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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: FAKIR UMAR DHANSE.

DATE OF JUDGMENT: 03/02/1961

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SHAH, J.C.

CITATION:  1961 AIR  722            1961 SCR  (3) 747

ACT: Unalienable agricultural land--Occupant--If could alter  the user     to     non-agricultural      purposes--Unauthorised structures--Nature  of  right  of  Revenue  Authorities   to evict--Words  " eviction " and " Vacation"’ meaning  of--The Bombay Land Revenue Code, 1879 (V of 1879), s. 66.

HEADNOTE: The  respondent who was the occupant of an unalienated  land had  erected several structures on it without obtaining  the prior  permission of the Collector and became liable  to  be evicted.   The Collector served a notice of eviction on  the respondent  under s. 66 of the Bombay Land Revenue Code  and called  upon him to remove the unauthorised structures.   On the  respondent not having complied with the notice, he  was evicted  from  the  land  and some  of  the  buildings  were demolished. The High Court held that the order directing the removal  of the  structures was ultra vires of s. 66 of the Bombay  Land Revenue Code and though the order of eviction was legal  and intra  vires but in spite of the eviction, the land  or  the buildings  did not vest in the Government and  the  occupant continued  to be the owner of the building and the land  and the only consequence of eviction was physical removal of the occupant from the land. The  question was whether the occupier who had been  evicted as required to remove the building and in default could  the collector demolish the building and was liable to damage for such demolition. Held,  that on a true construction of ss. 65 and 66  of  the Bombay  Land Revenue Code an occupant was only  entitled  to the  use and occupation of unalienated land for the  purpose of  agriculture,  and  could  not alter  the  user  to  non- agricultural  purposes  except with the  permission  of  the Revenue Authorities, and any such altered user entitled  the Revenue Authorities to summarily evict the occupant from the land and once evicted the right of user and occupation could not be exercised by him. The  words " eviction " and " vacation " did not  mean  mere physical removal of the occupant, they meant that his rights came  to  an end.  For the purpose of " vacation  "  it  was necessary  that  any unauthorised construction put  up  must

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also  be removed, and no specific powers were necessary  for such  removal, the ,power to remove them was incidental  and ancillary  to  the  powers  to evict and  to  get  the  land vacated. The  true  effect of eviction was physical  removal  of  the occupant  from  the  land with all  the  consequences,  i.e. demolitione of all unauthorised superstructure, 96 748 The  word  " eviction " as used in s. 66 of the  Code  meant that  on eviction, land had to be restored to  the  original position  so as to be used for the purpose for which it  was ’given to the occupant.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 377 of 1957. Appeal  from  the judgment and decree  dated  September  24, 1954,  of the Bombay High Court in First Appeal No.  355  of 1950. R.  Ganapathy  Iyer,  K.  L. Hathi and  D.  Gupta,  for  the appellant. B. D. Sharma, for the respondent. 1961.   February 3. The Judgment of the Court was  delivered by KAPUR, J.-This is an appeal against the judgment and  decree of  the High Court of Judicature at Bombay.   The  appellant was  the defendant in a suit brought by the  respondent  who was  the plaintiff and the facts giving rise to  the  appeal are these: The respondent was the occupant of unalienated land,  Survey No. 145, Hissa No. 2 of Mahad in the district of Colaba.  He applied on November 1, 1941, to the Collector for permission to  construct  a temporary shed for one year  on  the  above mentioned  land  and permission was granted  on  January  9, 1942.  The respondent made another application for extension of the period of the permission by two years.  On enquiry it was  found  that the respondent  had  constructed  permanent structures without leaving an open space of 20 feet  between the road and the building and when asked to leave this space open he refused to do so and therefore the application dated September9,1942,was   dismissed.    On   March28,1943,   the respondent  made  another application stating that,  he  was prepared to remove the building which was within 20 feet  of the road.  The Collector accepted this request and asked the respondent to remove that portion of the building which  was within 20 feet from the road.  While the correspondence  was going  on  between  the respondent and  the  Collector,  the respondent put up several structures which, for some reason 749 or  another, the Collector knew nothing about and it was  in March,  1947, that the Collector asked the 5  respondent  to stop  further building.  On April 21, 1947,  the  respondent made  another application to the Collector stating  that  he had  begun  to  construct another  building  and  asked  for permission  to complete it. It was then that  the  Collector made  an inquiry and found that several buildings  had  been constructed   deliberately  without  any  permission.    The Collector  then  asked the permission of the  Government  to take   further  action  and  on  September  23,  1947,   the Government  accorded  sanction in pursuance  of  which  the, Collector  directed the Mamlatdar to evict  the  respondent. On October 19, 1947, the Mamlatdar served a notice upon  the respondent  for  evicting  him.   The  respondent  thereupon

