1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7916 OF 2003 Shri.Vinayak Yadneshwar Sathe. ...Petitioner. vs. 1.Union of India & ors. ...Respondents. --- Mr.C.G.Gavnekar, for Petitioner. Mr.S.R.Rajguru with R.C.Master, for Respondents. --- CORAM: D.K.DESHMUKH & J.H.BHATIA, JJ. DATED: 6th May,2008. P.C.:- 1. By this petition filed under Article 226 of the Constitution of India, the petitioner challenges the order dated 3.9.2003 and the corrigendum dated 2 18.9.2003 made by the respondent no.4-Deputy Salt Commissioner holding that the claim of the petitioner that he is the owner of the land being Survey no.239 of Village Koproli, Taluka Pen is not correct and that the petitioner is not the owner of the land. The petitioner also challenges the panchanama dated 7.8.2003 by which possession of the land was taken by the Government. According to the petitioner, the suit land was being used for cultivation of salt. According to the petitioner, as a result of the consent terms filed in Regular Civil Suit no.40 of 1938, the suit land came to be transferred to one Dattatray Ramchandra Nagarkar. The vendors were Ganesh Ramchandra Joshi Potnis and six others. The sale deed executed pursuant to the consent terms is a registered sale deed registered on 20.5.1941. According to the petitioner, the land was inherited by Smt.Sushilabai Dattatraya Nagarkar from her husband who expired on 15.1.1980. By a Will executed by said Sushilabai dated 25.9.1988 she bequeathed the land to the petitioner. The petitioner thus claims to be the owner of the land by virtue of the Will left behind by Sushilabai. According to the petitioner, 3 Deputy Salt Commissioner, Bombay had granted licence to the husband of Sushilabai to cultivate salt on the land. According to the petitioner, licence to manufacture salt was also issued in favour of Sushilabai who expired on 19.7.1997. It appears that the petitioner also applied for transfer of lincece in his favour but the authorities refused to transfer the licence without the petitioner agreeing to execution of lease deed in his favour by the Government of India of the land. The petitioner did not agree to it because he claims to be the owner of the land. Ultimately, the possession of the land was taken on behalf of the Government of India and the panchanama was made. It is that panchanama which is challenged in the petition. It appears that writ petition no.4924 of 2003 was filed in this court by the petitioner. That petition was disposed of by order dated 8.8.2003. By that order, the parties were directed to appear before the Deputy Salt Commissioner and to submit relevant documents and the Deputy Salt Commissioner was directed to decide the question. It was also directed that if the Deputy Salt Commissioner upheld the contention of the 4 petitioner, the possession of the land which was with the Government shall be given back to the petitioner. It is pursuant to that order, the Deputy Salt Commissioner passed order dated 3.9.2003 rejecting the contention of the petitioner that the petitioner is the owner of the land. That order is also challenged in this petition. 2. The learned Counsel appearing for petitioner submits that the predecessors in title of the petitioner were in possession of the land since 1834, therefore, the petitioner is the owner of the land. It was submitted that in the Jamin Kharda for the year 1932 an entry has been made showing the predecessor-in-title of the petitioner as occupant of the land. It is submitted that an occupant means a person who is in actual possession of the land. According to the petitioner, the entry in Jamin Kharda showing predecessor-in-title of the petitioner as owner establishes his title to the land. On the basis of the provisions of Section 172 of the Government of India Act,1935 and the notification issued by the Central Government under that 5 provision, it is claimed that the Union of India cannot claim to be the owner of the land. It is also submitted that on the basis of Rule 7 (a),(b),(c) and Rule 8 of 1890 Rules, Union Government cannot claim title in the land. It is further submitted that on the basis of the conditions on which licence to manufacture salt was granted by the salt commissioner, the Union of India cannot claim ownership of the land. On behalf of the respondents, it was submitted that the petitioner has not at all been able to establish that he has title to the land. It was contended that the petitioner has not produced any document which can show that at any point of time the Government had granted land in favour of predecessor-in-title of the petitioner. The respondents place reliance on the judgment of the Division Bench of this court in the case “The Secretary of State for India Vs. Chimanlal Jamnadas, 1941 Bombay Law Reporter vol.XLIV 295”. The respondents also relied on the provisions of Section 172 of the Government of India Act,1935 and the judgment of the Federal Court in the case “AIR (30) 1943 Federal Court 13 (From Lahore), In the matter of 6 allocation of Lands and Buildings situate in a Chief Commissioner's Province and in the matter of reference by the Governor General under S.213, Government of India Act,1935.”, to claim that it is the Union of India which is the owner of the land. The respondents also relied on the provisions of Article 294(a) of the Constitution of India to claim that under the Government of India Act,1935, the land belonging to the Government of India and by virtue of Article 294 of the Constitution of India it continues to be owned by the Government of India. It was submitted that the reliance placed by the petitioner on the entry in the Jamin Kharda is not proper because the entry in Jamin Kharda is not about the ownership of the land and they are in relation to the manufacture or cultivation of salt on the land. It was also contended that as Will of Sushilabai is not probated, the petitioner cannot claim any ownership of the land. 3. We have heard the learned Counsel appearing for both the sides in detail. We have also gone through the record. We find that two points arise for 7 consideration in the present case viz. (i) whether the respondents were justified in taking possession of the land from the petitioner by merely making panchanama, and (ii) whether as claimed by the petitioner, the petitioner is the owner of the land in questin. 