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Gujarat High Court · body

2016 DIGILAW 1536 (GUJ)

Pethabhai Naranbhai Galchar v. State of Gujarat

2016-07-28

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. The petition has come up for consideration along with the Civil Application filed by the respondent- State Authorities seeking vacation of interim relief granted by the Court vide order dated 24.12.2014. With the consent of learned Advocates for the parties, the main petition was heard finally and is being decided hereunder. 2. The petitioner by way of present petition filed under Article 226 of the Constitution of India has challenged the legality and validity of the impugned order dated 01.01.2014 passed by the Respondent No. 2 Mamlatdar (Annexure-F) under section 61 of the Bombay Land Revenue Code (hereinafter referred to as 'the said Code' for short) directing to remove encroachment made by the petitioner from the land in question and further directing recovery of penalty from the petitioner. The petitioner has also challenged the order dated 27.11.2014 passed by the Respondent No. 6-Collector (Annexure-O) earmarking the land for the constructions of government offices and staff quarters in exercise of powers conferred under section 38 of the said Code. 3. The brief facts giving rise to the present petition are as under: 4. The respondent No. 2- Mamlatdar had issued the notice dated 19.11.2013 (Annexure-B) calling upon the petitioner to show cause as to why action under section 61 of the said Code should not be taken against him, he having made illegal encroachment upon the land bearing Survey No. 117 paiki ad-measuring 01 Hc.-20 Are (hereinafter referred to as 'the land in question' for short). The petitioner in response to the said notice had submitted the reply dated 09.12.2013 (Annexure-E) requesting, inter alia, that the said encroachment be regularized as he had incurred huge expenses for the development of the said land to make it cultivable. The respondent No. 2 thereafter passed the impugned order dated 01.01.2014 (Annexure-F) holding that the petitioner had made an encroachment and had unauthorizedly cultivated the land in question since last more than 25 years, and directed the petitioner to pay the penalty as mentioned therein and further directed to remove the said encroachment. 5. It further appears that the said order of Mamlatdar remained unchallenged by the petitioner. Hence, the said encroachment was sought to be removed by the respondent authorities on 15.11.2014 by drawing the panchnama in presence of the panch-witnesses (Annexure-K). 5. It further appears that the said order of Mamlatdar remained unchallenged by the petitioner. Hence, the said encroachment was sought to be removed by the respondent authorities on 15.11.2014 by drawing the panchnama in presence of the panch-witnesses (Annexure-K). The respondent No. 6 Collector thereafter passed the order dated 27.11.2014 (Annexure-O) earmarking the land in question for the construction of government offices and staff quarters in exercise of powers conferred under section 38 of the said Code. Being aggrieved by the said orders passed at Annexure-F and Annexure-O, the petitioner has filed the present petition. 6. The petitioner having filed the petition on 23.12.2014, notices came to be issued by the Court to the respondents on 24.12.2014, and both the parties were directed to maintain status quo qua the possession and use of the land in question. The respondents resisted the petition by filing the reply contending, inter alia, that the petitioner had filed the petition without exhausting the statutory remedy of filing appeal against the order of Mamlatdar, available to him and hence, the petition was not maintainable. It has also been contended that the petitioner having made encroachment over the land in question, the Mamlatdar had passed the impugned order after giving opportunity of hearing to the petitioner under Section 61 of the Code. It is also contended that the land in question is very valuable and has now been earmarked for the public purpose for construction of government offices and that the same cannot be regularized, merely because the petitioner had made encroachment. The petitioner has filed affidavit in rejoinder, in response to the said affidavit filed by the respondent authorities. 7. The Respondent authorities thereafter filed Civil Application being No. 13368 of 2015 seeking vacation of the interim relief on the ground that the petitioner had violated the interim order passed by the Court, by again entering in to the land in question, damaging the fencing put up by the respondent authorities and by constructing residential house and shed for the cattle. The respondents have also annexed the photographs dated 03.10.2015 to show the position as on that day, along with the said application. As stated herein above, with the consent of learned Advocates for the parties, instead of deciding the said application, the main petition was heard finally. 8. The respondents have also annexed the photographs dated 03.10.2015 to show the position as on that day, along with the said application. As stated herein above, with the consent of learned Advocates for the parties, instead of deciding the said application, the main petition was heard finally. 8. At the outset, it may be stated that indisputably the order passed by the Mamlatdar under Section 61 of the said Code is appealable under section 9 of the Gujarat Revenue Tribunal Act and the petition has been filed without exhausting the said statutory remedy. Hence, the petition deserves to be dismissed on the ground of availability of the alternative, efficacious statutory remedy alone. 9. Shri P.S. Champaneri for the petitioner while fairly admitting that the petitioner had made encroachment on the land in question since last many years and that the Mamlatdar had the jurisdiction and power to remove the said encroachment, he submitted that the respondent authorities had acted high handedly in removing the said encroachment under the guise of exercising powers under section 61 of the said Code. Placing heavy reliance on the decision of the Full Bench in the case of GOVERNMENT OF GUJARAT v. AMRAJI MOTIJI THAKOR & ANR., reported in 1991 (2) GLH 606 , learned Advocate Shri Champaneri raised bone of contention that decision taken under section 61 of the Code had to be implemented as per the procedure contained in section 202 and therefore, the Respondent No. 6-Collector was required to issue notice and grant an opportunity of hearing before removing the encroachment. 