The State of Bombay Vs. Fakir Umar
Dhanse [1961] INSC 32 (3 February 1961)
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 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.
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 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 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 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
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.
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