S. A. SHAH, J. ( 1 ) BOTH these petitions have been filed by one Vasudev Sakarabhai Modi against the same respondents challenging the order dated 31 (Annexure A to the petition) of the City Deputy Collector Ahmedabad Order dated 31-1-1977 (Annexure B) of the District Collector Ahmedabad and order dated 12-12-1977 (Annexure C) of the Special Secretary. Revenue Department Ahmedabad passed separately in each case. Since the questions involved in both these petitions being identical they are being disposed of by this common judgment. ( 2 ) THE petitioner is the occupant of City Survey Nos. 295 501 496 498 1500 and 1591 situated in Wadaj Ward of Ahmedabad City. The petitioner was given show cause notice dated 28-5-1976 so far as Special Civil Application No. 1288 of 1978 is concerned and show-cause notice dated 27-11-1975 so far as Special Civil Application No. 1289 of 1978 is concerned by the authority for the use of Survey No. 591 and Survey Nos. 495 501 496 498 and 500 respectively by constructing Kutcha hutments without permission. It is alleged that by using the said survey numbers for non-agricultural purpose. the petitioner has contravened the provisions of sec. 66 of the Bombay Land Revenue Code 1879 (hereinafter referred to as the Code) and rule 100 of the Bombay Land Revenue Rules (hereinafter referred to as the Rules ). The petitioner in reply to the said show-cause notices stated that he has not committed any contravention and that the said hutments of the lands in question were constructed by the trespassers against who he has taken action and there were litigations amongst the co-owners and in consequence of the said litigations earlier Receiver was appointed and thereafter Court Commissioner was appointed. The petitioner has. therefore denied his liability for any contraven tion or penalty. ( 3 ) BOTH the cases were heard by the City Deputy Collector Ahmedabad. who has reproduced the contentions of the petitioner and observed that litigations amongst the brothers appointment of Receiver by the High Court and thereafter appointment of Commissioner by the City Civil Court and the ignorance of the petitioner as to who had constructed these hutments cannot be considered to be the legitimate grounds. The petitioners no objection if the said hutments are removed was also not considered to be a good ground. The petitioners no objection if the said hutments are removed was also not considered to be a good ground. The City Deputy Collector relied upon the ground that the petitioner had not obtained No Objection Certificate from the Municipal Corporation of the City of Ahmedabad and no permission could be granted in absence of such certificate. He therefore straightway passed an order under sec. 66 of the Code read with rule 100 of the Rules and ordered (by Annexure A dated 31-7-1976) to recover from the petitioner for the years 1971-72 to 1975-76 by way of fine 40 times the amount at the rate of 12 paise per sq. metre for each year plus Rs. 36. 50 paise as surcharge for 1 821 sq. mts. and local cess tax etc. ( 4 ) THE petitioner filed appeal before the Collector Ahmedabad and the Collector has observed that on referring to the papers. it appears that there were about 40 Kutcha hutments and the contention of the petitioner that the land belonged to H. U. F. and that the petitioner was not responsible or liable for unauthorised construction was not legitimate because the revenue record bears the name of the petitioner amongst the occupants. He has further observed that the occupant is legally responsible for the unauthorised construction done by any body. He however. while confirming the order of the City Deputy Collector thought it fit to reduce the amount of fine from 40 times the assessment (imposed by the City Deputy Collector) to 20 times the assessment. The said order dated 31-1-1977 of the District Collector is Annexure B. ( 5 ) THE petitioner thereafter filed a revision application before the Special Secretary Revenue Department Government of Gujarat Ahmedabad who by his order dated 12-12-1977 (Annexure C) came to the conclusion that for unauthorised construction the petitioner was responsible. He therefore held hat the petitioner was liable to fine also. Since these hutments were constructed by some third parties and considering that the liability of the petitioner was technical he reduced the amount of fine from 20 times the assessment to 10 times the assessment. ( 6 ) FROM the aforesaid three decisions of the authorities below it is evident that all the revenue authorities in interpretation of sec. Since these hutments were constructed by some third parties and considering that the liability of the petitioner was technical he reduced the amount of fine from 20 times the assessment to 10 times the assessment. ( 6 ) FROM the aforesaid three decisions of the authorities below it is evident that all the revenue authorities in interpretation of sec. 66 of the Code came to the conclusion that the petitioner is responsible for non-agricultural use of the land without permission and even in case such non-agricultural use is made by a third party who trespassed and entered without express or implied consent of the occupant i. e. against the consent and interest of the occupant the occu pant (petitioner) is liable. ( 7 ) THE