Shivpalsing Bhagvatsing Pardeshi vs The Secretary of State for India

Norman Macleod C.J.

The plaintiff tiled this suit asking for a permanent injunction against the defendant, the Secretary of State for India in Council, restraining him from demolishing the shed standing in Survey Number 32, pot No. 3, in the village of Vangaon, Taluka Dahanu, and from forfeiting the said Survey Number 32 and for the refund of the sum of Rs. 100 recovered as fine from the plaintiff by the defendant. The suit was dismissed by the District Judge on July 31, 1922.

It is not necessary for the purpose of this appeal to deal with the history of the case before October 24, 1915, by which date the cattle shed previously erected on the ground by the plaintiff had been demolished. On October 24, 1915, the plaintiff applied to the Collector for permission to erect a shed in the Survey Number for his cattle. In November by an order Exhibit 35 the matter was referred by the Collector to the Assistant Collector. The plaintiff getting no answer to his application and hearing that the matter had been referred to the Assistant Collector made an application Exhibit 49 on December 10, 1915, to that Officer. On December 16, this was sent by the Assistant Collector to the Mamlatdar for report with the following direc- tions "Reply; permission is refused. It should be granted after inquiry. Mamlatdar to report." The plaintiff sought to prove that he had not received that reply to his application as directed by the Assistant Collector, but it is clear that as a matter of fact he did receive it. Hearing nothing further from the Collector, he built a new shed on this plot in Survey Number 32, pot No. 3, before the monsoon. On July 10, 1916, the Assistant Collector passed an order that the plaintiff should be told to demolish his shed and that he should be evicted from the whole of Survey Number 32.

The question really is whether the Collector complied with the provisions of Section 65 of the Bombay Land Revenue Code. Assuming for the moment that the applicant was making an application to use his agricultural land for non-agricultural purposes, the Collector after receiving such an application must first send a written acknowledgment of its receipt, and secondly, may, after due inquiry, either grant or refuse the permission applied for; provided that where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt. of the application. That section clearly lays down the duties of the Collector. When he receives the application he has to inform the applicant that he has received it. He has no further powers there after until due inquiry is made. When due inquiry has been made then he can either grant or refuse permission. But the decision either to grant or to refuse permission must be sent to the ap- plicant within a period of three months to be calculated accord- ing to the terms of the section. In this case the Collector in- stead of merely sending the acknowledgment to the plaintiff that he had received the application, sent a reply that the application was refused. It has been urged that because that reply was sent to the applicant, the applicant could not take advantage of the proviso to the section and was prevented from building until some future date, without any period of limitation, when the Collector should think fit to inform him of his decision. We cannot entertain such a construction of the section. It seems to us that it is clearly laid down that the applicant in such a case should receive the decision of the Collector within three months, that is to say, a proper decision after due inquiry, and that if he does not receive such permission within three months, he will be entitled to be allowed to act as if permission had been grant- ed to build according to the terms of his application. The learned Judge in the Court below has entirely failed to re- cognize that this is the proper construction of the section. He seems to have thought that because the Collector refused the application without due inquiry, that debarred the plaintiff en- tirely from building, even though he did not hear anything further in the matter with regard to the result of the inquiry within the period of three months. There having been no order after due inquiry within three months, the further proceedings of the Collector were defective and must be taken to have been entire- ly beyond his powers. The result must be that the plaintiff is entitled to the reliefs he sought for, and that there must be a decree in terms of prayer (A) of the plaint.

The appellant is entitled to his costs throughout.