Pethabhai Naranbhai Galchar vs State of Gujarat

Mr. R. Subhash Reddy, C.J.—This Letters Patent Appeal under clause-15 of the Letters Patent is directed against the order of the learned single Judge dated 28.7.2016 passed in Special Civil Application No. 18798 of 2014. By the aforesaid order, the learned single Judge has dismissed the petition filed by the appellant herein.

Necessary facts in brief are as under :

2.1. Special Civil Application is filed by the appellant with the prayers mentioned below :

"(A) This Hon''ble Court will be pleased to admit this petition;

(B) This Hon''ble Court will be pleased to issue a writ of mandamus the nature of mandamus or any other appropriate writ, order or direction, to quash and set aside the impugned orders Annexures-F and O to this petition;

(C) This Hon''ble Court will be pleased to issue a writ of mandamus the nature of mandamus or any other appropriate writ, order or direction, declaring the action of the respondent authorities in demolition of the petitioner''s house and fencing the petitioner''s land by respondent authorities pursuant to the communication Annexures-H, I and O and the order Annexure-J passed by the Collector, Gir Somnath, is illegal, null and void;

(D) This Hon''ble Court will be pleased to pass appropriate writ, order or direction, directing the respondent authorities to regularize the petitioner''s possession of the land admeasuring 01 Hectare-20 AREs out of revenue survey no. 117 piki situate in the sim of village Virpur of Talala Taluka on reasonable terms and conditions and as per the Government resolutions and policies;

(E) Pending admission and final disposal of the present petition, this Hon''ble Court will be pleased to issue interim direction, directing the respondent authorities not to disturb the accommodation of the petitioner on the land together with the standing crops on the survey no. 117 paiki admeasuring 01 Hectare - 20 AREs consequent upon Panch Rojkam dated 15.11.2014, in any manner and not to remove the petitioner, his family members or cattle from the said land, in any manner;

(F) That this Hon''ble Court will be pleased to stay the further operation of the impugned orders - Annexures-F and O till and pending hearing and final disposal of this petition;

(G) Be pleased to pass such other and further orders as may be deemed fit and proper."

2.2. The appellant claims that he is in possession of the land admeasuring 1 hectare 20 ARE bearing survey no. 117 paiki situated in the sim of village Virpur, Taluka-Talala. In the petition, it was the case of the appellant-petitioner that he was in longstanding possession of the aforesaid land for more than 40 years and the said land is reserved as govt. forest land and was not useful for cultivation; he has developed the said land and has spent more than Rs.17 Lac to make it cultivable. It is also stated in the aforesaid petition that in the aforesaid land there is one well, two tube-wells for irrigating the land and there are about 275 mango trees; 60 coconut trees; 40 gundi trees; 17 chikoo trees; 25 saragva trees; 10 guava trees; 07 Jambu trees; 05 Karamda trees and 15 nim trees. It was the case of the petitioner that he has spent about Rs. 35 Lac for growing such trees as mentioned above and the remaining land is cultivated for crops of Juwar and Bajra. Precisely, it is the case of the petitioner that as he is not having any other land of his own and in view of his longstanding possession of the land in question, he is entitled for regularization of his possession.

2.3. In the petition, the appellant-petitioner has questioned the order dated 1.1.2014 passed by the respondent no.2-Mamlatdar, in exercise of power under Section 61 of the Bombay Land Revenue Code, 1879 ("the Code" for short) by which he has ordered removal of encroachment made by the appellant-petitioner on the land in question. By the said order, the respondent no.2 has further directed recovery of penalty from the petitioner. The appellant-petitioner had also challenged the order dated 27.11.2014 passed by 6th respondent-Collector, in exercise of power conferred under Section 38 of the Code earmarking the said land for construction of govt. offices and staff quarters.

2.4. 2nd respondent-Mamldatdar, at the first instance issued notice dated 19.11.2013, calling upon the petitioner to show cause as to why action should not be taken under Section 61 of the Code, alleging that he is in illegal encroachment of the land bearing survey no. 117 paikee, admeasuring 1 hectare 20 ARE situated in the sim of village Virpur, Taluka-Talala. The appellant-petitioner submitted reply dated 9th September, 2013, requesting that the said encroachment be regularized as he has incurred huge expenses for development of the said land to make it cultivable. After considering such reply, order dated 1.1.2014 was passed by the 2nd respondent-Mamlatdar, holding that the appellant had made encroachment and had unauthorisedly cultivated the land in question since last more than 25 years and directed the appellant-petitioner to pay penalty as mentioned in the said order and further ordered the removal of encroachment from the land in question.

2.5. Without issuing any further notice to the appellant-petitioner, the respondents took steps for removal of encroachment by conducting panchnama on 15.11.2014. Thereafter, 6th respondent-Collector passed order dated 27.11.2014, earmarking the said land for construction of govt. offices and staff quarters.