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appealed  to the Bombay Revenue Tribunal and his appeal  was dismissed  on April 2, 1941.  Another notice was  served  on the  respondent calling upon him to remove the  unauthorised structures.   As he did not comply with the notice,  he  was evicted  from  the  land  and some  of  the  buildings  were demolished. The respondent in August, 1948, filed a petition in the High Court  and  obtained an order of stay of the  order  of  the Government   and  in  execution  of  that   order   obtained possession  of  the  land and then  did  not  prosecute  his petition.   Thus in spite of his having flouted  the  orders made  by the Revenue authorities, the respondent managed  to get  the  possession  of the land from  which  he  had  been evicted.  On November 23, 1948, the respondent filed a  suit for  declaration  that the order passed  by  the  Government directing  his  eviction  was  illegal  and  void  and   for injunction restraining the Government from taking any action pursuant  to  that order and for recovery of  Rs.  7,000  as damages  for the portion of the building demolished  by  the Revenue   authorities.   The  Civil  Judge  held  that   the buildings  erected were unauthorised as the  respondent  had not  obtained  the permission of the Collector but  he  held that  the Collector had no power under s. 66 of  the  Bombay Land Revenue Code (hereinafter termed the Code) to  demolish the building.  He 750 decreed the suit in regard to the eviction holding the order of  the Government and by the Collector as ultra  wires  and inoperative and issued an injunction against  the  appellant and  also  decreed  the suit for Rs. 7,000  as  damages  for demolition  of the structures.  The appellant then  took  an appeal  to  the High Court and it was there  held  that  the orders directing removal of structures was ultra vires of s. 66 of the Code and the injunction was therefore confirmed as also the decree as to the award of damages.  The High  Court further held that the order of eviction was legal and  intra vires  but  in  spite  of the  eviction,  the  land  or  the buildings  did not vest in the Government and  the  occupant continued to be the owner of the buildings and the land  and the only consequence of eviction was the physical removal of the  occupant from the land.  To put it in  the  language’of the High Court it was held:-               ",   The   legal  consequences   of   eviction               therefore  will be to deprive the occupant  of               his  possession  of the land but  not  of  his               ownership  or proprietary rights,  which  will               continue  to vest in him.  As a  corollary  it               must  follow that the building erected by  the               occupant  on  the land will also  continue  to               belong  to  him.  We are also of  the  opinion               that the power given to the Collector to evict               the  occupant  does not include the  power  to               remove a building erected by him."               It  is against this judgment and  decree  that               the appellant has come in appeal to this Court               on a certificate of fitness by the High Court. There  is  no  dispute in this appeal as  to  the  order  of eviction.    The   question  which  was  debated   was   the consequences of this eviction.  Was the respondent  required to  remove  the building and in default  can  the  appellant demolish  the  building and (2) is the appellant  liable  to damages  for  the  demolition of the portion  which  it  had already   demolished   ?   This  would   depend   upon   the interpretation  to be put on some of the provisions  of  the Code.   The Collector, after getting the permission  of  the

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Government  directed, by his order dated October  10,  1947, the removal of 751 the structures unauthorisedly erected by the respondent  and the  action purported to have been taken under a. 66 of  the Code.  Section 45 of the Code provides that all land whether used  for  purposes  of agriculture or  other  purposes  and wherever  situated is liable to payment of land  revenue  to Government and under s. 56 failure to pay land revenue makes the  occupancy liable to forfeiture.  Sections 65 and 66  of the Code provide:               S.....65.  " An occupant of land  assessed  or               held   for  the  purpose  of  agriculture   is               entitled  by himself, his  servants,  tenants,               agents or other legal representatives to erect               farm  buildings, construct wells or  tanks  or               make  any other improvements thereon  for  the               better  cultivation  of the land or  its  more               convenient use for the purpose aforesaid.               But if any occupant wishes to use his  holding               or any part thereof for any other purpose, the               Collector’s  permission  shall  in  the  first               place     be     applied    for     by     the               occupant.........................................               S.....66.  "  If  any such  land  be  so  used               without the permission of the Collector  being               first obtained or before the expiration of the               period  prescribed by section 65 the  occupant               and  any tenant or other person holding  under               or through him shall be liable to be summarily               evicted by the Collector from the land so used               and from the entire field or survey number  of               which  it  may form a part  and  the  occupant               shall  also be liable to pay, in  addition  to               the new assessment which may be leviable under               the  provisions of section 48 for  the  period               during  which the said land has been  so  used               such fine as the Collector may subject to  the               general orders of the State Government direct.               Any tenant or any occupant or any other person               holding under or through an occupant who shall               without  the occupant’s consent use  any  such               land  for any such purpose and thereby  render               the  said  occupant liable  to  the  penalties               aforesaid,  shall be responsible to  the  said               occupant in damages." It  has  been  found that  the  respondent  erected  several structures without obtaining the prior permission of 752 the Collector and he was liable to be evicted, and therefore the order passed by the Collector directing the eviction  of the  respondent was legal and intra vires. ,Under s.  65  an occupant  of  land held for the purpose of  agriculture  may erect farm buildings construct wells or tanks or make  other improvements  for the better cultivation of the land or  for its  more convenient use for the purpose of agriculture  but he cannot alter the user to non-agricultural purposes except with the permission of the Revenue authorities.  This  shows that  any user unconnected with agriculture is unlawful  and under  s.  66 therefore any such altered user  entities  the Revenue authorities to summarily evict the occupant from the land and certain other consequences follow.  Therefore on  a true  construction  of  ss. 65 and 66 an  occupant  is  only entitled  to  the  use and occupation  of  unalienated  land subject to the limitation above mentioned and if he is  once