10. In order to appreciate the said contention, it would be beneficial to reproduce the relevant observations made by the Full Bench, in the case of GOVERNMENT OF GUJARAT v. AMRAJI MOTIJI THAKOR & ANR. (Supra), while considering scope of sections 61, 79A and202 of the said Code, which reads as under: "8. Section 202 of the Code contemplates a person wrongfully in possession of land who may or shall be evicted by the collector if it is so provided by the Code or any other Act for the time being in force. (Supra), while considering scope of sections 61, 79A and202 of the said Code, which reads as under: "8. Section 202 of the Code contemplates a person wrongfully in possession of land who may or shall be evicted by the collector if it is so provided by the Code or any other Act for the time being in force. Thus, the section itself contemplates a power to evict a person wrongfully in possession of land lying somewhere else in the Code or in some other Act for the time being in force; and a bare reading of sections 51, 79A(a) would show that they inter alia, confer power on a collector to summarily evict a person "unauthorizedly occupying" land referred to in section 61 or a person "unauthorizedly occupying or wrongfully in possession of" any land, to the use or occupation of which by reason of any of the provisions of the Code, he is not entitled or has ceased to be entitled, is contemplated by section79A(a). Of course, this power is discretionary with the Collector as indicated by the words "may be summarily evicted by the Collector" occurring in Section 79A. Therefore, section 202 would be applicable to persons in respect of whom such power is exercised by the Collector. The question is whether the decision to exercise this power or the order to evict such person is to be taken or made under sections 61 and 79A(a) or under section 202 of the Code? 9. Ex-facie, there is no reason, when the power to summarily evict a person from the land is conferred by these two sections, why the order to evict should not be taken to have been made under these sections. The order to evict would necessarily fall under these sections, because the power to do so is conferred by these sections. Apart from this, if we go by Section 61 we find intrinsic evidence in the said section itself contemplating a decision to be reached with regard to summary eviction, of the person covered by that section. This will be clear on a close examination of the scheme of Section 61itself. Apart from this, if we go by Section 61 we find intrinsic evidence in the said section itself contemplating a decision to be reached with regard to summary eviction, of the person covered by that section. This will be clear on a close examination of the scheme of Section 61itself. Its opening portion contemplates three contingencies in which unauthorised occupation may arise (1) unauthorised entry upon occupation of any land set apart for any special purpose, (2) any authorised entry or any unoccupied land which has not been alienated, and (3) use or occupation of any of the lands of the aforesaid two categories to the use or occupation of which by reason of any of the provisions of the Code, the person in possession is not entitled or has ceased to be entitled. The section then proceeds to specify the consequences of the acts contemplated by any of the aforesaid contingencies; and the consequences are: (1) liability to payment of assessment of the entire survey number for the whole period of unauthorised occupation, (2) liability to pay in addition, within the discretion of the Collector, a fine not exceeding Rs. 5/- or a sum equal to ten times the amount of assessment payable by such person for one year if the said sum be in excess of Rs. 5/-, if the said person has taken up the land for the purpose of cultivation, and (3) liability for summary eviction from such land coupled with forfeiture of any crop raised in the lands as well as removal of any building or other construction erected on such land. Such building or construction also becomes liable to be forfeiture if not removed after reasonable notice. 10. Now, with regard to the first consequence, viz. liability to pay assessment, 4th paragraph of section in terms contemplates a decision of the Collector as to the amount of assessment payable for the land occupied unauthorizedly and makes the said decision conclusive. Similarly, with regard to the consequence as to forfeiture of crop raised or the building not removed after reasonable notice, the last paragraph of the said section in terms of contemplates adjudication by the Collector. Similarly, with regard to the consequence as to forfeiture of crop raised or the building not removed after reasonable notice, the last paragraph of the said section in terms of contemplates adjudication by the Collector. A bare reading of the paragraphs conferring power of summary eviction on the Collector would show that the liability for forfeiture of crop raised in such land is coupled with the liability to summary eviction and would follow as a consequence of summary eviction. This is clear from the words "may be summarily evicted by the Collector, and any crop raised in the land shall be liable to forfeiture..... " If that is the position, the adjudication as to forfeiture would necessarily involve a decision of summary eviction. The section also provides for penalty of fine in the discretion of the Collector. Therefore, the Collector would also have to take a decision as to imposition of an quantum of penalty under the section itself. Thus, this section itself provides for a decision as to amount of assessment, adjudication of forfeiture and a decision as regards imposition of penalty if any. If on these subjects all connected