STAE OF GUJARAT Vs. PATEL HARMANBHAI NATHABHAI

JUDGEMENT

(1.) This is a second appeal by the State against the judgment and decree in appeal of the Extra Assistant Judge of Kaira decreeing suit No. 138 of 1953 filed against the State by the original plaintiff Patel Harmanbhai Nathabhai for a declaration that the defendant viz. the State of Bombay had no right to remove the Kachcha temporary huts erected on his land and for a permanent injunction to restrain the defendant from removing or demolishing the huts standing on his land. The land in question is Survey No. 2366/6/1 situated at Anand. The original owner Bai Kanku was granted permission on 6-6-39 for making non-agricultural use of the said land on condition that two thirds of the land should be kept open. The condition was that an area of 902-1 sq. yds . sq. fit. should be kept open to the sky as compound. In 1949 it was found that the plaintiff who had purchased the land from the original owner Mai Kanku had constructed huts in 71 sq. yards of this area without obtaining the permission of the Collector and contrary to the condition or which permission for non-agricultural use was granted. The Collector of Kaira thereupon issued a notice on 5-9-49 to the plaintiff to remove the said constructions made in 71 sq. yards of land within one month of the receipt of the said notice and threatening action under sec. 79-A of the Land Revenue Code. By order Ex.37 dated 13-6-52 the Collector allowed the unauthorised structures to remain upto 31-12-52 on condition that they should be remove within a week from 31-12-52. The Collector further ordered that if those structures were not removed within the period allowed the occupant would be evicted from the whole land and the structures should he got removed through the Government agency and the cost of their removal should be recovered from him as arrears of land revenue. As even after 31-12-52 the construction was not removed the Collector passed an order (Ex. 38) which reads as follows :

(2.) In view of the order the plaintiff Harmanbhai filed the suit which was dismissed by the trial Court but it First Appeal the learned Extra Assistant Judge allowed the appeal and decreed the suit notwithstanding that it was clearly admitted by the plaintiff that he had built huts on 71 sq. yards of land unauthorisedly and without obtaining the permission of the Collector. The learned Extra Assistant Judge held that under secs. 66 & 79-A of the Land Revenue Code the Collector had power only to evict the occupant but the Collector had no power to remove or destroy the unauthorised constructions. The Learned Extra Assistant Judge relied on State v. Fakir Umar Dhanse 57 Bombay Law Reporter 243 He therefore decreed the suit and granted the declaration and permanent injunction as sought by the plaintiff against the State. This order of the learned Extra Assistant Judge is now challenged in this second appeal.

(3.) I allow the appeal for the following reasons: sec. 66 of the Land Revenue Code refers to summary eviction of the occupant by the Collector from the land and also provides that the occupant shall in certain circumstances be liable to pay in addition to the assessment such fine as the Collector may direct. Section 79-A also refers to summary eviction of a person unauthorisedly occupying or wrongfully in possession of any land to the use or occupation of which by reason of any of the provisions of the Act he is not entitled or has ceased to be entitled etc. This section also refers to summary eviction of the person by the Collector. Neither of these sections gives power to the Collector to remove unauthorised constructions or to get such constructions removed and to recover the costs of such removal as arrears of the land revenue. With great respect I agree with the view taken by the Bombay High Court in 57 Bombay Law Reporter 243 that those two sections confer power on the Collector of summary eviction but not of removing unauthorised constructions. But if the person is removed and evicted from the land then the question may arise whether the Collector can remove the construction after the eviction and removal of the person who has built the unauthorised construction. Apart from this question under sec. 68 of the Land Revenue Code the occupants rights are conditional on the fulfillment of any terms or conditions lawfully annexed to his tenure. It is admitted that in the instant case the conditions lawfully annexed to the tenure had been violated by the constructions of huts in an area of 71 sq. yards without obtaining the permission of the Collector. The rights of the plaintiff would therefore come to an end and it is not necessary in view of the provisions of sec. 68 of the Code to decide whether the Collector should have forfeited the holding or the rights of the plaintiff. If the plaintiffs rights come to an end by reason of the provisions of sec. 68 and if the Collector has power to evict the plaintiff under secs. 66 & 79-A of the Land Revenue Code it is open to the Collector to remove or demolish the construction. But neither sec. 66 or sec. 63 or sec. 79-A gives him the power to recover the costs of such removal as arrears of land revenue. The Collector can impose fine under sec. 66 of the Code but that has not been done in this case.