2.6. The said petition was resisted by the respondents by filing affidavit in reply. While denying the various allegations made by the petitioner, it was pleaded in the affidavit in reply that though the order of Mamlatdar passed under Section 61 of the Code is appealable under Section 9 of the Gujarat Revenue Tribunal Act and without exhausting remedy of appeal, the appellant-petitioner has approached this Court, as such, the petition deserves to be dismissed in view of availability of efficacious alternative remedy. It was further pleaded that as the said land is needed for construction of govt. offices and staff quarters, the possession of the petitioner on the land in question cannot be regularized. It was also pleaded in the affidavit in reply that the petitioner is not an agriculturist and even as per the Government Resolution dated 8th January, 1980 issued by the government, the encroachment on the lands which are to be used for public purpose cannot be regularized. Reference is also made to the order of the Hon''ble Supreme Court dated 28th January, 2011 passed in Special Leave Petition No. 19879 of 2010 in which directions are issued to the effect that the no regularization of encroachment on the lands which are to be utilized for public purpose can be made.

The learned single Judge, in the judgment dated 28.7.2016 passed in the aforesaid petition, while referring to the judgment of full Bench of this High Court, in the case of Government of Gujarat v. Amraji Motiji Thakor & Anr., reported in 1991 (2) GLH 606, has held that Section 61 of the Bombay Land Revenue Code confers power of summary eviction on the Collector and principles of natural justice are required to be followed before passing the order of summary eviction. However, principles of natural justice are not to be followed under Section 202 of the Code except in the case of resistance or obstruction while taking possession of the land. The learned single Judge, while holding that the petitioner is already given opportunity under Section 61 of the Code, has observed that admittedly there is no resistance or obstruction caused by the appellant-petitioner herein, as such, no further enquiry is necessary. While holding so, the learned single Judge has dismissed the petition.

In this appeal, learned counsel Mr. P.S. Champaneri, appearing on behalf of the appellant mainly contended that as per the Government Resolution dated 8th January, 1980, the appellant herein is entitled for regularization of the possession of the land. It is submitted that the appellant is a landless person and except the land that he has developed, he has no other land to cultivate. It is further submitted that the appellant has been in continuous and uninterrupted possession of the land for the last 40 years and in view of the same, in stead of considering the same for regularization as per the Government Resolution dated 8th January, 1980, respondents have taken steps for eviction. It is further submitted that after the orders are passed under Section 61 of the Code, without resorting to the procedure as contemplated under Section 202 of the Code, the respondents have illegally and arbitrarily demolished the house of the appellant-petitioner and taken possession of the part thereof. He has submitted that as such, as the possession of the land required to the extent of construction of Mamlatdar office is already taken, the respondents be directed to consider the claim of the petitioner for regularization of the possession of the remaining land wherein, fruit-bearing trees are standing. It is also the contention of the learned counsel for the appellant that Section 61 of the Code empowers the authority to record a finding of encroachment, but for actual eviction from the land in question, procedure as contemplated is to be followed. Learned counsel placed reliance on the very same judgment of the full Bench of this Court in the case of Government of Gujarat v. Amraji Motiji Thakor & Anr., reported in 1991 (2) GLH 606.

On the other hand, learned Assistant Government Pleader Mr. V.R. Jani, appearing on behalf of respondent no.1 submitted that it is not in dispute that the land belongs to the government and the appellant has made encroachment in the land in question and has unauthorisedly grown trees therein. It is submitted that as the said land is required for construction of govt. offices and staff quarters, the encroachment cannot be regularized. It is further submitted that as in view of the findings recorded in the order dated 1.1.2014, possession was taken over by conducting panchnama on 15.11.2014 and thereafter, the 6th respondent-Collector passed an order on 27.11.2014 earmarking the land in question for construction of govt. offices and staff quarters. It is contended by the learned Assistant Government Pleader that in view of the power conferred under Section 61 of the Code, the respondents can take possession of the encroached land without any further notice of opportunity under Section 202 of the Code.

Before we proceed further, we deem it appropriate to extract the provisions of Sections 61 and 202 of the Bombay Land Revenue Code, which are as under :-

"61. Penalties for unauthorized occupation of land.- Any person who shall unauthorisedly enter upon occupation of any land set apart for any special purpose, or any unoccupied land which has not been alienated, and any person who uses or occupies any such land to the use or occupation of which by reason or any of the provisions of this Act he is not entitled or has ceased to be entitled shall,

if the land which he unauthorisedly occupies forms part of an assessed survey number, pay the assessment of the entire number for the whole period of his unauthorized occupation, and

if the land so occupied by him has not been assessed, such amount of assessment as would be leviable for the said period in the same village on the same extent of similar land used for the same purpose; and shall also be liable, at the discretion of Collector, to a fine not exceeding one per cent of the prevalent annual statement of rate (Jantri) as may be notified by the State Government from time to time, if he has taken up the land for purposes of cultivation, and not exceeding such limit as may be fixed in rules made in this behalf under section 214, if he has used it for any non-agricultural purpose.