intimately with unauthorised occupation of land, a decision or adjudication is contemplated under the section itself, there is no good reason why we should take a view that decision as to summary eviction is not to be taken under this section itself, but is to be taken under section 202 of the Code by issuing a notice contemplated by that provision. It is in this context that the provisions of section 9 read with entry I Tribunal Act, 1957 assumes great relevant. Section 9 speaks of decisions and orders in cases arising under the provisions of the Code specified, inter alia, in the first entry of the First Schedule. The first entry in the First Schedule in terms refers to Sections 61 and 79A(a) both of which pertain to unauthorised occupation of land. Therefore, the decision or order made appealable by Section 9 in cases arising under Sections 61 and79A(a) are decisions or orders under these two sections themselves. The decision as to summary eviction of a person from possession of law is a decision vital to the person concerned who would be an agriculturist cultivating lands. Therefore, it is quite appropriate that a right of appeal is conferred against such a decision. The decision as to summary eviction of a person from possession of law is a decision vital to the person concerned who would be an agriculturist cultivating lands. Therefore, it is quite appropriate that a right of appeal is conferred against such a decision. Now, if we hold as was done by the Division Bench in Chimanlal's case (supra) that the notice under Section 202 of the Code in itself amounts to a decision or order, the said view may well deprive such an agriculturist of a very valuable right of appeal. An interpretation of Section 202 which makes the said right to appeal nugatory should not be adopted. 11. We have already seen earlier that both Sections 61 and 79-Aconfer power of summary eviction on the Collector. On first principles, a decision as to exercise of this power must be taken to be a decision under the aforesaid substantive provisions conferring powers. It is true that Section 202 of the Code not necessarily confined to the case of persons dealt with under Sections 61 and 79A only. Therefore, we must try to find out whether there is anything in Section 202 which, notwithstanding the aforesaid discussion based on the provisions of Sections 61 and 79A of the Code and Section 9 of the Revenue Tribunal Act, may lead us to the conclusion that the notice issued under section 202 itself amounts to a decision or order. The opening portion of the section refers in terms to the power of the Collector to evict a person wrongfully in possession of the land either under the provisions of the Code or in any other Act for the time being in force. That power, we have already seen, lies outside the provisions of Section 202. It is with regard to the eviction of person whose eviction has been decided upon in exercise of the aforesaid power that the section makes provision. The section provides for the manner of enforcement of a decision or order of eviction taken in exercise of powers to be found in the Code or in any other law of the time being in force. It is a sort of provisions similar to execution of a decree of a Civil Court. The section provides for the manner of enforcement of a decision or order of eviction taken in exercise of powers to be found in the Code or in any other law of the time being in force. It is a sort of provisions similar to execution of a decree of a Civil Court. The mode of enforcing the decision or order is a notice requiring the person ordered to be evicted to vacate the land within such time as may appear to the Collector to be reasonable. The need for such notice and giving of reasonable time seems to have been included because the eviction is to take place from land which in many cases may have been put to agriculture use. There is nothing in Section 202 to indicate that the Legislature intended this notice to be a decision or order of eviction. The notice to evict within reasonable time ordinarily is not the expression used by the Legislature to denote a decision or order of eviction. The provision in the said section as to removal of resistance or obstruction after a summary enquiry also indicates that the section pertains to the domain of execution or enforcement of a decision or order already taken or made in exercise of power conferred by some substantive provision of the Code or any other Act for the time being in force. The original note to the section reads "Collector how to proceed in order to evict any person wrongfully in possession of land." this note also shows the drift of the section in the direction of enforcement or execution of decision or order of eviction." 11. The Full Bench concluded by answering the reference as under: "12. Our answer to the question re-framed is as under: (1) A notice under Section 202 of the Bombay Land Revenue Code does not in itself amount 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. (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 or 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. Questions answered accordingly." 12. In view of the above, there remains no shadow of doubt that section 61 of the Code confers power of summary eviction on the Collector, and that the principles of natural justice are required to be followed before passing the order of summary eviction under section 61, however, such principles are not to be followed under section 202 except in case of resistance or obstruction while taking possession of the land. In the instant case, admittedly the petitioner was given opportunity of hearing by the Mamlatdar before passing the order under Section 61 of the Code. Admittedly the said order remained unchallenged for more than ten months. Admittedly, no resistance or obstruction was caused by the petitioner when the petitioner was sought to be evicted. Shri Champaneri has also not disputed rather admitted relying upon the reply filed by the petitioner before the Mamlatdar that the petitioner had made encroachment since last many years and had requested the Respondent-Mamlatdar to regularize the said encroachment