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2023 DIGILAW 1948 (BOM)

Shamrao Somaji v. State of Maharashtra

2023-09-25

M.S.JAWALKAR

body2023
JUDGMENT/ORDER 1. Heard learned Counsel for the appellant as well as learned Assistant Government Pleader. 2. Second Appeal came to be admitted on 14/02/2007, on following substantial question of law : "(i) In view of the provisions of Sec. 53 of the Maharashtra Land Revenue Code, 1956 whether the finding recorded by the trial and the appellate Court that the respondent No.1 had proved that the plaintiff has no right to remain on land survey No. 30 and 33 can be justified ? (ii) Whether the Tahsildar could have published a notice for the auction of the suit without following due provision under Sec. 63 of the Maharashtra Land Revenue Code, 1956?" 3. The case of the plaintiff in brief is as under : Plaintiffs have occupied Survey No. 30 and 33 at Nimbhora for manufacturing of bricks and for perpetual injunction restraining the defendant to auctioned the said site. The plaintiff alleged that they are bricks and kavelu makers. The plaintiff No. 7 and 38 are registered cooperative societies carrying business of bricks. The society holds 15 Gunthas of land out of Survey No. 33 for the purpose of brick manufacturing. Survey No. 30 and 33 are 'F' Class land and belongs to defendant/Government. The plaintiffs are annually granted licenses by the Revenue Department of Government of Maharashtra and plaintiff used to pay Rs.50.00 per Guntha by way of premium or royalty to the defendant/Government. The plaintiffs are having their bricks kilns on these plots and they are carrying out the business of brick manufacturing. Plaintiffs were also assured that their licenses would be permanent and they would not be evicted from the site. It is contended by the learned Counsel for the applicant/appellant that since last 30 years, the appellants have carrying out their business on the aforesaid plots. The cause of action arose for filing of the suit which defendant refused to renew the license of the plaintiffs on 28/10/1986 and issued proclamation of auction at Amravati. 4. It is contended that the plaintiffs are carrying out their business of manufacturing bricks since 1967. Both the Court concurrently recorded their findings that the appellant/plaintiff failed to prove that respondent/defendant stayed granting license to them and their predecessor entitled/in title to establish brick kilnk on Survey No. 30 and 33 at the village Nimbhora on permanent basis as alleged. 5. Both the Court concurrently recorded their findings that the appellant/plaintiff failed to prove that respondent/defendant stayed granting license to them and their predecessor entitled/in title to establish brick kilnk on Survey No. 30 and 33 at the village Nimbhora on permanent basis as alleged. 5. The learned Counsel for the appellant drawn my attention to Sec. 53 of the Maharashtra Land Revenue Code, which provides summary eviction of person unauthorisedly occupying land vesting in Government. It is vehemently argued that the plaintiffs were lease holders and their lease cannot be abruptly discontinued by auctioning the suit plot without their being any notice to the plaintiff. As such, auction of the respondent/Government is illegal. 6. As against this, learned Assistant Government Pleader Ms Jaipurkar drawn my attention to Sec. 38 of the Maharashtra Land Revenue Code, wherein, power to grant lease by the Collector is given under Sec. 38 of the Maharashtra Land Revenue Code which reads as under : Sec. 38 - Power to grant leases - "It shall be lawful for the Collector at any time to lease under grant or contract any unalienated unoccupied land, to any person, for such period, for such purpose and on such conditions as he may, subject to rules made by the State Government in this behalf, determine, and in any such case the land shall, whether a survey settlement has been extended to it or not, be held only for the-period-and for the purpose and subject to the conditions so determined. The grantee shall be called a Government lessee in respect of the land so granted." 7. It is the power of Collector to grant or contract in any annual unoccupied land to any person. There is no dispute about the powers of Collector to grant the lease or enter into contract for leasing out such property. 