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State of Gujarat Vs. Jesinghbhai Chhitabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 385 of 1971
Judge
Reported inAIR1979Guj119
ActsBombay Land Revenue Code, 1966 - Sections 63 and 64
AppellantState of Gujarat
RespondentJesinghbhai Chhitabhai and anr.
Appellant Advocate K.M. Chhaya, Asst. Govt. Pleader
Respondent Advocate I.M. Nanavati and; R.M. Vin, Advs.
Cases ReferredCouncil v. Raja of Vizianagaram.
Excerpt:
- .....it. the revenue authorities noticed that these 21 acres of land hereinafter referred to as 'the suit land) was not alluvial land but was bet bhatha land and that the plaintiffs were not entitled to hold it. therefore. the collector, broach, issued on 1lth may, 1967 notice to the plaintiffs for handing over its possession to the revenue authorities. the plaintiffs, therefore, filed the present suit for a declaration that they are the riparian owners of the suit land, that they are entitled to take its possession and that the suit land cannot be dealt with except in accordance with ss. 63 and 64 of the bombay land revenue code. they also pleaded that they are in lawful possession of the suit land and that the notice issued by the collector is illegal.2. in defence, the state denied that.....
Judgment:

S.H. Sheth, J.

1. The plaintiffs are the owners of Survey No. 395 situated on the northern bank of Narmada river in Breach District. It admeasures 99 acres and 17 gunthas. It is their case that on account of the, slow and gradual shifting of the course of Narmada, alluvial land was formed which admeasured 21 acres. They took its possession and began to cultivate it. The revenue authorities noticed that these 21 acres of land hereinafter referred to as 'the suit land) was not alluvial land but was Bet Bhatha land and that the plaintiffs were not entitled to hold it. Therefore. the Collector, Broach, issued on 1lth May, 1967 notice to the plaintiffs for handing over its possession to the revenue authorities. The plaintiffs, therefore, filed the present suit for a declaration that they are the riparian owners of the suit land, that they are entitled to take its possession and that the suit land cannot be dealt with except in accordance with Ss. 63 and 64 of the Bombay Land Revenue Code. They also pleaded that they are in lawful possession of the suit land and that the notice issued by the Collector is illegal.

2. In defence, the State denied that it was alluvial land but contended that it was Bet Bhatha land which was formed in 1961-62. The State also contended that the plaintiffs did not have any right to the suit land.

3. The learned trial Judge held that the suit land was alluvial land and not Bet Bhatha land. In that view of the matter. be further held that the plaintiffs were entitled to it in terms of Ss. 63 and 64 of the Bombay Land Revenue Code. He, therefore, passed in favour of the plaintiffs decree as prayed for by them.

4. It is that decree which is challenged by the State of Gujarat in this appeal. The only contention which Mr. K. M. Chhaya has raised on behalf of the State of Gujarat is whether the suit land is alluvial land or Bet Bhatha land. In Secretary of State for India in Council v. Raja of Vizianagaram. 49 Ind App 67: (AIR 1922 PC 105), the Privy Council has held that the recognition of title to alluvial accretion is largely governed by the fact that the accretion is due to the normal action of physical forces. It has been observed in that decision that under English rule alluvial accretion must be 'gradual, slow and imperceptible'. Elucidating this character of alluvial accretion, the Privy Council has further held that 'slow' and 'imperceptible' are only the qualifications of the word 'gradual'.

5. The word 'gradual' with its qualifications only defines a state relating to the conditions to which it is applied. However, the Privy Council has warned that the actual rate of progress necessary to satisfy the rule when used in connection with English rivers is not necessarily the same when it is applied to the rivers in India.

6. In Aiyer's Law Terms and Phrases, 1973 Edition. the connotation of the expression 'alluvion' has been stated as 'an imperceptible addition when anything is so gradually and secretly added that we cannot perceive by our senses the quantity which at each moment of time is detached from the land of another person and added to others'. in other words, 'alluvion' is an imperceptible increase. A land is said to be acquired by alluvion when it is acquired so gradually that one cannot say how much was added at a particular time, However, if the accretion is sudden, it is called dereliction. It is, therefore, clear that where there is 'gradual, slow, and imperceptible' accretion of land it is, alluvion or alluvial land. However. if there is a sudden emergence of some land either on account of flood or on account of river changing its course or on account of other, natural or physical forces, it is dereliction or Bet Bhatha land.

7. The question relating to alluvial land has been dealt with by Ss. 63 and 64 of the Bombay Land Revenue Code, 1879. S. 63, inter alia, provides that when it appears to the Collector that any alluvial land, which vests under any law for the time being in force in the State Government, may with due regard to the interests of the public revenue be disposed of, he shall offer the same to the occupant, it any, of the bank or shore on which such alluvial land has formed. in other words, S. 63 gives to the neighbouring Occupant or the occupant of the adjacent land the priority in the matter of purchasing it. Section 64 divides alluvial land into two parts and provides that when alluvial land forms on any bank or shore, the occupant, if any, of such bank or shore shall be entitled to the temporary use thereof unless or until the area of the same exceeds one acre. In other words, if the alluvial land which is formed on any bank or shore is one acre or less, the occupant of the adjacent land is entitled to its temporary use. It is clear from this provision that for such temporary use of such land, no permission from the Government is necessary. The later part of S. 64 provides for a situation where the alluvial land exceeds one acre. It lays down that when it exceeds one acre, it shall be at the disposal of the Collector subject to the provisions of S. 63. In other words, in a case where the alluvial land does not exceed one acre the occupant of the adjacent land is entitled to its temporary use. But when if exceeds one acre, the occupant is not entitled to its temporary use but has only a preferential right to purchase it which the Collector decides to dispose it of. Ss. 63 and 64 of the Bombay Land Revenue Code, therefore, statutorily lay down the rights of the adjacent owners in case of alluvial land. If we come to the conclusion that the suit land is the ,alluvial land, certainly the plaintiffs would be entitled to a declaration of their rights under Ss. 63 and 64 of the Bombay Land Revenue Code and it would not be open to the Collector to deal with or dispose of the ,suit land in any manner otherwise than in accordance with Ss. 63 and 64 of the Bombay Land Revenue Code.

8. No provision has been pointed out to us which lays down how a Bet Bhatha land or dereliction is to be dealt with. In absence of any statutory provision dealing with such kinds of land, it must vest in the State and it will be open to the State to dispose it of in such reasonable manner as it thinks fit. In other words, the rights which the plaintiffs have in regard to alluvial land under Ss. 63 and 64 of the Bombay Land Revenue Code will not be available to them if the land is found to be dereliction or Bet Bhatha land. They will have to stand in queue to purchase it.

9 to 20. x x x x x x

21. Appeal allowed.


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