4. So far as the first point is concerned, it is clear from the record that, admittedly, the land was in possession of the petitioner and without there being any order made by any competent Court or authority, the respondents entered into possession of the land. The Supreme Court in its judgment in the case of “AIR 1989 Supreme Court 997, State of U.P. And others V. Maharaja Dharmander Prasad Singh etc.” has considered the question “whether the Government can take possession of the land without following the procedure prescribed by law”. In our opinion, the observations of the Supreme Court found in paragraph 15 of that judgment are relevant, they read as under:- “15. Shri.Sorabjee submitted that great hardship and injustice would be 8 occasioned to the respondents if the State Government, on the self-assumed and self-assessed validity of its own action of cancellation of the lease, attempts at and succeeds in, a resumption of possession extrajudicially by physical force. Sri Sorabjee referred to the notice dated 19.11.1985 in which the Government, according to Sri Sorabjee, had left no one in doubt as to its intentions of resorting to an extrajudicial resumption of possession, Sri Sorabjee referred to paras 3,10 and 4 of the order dated 19.11.1985. A lessor, with the best of title, has no right to resume possession extrajudicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression “re-entry” in the lease- deed does not authorise extrajudicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the 9 present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedegree'. In Bishandas V. State of Punjab, (1962) 2SCR 69 : (AIR 1961 SC 1570), this Court said (at pp.1574 and 1575 of AIR): “We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.” “Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law.” Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extrajudicial right of re-entry. 10 Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law.” It is clear that even assuming in favour of respondents that the petitioner had no authority to be in possession of the land, the respondents should not have just entered the land and taken possession without following the procedure established by Law for taking possession. However, that aspect of the matter has lost significance because the possession of the land has been restored to the petitioner by interim order of the Court made in this petition, and the petitioner is presently in possession of the land, no doubt, subject to the terms and conditions mentioned in the interim order. 5. So far as the question whether the petitioner has been able to establish his title to the land and whether the Salt Commissioner has 11 correctly arrived at the conclusion that the petitioner is not the owner of the land are concerned, in our opinion, the question of title of the petitioner to the land cannot be decided in the petition filed under Article 226 of the Constitution of India. The High Court does not ordinarily issues a writ in a petition filed under Article 226 of the Constitution of India when an alternate efficacious remedy is available. In the petition filed under Article 226 of the Constitution of India, High Court does not decide disputed questions of fact if the remedy under the General Law is available. Ordinary remedies are not to be replaced by Article 226 of the Constitution of India. Section 9 of the Civil Procedure Code in clear terms lays down that a Civil Court shall have jurisdiction to try all the suits of civil nature excepting suits of which cognizance is either expressly or by necessary implication barred. Thus, the jurisdiction to try an issue as to the title of land is precisely within the jurisdiction of the Civil Court and the remedy provided to a litigant for establishing his title to land is by filing a civil suit, and therefore, the High Court will not, 12 in a petition under Article 226 of the Constitution of India, decide the dispute as to the title to the land because a remedy under the general Law of filing civil suit for getting the declaration of title is available to the petitioner. In our opinion, the appropriate remedy of the petitioner is to file a civil suit for getting declaration of his title to the land, and because we are taking this view we do not propose to examine the submission made by both the sides in support of their case that they held title to the land, because any observations that we may make in the judgment may be used by the parties to influence the Civil Court which, in our opinion, is the appropriate forum for trying the issue of title. In our opinion, therefore, the disposal of this petition in the following terms will serve the interest of justice:- (i) In case, within a period of 12 weeks from today, the petitioner files a civil suit for a decree of declaration that he is the owner of the suit land and also for a decree of possession of the land, the 13 suit shall be tried by the Civil Court on its own merit on the basis of material produced before the Civil Court. (ii) In case, such a civil suit is filed, the interim order made in this petition in relation to the possession of the land which is presently in operation, shall continue to operate on the same terms and conditions. The respondents however shall be at liberty to apply for the vacation or modification of the order in case there is any change in the existing situation. Rule is disposed of accordingly, with no order as to costs. (D.K.DESHMUKH, J.) (J.H.BHATIA, J.) ---