STATE OF GUJARAT Vs. NATWARLAL MOHANLAL SHAH

JUDGEMENT

(1.) The short facts of the case are that on 17.2.1979, the proceedings of inquiry for the Songadh City Survey being CTS No.24 were initiated and the Inquiry Officer had declared that the land bearing No.39 admeasuring 809.37 sq. mtrs., is of ownership of Shri Natwarlal Mohanlal. The matter was carried before the Dy. Collector by Shri Natwarlal Mohanlal Shah?respondent herein being CTS No.2 of 1979 and the Dy. Collector Vyara in the order dated 9.7.1979 found that there is some over-writing qua the area of the land and, therefore, cancelled the order of the Inquiry Officer and remanded the matter. It appears that thereafter the City Survey Officer examined the matter and found that there is over-writing of the are over the area and there are erosions and abrasions in the measurement of the land and he found that it is not clear as to what exactly the area was being held and further the land was granted on lease for 30 years and the sale had taken place without prior permission. Therefore, he passed the order on 25.7.1983, whereby he declared the ownership of the land as that of the State Government and further declared that the respondent has made encroachment over the said land. The respondent carried the matter before the Dy. Collector in Appeal No.148 of 1983. However, the said appeal was dismissed as per the order dated 4.6.1984. The respondent further carried the matter before the Collector being Appeal No.100 of 1985 and the District Collector also as per the order dated 4.4.1985 dismissed the appeal. The respondent further carried the matter before the Gujarat Revenue Tribunal being No.TNAS No.3/85 and the Tribunal as per the judgement dated 25.8.1989 allowed the revision and set aside the order passed by the Mamlatdar and City Survey Officer, its confirmation thereof by the Dy. Collector and the Collector and declared that the appellant is the owner of land S No.1320 admeasuring 9 gunthas - 1089 sq. yards. It is under these circumstances, the State Government has approached this Court by preferring the present petition.

(2.) I have heard Mr.Mengdey, learned AGP for the petitioner, State of Gujarat, and I have also heard Mr.Mehta, learned Counsel for the respondent. Upon the earlier order passed by this Court, the Asst. Government Pleader was directed to make the original record available for the perusal of the Court and the same is also considered being relevant while deciding the matter. The perusal of the original record, which is also shown to the learned Counsel appearing for the respondent, shows the following aspects:

(3.) In normal circumstances, this Court while exercise of power under Article 227 of the Constitution of India would be at loath to examine the original record, its appreciation and/or reappreciation. However, as the matter pertained to tampering with the Government record, more particularly in the measurement of the land in question and as recorded by the Tribunal itself, the original record was also made available to the Tribunal, it was found proper by this Court to consider the same as per the order passed earlier to call for the original record. The perusal of the aforesaid record shows that the original area mentioned was 333 sq. yards and there is over-writing by making it 1089 sq. yards. It appears that the Tribunal in the impugned order has recorded at para 5, inter alia, that the Talati had appeared with the record and produced the record and the Tribunal has further recorded that the man from City survey Office had appeared with the record and shown the record. In spite of the aforesaid position of the original record as mentioned hereinabove by this Court, the Tribunal has, ex facie, wrongly recorded that there were no alteration in this record produced by Talati. It appears that in spite of the aforesaid position in the later portion of para 5, the Tribunal has observed that the entries of alterations are not produced to show in what manner the alterations are made. It is further observed by the Tribunal that if the record was so important that it could not be produced, he should have produced photo copies of the record, so that the Court can come to the conclusion as to in what way the alterations were made and the same has not been done. The aforesaid finding of the Tribunal on the face of the earlier recital of the production and the original record is factually incorrect and this shows ex-facie not only error apparent on the face of record, but it can rather be said as the jurisdictional error in not considering the original record produced before the Tribunal during the course of the hearing for proper adjudication of the matter, when the gist of the matter was as to whether any alteration is made in the original record or not and, if yes, what could be the correct area as per the original record.