in view of the prevailing policy of the government, more particularly contained in the Government Resolutions produced at Annexure-M. 13. Shri Champaneri has also not disputed rather admitted relying upon the reply filed by the petitioner before the Mamlatdar that the petitioner had made encroachment since last many years and had requested the Respondent-Mamlatdar to regularize the said encroachment in view of the prevailing policy of the government, more particularly contained in the Government Resolutions produced at Annexure-M. 13. The very fact that the petitioner has not made any application to the Collector, who is the Competent Authority to regularize the encroachment as per the Government Resolutions relied upon by the learned Advocate for the petitioner and that, the application was made only to the Mamlatdar and that too by way of reply to the show-cause notice issued by the Mamlatdar, the said submission does not deserve any consideration. In any case, even as per the government resolution relied upon by learned Advocate Shri Champaneri, there is clear direction from the State Government not to regularize the encroachment made on the government land, which is likely to be needed for public purpose. In the instant case, the Collector has directed vide order dated 27.11.2014 to earmark land in question for public purpose to construct government offices and the staff quarters in exercise of powers conferred under section 38 of the said Code. Though, it was sought to be submitted by Mr. Champaneri that the Collector has regularized the encroachment in other similar cases and the Collector should have regularized the encroachment of the petitioner, who was in possession of the land in question since so many years, the Court does not find any substance in the said submission also. 14. As rightly submitted by learned AGP relying upon the decision in the case of BHANUSHALI KISHORBHAI PARUMAL & ORS., v. STATE OF GUJARAT & ORS. reported in 2010 (1) GLR 251 , merely because the petitioner was in possession of government land unauthorizedly, and had encroached upon the said land since many years that would not give him any right to get it regularized. It is also observed by the Hon'ble Division Bench in the said decision that: "18. Despite our repeated inquiry from Mr. Oza as to whether the petitioners are having any title or document in support of their claim that they are in legal or legitimate possession of the shops/premises in question, no document whatsoever was produced by any of the petitioners. Despite our repeated inquiry from Mr. Oza as to whether the petitioners are having any title or document in support of their claim that they are in legal or legitimate possession of the shops/premises in question, no document whatsoever was produced by any of the petitioners. Simply because they were in possession, it cannot be said that their possession was a lawful possession. They are encroachers all through out and as per the direction of this Court in the matter of public interest litigation, the Collector has rightly passed the order considering the case of each of such encroachers and held that they are encroachers of land occupied by them and the said land is required for the purpose of widening the road and to create other facilities for the people at large of Dhanera town. Simply because some persons were allotted land and their possession was regularized, the petitioners cannot claim any parity on that basis. The Apex Court in the case of M/s. Vishal Properties Pvt. Ltd. v. State of U.P. & Ors, reported in 2007 AIR SCW 6 540 held that an order made in favour of persons in violation of prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities. Simply because the Municipality or the Government agency has committed some mistakes the Court cannot issue direction that the said mistakes be perpetuated on the ground of discrimination or hardship. Any action/order contrary to law does not confer any right upon any person for similar treatment." 15. In view of the above, the Court does not find any substance in the present petition. The learned AGP had pointed out that the petitioner had flouted the interim order passed by the Court by putting up the residential house and sheds for cattle, though, the Court had directed to maintain status quo. Though, there is some substance in the said submission, the Court is not inclined to stretch the matter any further, and deems it proper to dismiss the same. It is needless to say that the respondents shall be at liberty to remove all unauthorized encroachment made by the petitioner. 16. Though, there is some substance in the said submission, the Court is not inclined to stretch the matter any further, and deems it proper to dismiss the same. It is needless to say that the respondents shall be at liberty to remove all unauthorized encroachment made by the petitioner. 16. However, before parting, it is required to be observed that from the record of the case, it appears that though the petitioner had made encroachment since last more than 25 years, no action was taken by the respondent authorities to remove such illegal encroachment on the government land. It clearly exhibits sheer connivance and lethargy on the part of the respondent authorities, which deserves to be taken serious note of. If the land in question was having prime location and very valuable land as contended by the learned AGP, it was the duty of the concerned respondent authorities to protect the same and to see to it that encroachment was not made, and if made, the same was removed forthwith. There being deliberate connivance on the part of the concerned respondent authorities, the Court is of the opinion that the State Government should take serious note of such inaction and lethargy shown by the concerned respondents and take appropriate action. 17. In that view of the matter, the petition deserves to be dismissed and stands dismissed accordingly. Rule is discharged. The Interim relief, granted earlier, shall stand vacated forthwith. Copy of this order be sent to the Chief Secretary and the Principal Secretary, Revenue Department, Government of Gujarat, Sachivalaya, Gandhinagar.