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evicted under the provisions of s. 66 of the Code the  right of user and occupation cannot be exercised by him. Section 202 of the Code lays down the procedure for evicting any person unlawfully in possession of the land and provides as follows:               S.....202.  " Whenever it is provided by this,               or  by  any other Act for the  time  being  in               force,  that the Collector may or shall  evict               any  person wrongfully in possession of  land,               such  eviction shall be made in the  following               manner, VIZ.               by  serving a notice on the person or  persons               in possession requiring them within such  time               as may appear reasonable after receipt of  the               said notice to vacate the land,                ........................... This section therefore shows that eviction requires vacation of  the land and vacation does not mean that  anything  done upon  the  land which was unauthorised is to be  allowed  to remain  and  only  the  person  responsible  for  doing  the unlawful act is to be removed from the land.  That the words "  eviction  " and " vacation " do not  mean  mere  physical removal of the occupant is clear from the very nature of the right which the respondent in the present case had his right was 753 confined  to  the  use and occupation of the  land  for  the purpose  for  which he held it from  Government,  i.e.,  for agricultural purposes and when he is evicted and is asked to vacate  the  land, it must mean that his rights come  to  an end.   For the purpose of vacation it is necessary that  any unauthorised  construction  put  up  must  also  be  removed otherwise  there cannot be any vacation of the land nor  can the  land be put to effective use for the purpose for  which agricultural lands are normally accepted to be used.  It  is not necessary to hold in this case as to whether on eviction the  occupant also loses his right to the materials  of  the superstructure but it would be a in is interpretation of the words  " eviction " and " vacation " of the land if it  were held  that although the occupant is evicted  the  structures erected by him cannot be removed and if the Government tries to restore the land to the original purpose for which it was granted then it will do so only on the pain of being mulcted in  damages.  It is, in our opinion, not necessary  to  have any  specific  power  to  have  the  land  vacated  of   all unauthorised  superstructures; the power to remove  them  is incidental  and ancillary to the power to evict and  to  get the  land vacated.  It appears to us that the nature of  the right of occupancy and the limitation placed upon it by  the provisions  of the Code contained in ss. 40 and 41 by  which the  right to certain trees on unalienated land is  reserved to the State; in ss. 65 and 66 which have been quoted  above and ss. 68 and 69 which provide that an occupant is entitled to  the  use and occupation of the land for  the  period  to which  his tenure is limited shows that the true  effect  of eviction  is the physical removal of the occupant  from  the land  with  all the consequences, i.e.,  demolition  of  all unauthorised  superstructures.  The High Court  relied  upon the difference in the language used in ss. 61 and 66 of  the Code and to the amendment made in the former section in 1919 by  which the words " or to summary removal " were added  in s.  61 and the relevant portion of the section now reads  as under;- 754               S.....61.   "   The   person    unauthorisedly

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             occupying  any  such  land  may  be  summarily               evicted by the Collector, and any crop  raised               in the land shall be liable to forfeiture, and               any  building, or other  construction  erected               thereon  shall  also, if not  removed  by  him               after such written notice as the Collector may               deem reasonable, be liable to forfeiture or to               summary removal." From the addition of these words it was sought to be  argued that  these words were added to authorise the  Collector  to remove  any  building or other construction put up  on  that land  by  a  person in unauthorised occupation  and  it  was argued  that  those words were specifically  added  for  the purpose.   It  is wholly unnecessary for us to go  into  the question  as to why that particular power was given  to  the Collector.   In this case we are concerned with the  meaning of the word " eviction " as used in s. 66 and in our opinion the  meaning of those words is that on eviction land has  to be  restored to the original position so as to be  used  for the purpose for which it was given to the occupant. For  the reasons given above this appeal is allowed and  the decree  of the High Court affirming that of the trial  court is set aside.  The appellant will have its costs throughout.                                          Appeal allowed.