authorities below have not tried to construe sec. 66 of the Code but have tried to justify their findings by logical analysis of the provisions. They have also not considered the fact that under the provisions of sec. 79-A of the Code trespassers were all those liable to be evicted from the land by the Collector near have they considered the fact that there were litigations and that on account of the appointment of Receiver and Commissioner the trespassers took advantage of the situation and entered into the open land and started using it for residential purposes which on the very face of it was both against the interest and consent of the petitioner. In fact the petitioner has in terms stated that if these persons are evicted he has no objection at all. ( 8 ) I shall now consider the scheme of sec. 66 of the Code and whether the revenue authority has jurisdiction to impose penalty for unauthorised use of the land by trespassers without the consent or connivance of the petitioner occupant whether such powers can be inferred from the provisions of sec. 66 of the Code. ( 9 ) BEFORE I advert to sec. 66 of the Code it would be worthwhile to refer to sec. 48 of the Code which provides the manner of assessment and alteration of assessment of the land. As per this section. the land revenue leviable on any land under the provisions of the Code will be based upon assessment in accordance with the use of the land. 66 of the Code it would be worthwhile to refer to sec. 48 of the Code which provides the manner of assessment and alteration of assessment of the land. As per this section. the land revenue leviable on any land under the provisions of the Code will be based upon assessment in accordance with the use of the land. In other words if the land is used for the agricultural purpose it will be assessed at different rates than the land which is used for building purposes or for any other purpose. The assessment therefore varies with the use of the land. ( 10 ) SEC. 65 of the Code provides that if any occupant is holding the land for the purpose of agriculture he is entitled to use it by himself through his servants tenants agents or other legal representatives and has a right to erect farm buildings construct wells or tanks make any other improvements there on for the better cultivation of the land or its more convenient use for the purpose aforesaid. The law therefore permits an occupant to use the land by himself or through other persons who may be either his servants tenants agents or other legal representatives. But if the occupant wishes to use the land for any other purpose permission of the Collector must be obtained. The Collector may grant such permission when applied provided that such application is made If 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. Under the scheme of the Code therefore land can be used for other purposes only when permission is granted or deemed to be granted as stated above. ( 11 ) SEC. 66 of the Code has been amended from time to time. I will reproduce the said section as it was in force at the dale when the notices were issued for the proposed action. I will also consider the subsequent amendments which do not have any effect so far as imposition of line is concerned. Sec. 66 of the Code as it stood prior to amendment by Act no. 26 of 1976 read as under:"66 If any such land be so used without the permission of the Collector being first obtained or before the expire of the period prescribed by sec. Sec. 66 of the Code as it stood prior to amendment by Act no. 26 of 1976 read as under:"66 If any such land be so used without the permission of the Collector being first obtained or before the expire of the period prescribed by sec. 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 shah also be liable to pay in addition to the new assessment which may be leviable under the provisions of sec. 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 of any occupant or any other person holding under or through an occupant who shall without the occupants consent use any much 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". Before I construe sec. 66 of the Code. it will also be necessary to reproduce the first part of sec. 79a of the Code which reads:summary 79. A. Any person unauthorisedly occupying or wrongfully in eviction of possession of any land person unauthorisedly occupying land. (A) to the use or occupation of which by reason of any of the provisions of this Act he is not entitled or has ceased to be entitled or (B) xxx xx ** may be summarily evicted by the Collector. AS seen in sec. 65 of the Code. the occupant of land assessed for agricultural purposes is entitled by himself his servants tenants agents or other legal representatives to use the land but it does not provide the use of the land by a trespasser. The opening part of sec. 66 of the Code no doubt states that if any such land be so used without the permission of the Collector being first obtained. . i. e. it refers only to the use of the land but does not say about the use by which category. Therefore as secs. The opening part of sec. 66 of the Code no doubt states that if any such land be so used without the permission of the Collector being first obtained. . i. e. it refers only to the use of the land but does not say about the use by which category. Therefore as secs. 65 and 66 of the Code are the part op the same scheme it is necessary to read that if any such use of the land is made by an occupant his servants tenants agents or other legal representatives. . Sec. 66 of the Code further provides for the consequences i. e. the occupant and any tenant or other person holding under or through him shall be liable to the summarily evicted by the Collector from the land so used. The expression so used must necessarily take its colour from the previous part of the section meaning thereby the occupant or any tenant or other person holding under or through him (occupant) who has made such use will be liable to be evicted. 