Aher Naran Vijanand vs State of Gujarat and Another

S.B. Majmudar, J.—In this petition under Article 227 of the Constitution which is wrongly styled as one under Article 226 thereof, the petitioner has brought in challenge the order passed by the Special Secretary, Revenue Department dismissing the revision application and confirming the order passed by the Mamlatdar, Veraval in encroachment case No. 264/76-77. These proceedings were initiated by the Mamlatdar against the petitioner on the ground that he committed encroachment on a part of Government land being S. No. 545 of village Udafa in Veraval Taluka. The petitioner''s contention is that this land was not encroached upon but was given to his father in exchange for part of S. No. 259/1 which belonged to him which was acquired for the purpose of road. Both the Courts below have taken the view that no relevant evidence was pointed out by the petitioner to show that there was any such exchange and consequently, the petitioner was found to have encroached upon the Government land. Hence, order was passed u/s 61 of the Bombay Land Revenue Code for removal of the said encroachment.

Mr. Patel for the petitioner vehemently submitted that proceedings u/s 61 were misconceived and without jurisdiction and submitted that when the petitioner''s case is that the land occupied by him was not Govt. property but was allotted to his ancestrals in exchange of land S. No. 259/1, such contention had to be examined by initiating proceedings u/s 37(2) of the Land Revenue Code as the petitioner was claiming title to this land. This is not a case of pure encroachment where the alleged encroached was not claiming title in himself and the title in Govt. land was admitted. Consequently, the proceedings u/s 61 were totally misconceived.

There is considerable substance in these contentions. I called upon the learned Asstt. Government Pleader who appeared for the respondents to point out whether the petitioner had put forward title to this land or not. He fairly stated that it was so. However, he stated that both the Courts have concurrently found that the petitioner had encroached upon the Govt. land and therefore, the order u/s 61 was rightly passed. This submission cannot be accepted for the simple reason that in proceedings u/s 61, title to Govt. property cannot be in dispute and if alleged encroacher alleges that he is not an encroacher, question can be examined in proceedings u/s 61. But in the present case, when admittedly, the petitioner had put forward a case of his ownership on this alleged encroached land, the question land belonged to the petitioner or to the Government would directly arise for consideration. Such a dispute has be resolved not in proceedings u/s 61, but in proceedings u/s 37(2) of the Code. Consequently, on the facts of this case and on the contentions of the petitioners, proceedings u/s 61 are found to be totally misconceived and without jurisdiction.

On this short ground, the impugned orders at Annexures "D" and "E" passed by the Mamlatdar and as confirmed by the Special Secretary, Revenue Department are quashed and set aside. It would be open to the Mamlatdar to initiate proceedings u/s 37(2) and to decide, after giving an opportunity to the contesting parties to lead evidence, as to whether the alleged encroached portion of the land belongs to the petitioner or belongs to the Government and then pass appropriate order in accordance with law. Rule is accordingly made absolute with no order as to cost. Ad-interim relief granted earlier will stand vacated.