8. In the present matter, there is no dispute over the fact that appellant is occupying the said land since 1965 and running his business of manufacturing bricks. Even if, it is presumed that there was no renewal of license or no license at all, still in view of Sec. 53, it is mandatory on the part of Government to give notice before eviction of such unauthorized person. Even if, it is presumed that there was no renewal of license or no license at all, still in view of Sec. 53, it is mandatory on the part of Government to give notice before eviction of such unauthorized person. Sec. 53 reads as under : Sec. 53 - Summary eviction of person unauthorisedly occupying land vesting in Government - (1) If in the opinion of the Collector, any person is unauthorisedly occupying or wrongfully in possession of any land or foreshore vesting in the State Government or is not entitled or has ceased to be entitled to continue the use, occupation or possession of any such land or foreshore by reason of the expiry of the period of lease or tenancy or termination of the lease or tenancy or breach of any of the conditions annexed to the tenure, it shall be lawful for the Collector to1[***] evict such person. 2[(I-A) Before evicting such person, the Collector shall give him a reasonable opportunity of being heard and the Collector may make a summary enquiry, if necessary. The Collector shall record his reasons in brief for arriving at the opinion required by sub- Sec. (1)]. (2) 3[The Collector shall on his finding as aforesaid, serve] a notice on such person requiring him within such time as may appear reasonable after receipt of the said notice to vacate the land or foreshore, as the case may be, and if such notice is not obeyed, the Collector may remove him from such land or foreshore. (3) A person unauthorisedly occupying or wrongfully in possession of land after he has ceased to be entitled to continue the use, occupation or possession by virtue of any of the reasons specified in sub-sec. (1), shall also be liable at the discretion of the Collector to pay a penalty not exceeding [two times the assessment or rent for land or such amount as may be prescribed, whichever is higher, ] for the period of such unauthorised use or occupation." 9. The Collector can exercise his power against unauthorized occupant or a person wrongfully in possession or not entitled or has ceased to be entitled to continue the use occupation or permission of any such land to evict him by giving him reasonable opportunity of being heard and the Collector may make summary enquiry, if necessary. The Collector can exercise his power against unauthorized occupant or a person wrongfully in possession or not entitled or has ceased to be entitled to continue the use occupation or permission of any such land to evict him by giving him reasonable opportunity of being heard and the Collector may make summary enquiry, if necessary. It is binding on the Collector to record his reasons in brief for arriving at the conclusion as required by Sec. 53 (1). 10. Learned Assistant Government Pleader has not pointed out any notice, which was given before publishing auction. Both the Courts below have not taken into consideration this aspect and held that plaintiff is not entitled for relief, which is claimed for. True it is, that though there is no single document of lease - deed is placed on record, however, it is argued by learned Counsel for appellant that there are challans placed on record which is sufficiently goes to prove that lease was renewed on year to year basis. There is no dispute over this position. I will go a step ahead and say that even if, it is presumed that there was no lease deed executed by the Government, however, from receipt of challans, it is clearly goes to show that appellant is in possession of the said suit land and doing his brick manufacturing business. Even if, the Collector says that occupation is unauthorized one, he will have to follow procedure in Sec. 53 and record the reasoning before auctioning the said plot. 11. As such, both the Courts below have committed an error and recorded perverse finding. Plaintiff is entitled for the relief as claimed for. However, plaintiff is not entitled for permanent injunction as prayed for. They are entitled for injunction from eviction from Survey No. 30 and 33 of village Nimbhora for manufacturing of bricks and kavelus on payment of premium and royalty unless evicted by due process of law. As such, I proceed to pass the following order : ORDER (i) Appeal is partly allowed. (ii) Judgment passed by learned Trial Court in R.C.S. No. 720/1986 dtd. 28/02/2001 passed by learned 3rdJoint Civil Judge Senior Division, Amravati, as well as judgment passed by learned Appellate Court in R.C.A. No. 75/2001 dtd. 18/10/2006, passed by learned District Judge 1, Amravati, are hereby quashed and set aside. (ii) Judgment passed by learned Trial Court in R.C.S. No. 720/1986 dtd. 28/02/2001 passed by learned 3rdJoint Civil Judge Senior Division, Amravati, as well as judgment passed by learned Appellate Court in R.C.A. No. 75/2001 dtd. 18/10/2006, passed by learned District Judge 1, Amravati, are hereby quashed and set aside. (ii) It is hereby declared that plaintiffs are entitled for protection from removal, occupation of Survey No. 30, 33 of village Nimbhora unless due procedure of law is followed by defendant/State for evicting plaintiffs as contemplated under Sec. 53 of the Land Revenue Code. (iii) Decree be drawn up accordingly.