6if a trespasser is included for such contravention then this category also ought to have been mentioned. Another consequence is the occupant shall also be liable to pay in addition to the new assessment which may be livable under the provisions of sec. 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. Here the liability to pay fine is imposed upon the occupant only. But again before such liability is imposed it is mentioned that the land must be so used i. e. used by the occupant or any tenant or other person holding under or through the occupant. The second part of sec. 66 of the Code is also suggestive of such interpretation because when contravention is committed by other persons then the occupant is given right to recover damages. It further provides that such tenant of any occupant or any other person holding under or through an occupant uses such land even without the consent of the occupant the occupant shall be liable to aforesaid penalty but they shall be responsible to the said occupant in damages. ( 12 ) READING the Scheme of the entire sec. It further provides that such tenant of any occupant or any other person holding under or through an occupant uses such land even without the consent of the occupant the occupant shall be liable to aforesaid penalty but they shall be responsible to the said occupant in damages. ( 12 ) READING the Scheme of the entire sec. 66 of the Code in my opinion it appeals that the occupant is primarily liable for unauthorised use of the land by himself or by his tenant or the person holding under or through him. The Collector is also given power for summarily evicting such person or persons. is section nowhere creates any liability on the occupant for the act of a trespasser. Though this section is not happily worded the same shall have to be construed in the manner which promotes justice and not in the manner by which an innocent party wile be subjected to heavy penalty and loss of property. if this section is construed in the manner in which it is construed by the revenue authorities it will invest power with the Collector to evict an occupant from his own land for the acts of a trespasser for which he himself is deeply aggrieved. Such can never be the intention of the Legislature and the Legislature has nowhere by positive words provided that an occupant will also be responsible for the acts of a trespasser Sec. 79-A of the Code also expressly provides that any person who is unauthorisedly occupying or wrongfully in possession of any land may be summarily evicted by the Collector. In the instant case the Collector instead of evicting such persons summarily has allowed them to retain the land making the petitioner liable not only for non-agricultural assessment conversion charges but also for penalty to the extent of 10 times the assessment In my opinion such an order passed by the revenue authority shocks the conscience of the Court. The penalty imposed upon a person whose property was placed under the management of the Receiver and thereafter under the management of the Court Commissioner and if during such management number of trespassers enter into the land and start making non-agricultural use by constructing hutments thereon instead of taking steps to evict those persons either by the Receiver Commissioner or the Collector himself who is empowered under sec. 79-A of the Code to do so notice for penalty is issued and penalty 10 times the assessment is actually imposed is something which cannot be permitted in a civilised society there the rule of law prevails. If such a construction is placed upon the provisions of the law the same may be subjected to challenge under Article 14 of the Constitution. ( 13 ) I therefore hold that the revenue authorities have committed an error of law apparent on the face of the record and have exercised their jurisdiction and powers not vested in them under sec. 66 of the Code. The Revenue authorities on misinterpretation of section 66 of the Code assumed the powers and even though they have reached to the conclusion that it was a technical offence penalty of 10 times the assessment payable by the occupant petitioner is imposed. ( 14 ) IN the result therefore the petitions are allowed. The impugned orders dated 31-7-1976 (Annex. A) dated 31-1-1977 (Annexure B) and dated 12-12-1977 (Annexure C) of the City Deputy Collector Ahmedabad. Ahmedabad District Collector and the Special Secretary to Government of Gujarat Revenue Department Ahmedabad respectively are hereby quashed and set aside. Rule issued in each of these petitions is made absolute which costs .