The Collector''s decision as to the amount of assessment payable for the land unauthorisedly occupied shall be conclusive, and in determining its amount occupation for a portion of year shall be counted as for a whole year.

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.

Forfeitures under this section shall be adjudged by the Collector, and any property so forfeited shall be disposed of as the Collector may direct and the cost of the removal of any encroachment under this section shall be recoverable as an arrear of land revenue."

xxx xxx xxx

Collector how to proceed in order to evict any person wrongfully in possession of land.- 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, and,

if such notice is not obeyed by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and,

if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just case, and that such resistance and obstruction still continue, may, without prejudice to any proceedings to which such person may be liable under any law for the time being in force for the punishment of such resistance or obstruction, issue a warrant for the arrest of the said person, and on his appearance commit him to close custody in the office of the Collector or of any Mamlatdar or Mahalkari, or send him with a warrant, in the form of Schedule 1, for imprisonment in the civil jail of the district for such period not exceeding thirty days, as may be necessary to prevent the continuance of such obstruction or resistance."

In the judgment in the case of Government of Gujarat v. Amraji Motiji Thakor & Anr., reported in 1991 (2) GLH 606, full Bench of this Court has answered the references as under :-

"(1) A notice under Section 202 of the Bombay Land Revenue Code does not in itself account to a decision or order of eviction of a person wrongfully in possession of land; but is only a mode of enforcement of such decision or order recorded under the substantive provisions of the Code or any other Act for the time being in force conferring power on the Collector to evict such person.

(2) In view of the above conclusion, the question of application of principles of natural justice at the stage of issuing notice under Section 202 does not arise. It is made clear, however, that the principles of natural justice would be applicable at the stage of recording the decision or order to evict in case of exercise of power by the Collector under Section 61 or 79A of the Code which are some of the substantive provisions in the Code conferring such power on the Collector.

(3) The summary enquiry contemplated by the latter part of Section 202 is not meant for reaching or recording a decision or order of eviction. It applies to the contingency of resistance or obstruction in taking possession of land, in the course of enforcement of a decision or order to evict made under some provision of the code such as Section 61 or 79A or any other Act for the time being in force empowering the Collector to evict a person wrongfully in possession of land."

7.1. From the aforesaid answers on the reference made by the full Bench of this Court, it is clear that a notice under Section 202 of the Bombay Land Revenue Code itself does not amount to a decision or order of eviction to evict a person wrongfully in possession of land, but is only a mode of enforcing such decision or order recorded by the authority to evict such person. Bare reading of the provision under Section 202 of the Code also makes it clear that it prescribes the method and manner in which eviction shall be made. As held by the full Bench of this Court, there is no adjudicatory mechanism for eviction under Section 202 of the Code, but at the same time, if finding of encroachment is recorded to evict a person who is in unauthorized possession, under Section 61 of the Code or Section 79A(a) of the Code, necessary procedure is to be followed for eviction under Section 202 of the Code. The question of obstruction or resistance will arise only after issuance of notice for eviction as contemplated under Section 202 of the Code. If such person in unauthorized possession does not vacate the land on his own, steps are to be taken for unauthorized possession and only at that stage question of resistance or obstruction will arise. In case on hand, no steps have been taken by issuing notice as per the method and manner prescribed under Section 202 of the Code. In the absence of any notice under Section 202 of the Code, no steps can be taken for taking possession by directly conducting panchnama based on the order passed in exercise of power under Section 61 or Section 79A(a) of the Code.

At the same time, as the appellant-petitioner was given ample opportunity before passing the order dated 1.1.2014 by the competent authority in exercise of power under Section 61 of the Code, we do not find any illegality or infirmity in such order by declaring the appellant herein as encroacher. As the respondents have not taken any steps under Section 202 of the Code, we allow this Letters Patent Appeal in part by issuing the following directions.

(i) The Letters Patent Appeal is allowed in part.

(ii) Order dated 1.1.2014 passed by respondent no.2-Mamlatdar, holding that the appellant had made encroachment on the land in question and for collecting penalty is not interfered with.

(iii) It is open to the respondents to take possession of the land in question by following the procedure as contemplated under Section 202 of the Bombay Land Revenue Code, 1879.

(iv) If there is any resistance or obstruction, it is open to the competent authority to conduct summary enquiry and take further steps as contemplated under Section 202 of the Code.

(v) Order dated 15.11.2014 passed by respondent no.6-Collector shall not given effect to until possession of the land is taken by following the procedure contemplated under Section 202 of the Code.

Since the main appeal is disposed of, the connected Civil Application does not survive and the same is disposed of.