Kala Dungar and Gora Dungar situated in the village Khavda are of the ownership of the respondents. It was their case that they were the Inamdars of village Khavda and claimed that under Section 10 of the Bombay Inam (Kutch Area) Abolition Act (hereinafter referred to as 'the Act') all public roads, lanes, path, bridges, ditches, etc. vests in the Government but Kala Dungar and Gora Dungar were not included under Section of the said Act. There were several trees on both these Dungars and grass were also grown naturally on these Dungars. Therefore, they are of the nature of "Rakhal" and such "Rakhal" properties could not vest in the Government under Section 10 of the Act. It is stated that at the time of proceedings under the Act, the respondents represented their case before the Mamlatdar that both these Dungars should not vest in the State Government under Section 10 of the Act. The Mamlatdar directed the respondents to file necessary applications under Section 37(2) of the Code for obtaining necessary order under the provisions of the Code. Therefore, in view of the aforesaid facts and circumstances, they filed an application before the Court of learned Mamlatdar, Kutch for such declaration.

(3.) I have heard learned AGP Mr. Rashesh Rindani, appearing for the petitioner-State. He has submitted that the judgment and order passed by the Tribunal is contrary to the provisions of law and evidence on record. He submitted that there is nothing on record to show that the respondents were the owners of the land and in spite of that the Tribunal a finding in paragraph 15 of the judgment and order that the disputed land is "Rakhal" which does not come within the purview of Section 10 of the Act. He further submitted that there was no material on record to support this finding of the Tribunal and therefore, the judgment and order of the Tribunal is required to be quashed and set aside. According to the submission of learned AGP Mr. Rindani, prior to the year 1948, the District of Kutch was ruled by the Royal Family. Most of the villages are given by the ancestors of the Royal Family to the Inamdars and they were looking after the administration and management of such villages. In Khavda area of Taluka Bhuj, villages of Kunariya, Kuran, Dhoban, Rathadia, Gorava, Thuga, and Juna are situated. As per the geographical situation, in the middle of all these villages, there were waste lands and Kala Dungar and Gora Dungar are two prominent Dungars and all the aforesaid 7 villages used these Dungars for the purpose of grazing their cattle. On coming into force of the Inam Abolition Act, as per the provisions of Section 10 of the Act, all the public roads, lanes, paths, bridges, ditches, etc. were vested in the Government. He submitted that in the present case, as per the case of the respondents, in these two Dungars trees and grass naturally grow and they used to give permission to the people to cut woods and graze their cattle. He further submitted that on coming into force of the Act, the said gauchar and waste lands vested in the Government as per Section 10 of the Act. But, the Tribunal has not considered these facts and the legal provisions of the Act and therefore erred in passing the impugned judgment holding that the respondents are the owners of the land in question.