SA/209/2008 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 209 of 2008 with CIVIL APPLICATION No.10740 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HARISHKUMAR SAHIJRAM THADANI - Appellant(s) Versus CITY SURVEY SUPERINTENDENT & 1 - respondent(s) ========================================================= Appearance : MR GT DAYANI for Appellant(s) ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 16/09/2008 ORAL JUDGMENT 1. The appellant has filed the present Appeal being aggrieved and dissatisfied by the judgment and decree dated 8.8.2008 rendered by SA/209/2008 2/29 JUDGMENT the learned Presiding Officer, 2 nd Fast Track Court, Nadiad, in Regular Civil Appeal No.21 of 2006, whereby, the judgment and decree dated 21.1.2006 passed by the learned 5 th Additional Senior Civil Judge, Nadiad, in Regular Civil Suit No.39 of 2002, has been confirmed. 2. The brief facts leading to the filing of the Appeal are as follows: The appellant was the plaintiff before the trial Court and for the sake of convenience, the parties will be referred to as they appear in the present Appeal. The appellant is a resident of Kapadwanj and is carrying on the business activities at that place. The respondent No.1 is the City Survey Superintendent and the respondent No.2 is the Kapadwanj Nagarpalika. The case of the appellant before the trial Court was that the respondent No.2 had passed a Resolution dated 26.9.1953 whereby a piece of land had been allotted to Lokchand Gehimal Thadani, the grandfather of the appellant, in the year 1953-54. The said Resolution had been sent to SA/209/2008 3/29 JUDGMENT the local District Authority for permission and accordingly, the respondent No.2 had decided to recover 4 (Four) Annas per sq.ft. from the allottee. Thereafter, the respondent No.2 had started recovering rent and special tax from the grandfather of the appellant. It was the case of the appellant that the respondent No.2 had allotted plots to refugees, in City Survey No.6232 or alternatively 6223, outside the compound of Mukhya Kumar Shala at Sarkhaliya Darwaja, and the appellant is in possession of a plot which was occupied by his grandfather, at the relevant point of time. By Resolution dated 26.9.1953 of the respondent No.2, the grandfather of the appellant was holding the plot and carrying on his business thereupon. According to the appellant, his grandfather had a licence from the respondent No.2 for running his business and was also holding an electricity connection. After the demise of his grandfather, in the year 1984, the appellant applied to the respondent No.2 to transfer the suit property in his name and the respondent No.2 transferred the plot to the SA/209/2008 4/29 JUDGMENT appellant by accepting a transfer fee. The appellant thereafter constructed one RCC house upon the suit property in the year 1992. The case of the appellant was that he is paying rent and taxes to the respondent No.2 and the respondent No.2 is also issuing receipts. The term of licence has been extended by the respondent No.2 from the initial period of seven years, for a period of ten years and thereafter has been renewed from time to time. The case of the appellant before the trial Court was that the respondent No.1 has no concern with the suit property, as the said property is situated in the city of Kapadwanj, about 25 to 30 feet away from the main public road. The respondent No.1 issued a notice for eviction dated 15.1.2002, under the provisions of Section 61 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as “the Code”) which, according to the appellant, is vague and not in accordance with law and, therefore, the appellant filed the above-mentioned suit, praying for the relief of restraining the respondent No.1 from interfering, in any manner, with the use and occupation of the SA/209/2008 5/29 JUDGMENT suit property by the appellant. 3. The suit was contested by the respondent No.1 on behalf of the State Government, by filing a written statement at Ex.24 wherein the averments made in the plaint were denied. It was contended that the suit property is not situated on the land acquired by the respondent No.2 (Nagarpalika) but is situated on the land of respondent No.1 (State Government). It was contended that the appellant has not produced any letter of permission from the respondent No.1 in favour of the respondent No.2 to allow the appellant to occupy the said land. It was contended in the written statement that the respondent No.1 has not allotted the suit property to the appellant by way of licence or lease and the respondent No.2 has no right to allot the suit property to the appellant by lease or licence, without the prior permission of the State Government. It was also stated that the notice dated 15.1.2002 issued by the respondent No.1 is in conformity with the provisions of the statute and there is no violation of law. The respondent No.1 alleged that the appellant had SA/209/2008 6/29 JUDGMENT encroached upon the land belonging to the State Government and, therefore, the suit may be dismissed. 4. A written statement was also filed by the respondent No.2, at Ex.20, wherein it was contended that no letter of sanction of the local authority is found on the record, and as per the Resolution dated 26.9.1953, the suit land is part of the main road and has been allotted to the appellant. It was also stated that no survey number of the suit property has been entered in the City Survey records, but due to a mistake on the part of an employee of the Kapadwanj Nagarpalika, a survey number of the property has been wrongly mentioned in the receipt. The respondent No.2 has categorically denied that any permission for construction on the suit land had been granted to the appellant. It was further stated that, at the time of allotting the land to the appellant, the respondent No.2 had not asked the appellant to vacate the suit land as it was not obstructing the main road. It was further stated that the respondent No.2 has not given any notice to the appellant and the suit may SA/209/2008 7/29 JUDGMENT be dismissed. 5. On the above pleadings, the trial Court framed the following issues: (i) Whether the plaintiff proves that he is the lawful tenant of the plot in question, being Plot No.3 of City Survey No.6232? (ii) Whether the plaintiff proves that the notice dated 15.1.2002 issued by the respondent No.1 is illegal and without authority of law? (iii) Whether the respondent proves that the suit of the plaintiff is bad due to non-issuance of statutory notice? (iv) Whether the plaintiff is entitled for the relief, as prayed for? (v) What order and decree? 6. The trial Court recorded negative findings on Issues Nos.1 to 4. The findings of the trial Court are that the appellant is in possession of the suit land but, on the basis of the evidence on record, it is proved that the appellant is not a lawful tenant of the respondent No.2. The trial Court also found that the notice dated 15.1.2002 issued by the SA/209/2008 8/29 JUDGMENT respondent No.1 under the provisions of Section 61 of the Code is in accordance with law as, undoubtedly, the suit land belongs to the State Government. The trial Court also found that the respondent No.2 had no right to allot the suit land to the appellant, without the prior sanction of the State Government. Another finding arrived at by the trial Court is that the suit property is not situated on City Survey No.6232, as claimed by the appellant and as the land belongs to the State Government, notice dated 15.1.2002 by the respondent No.1 under the provisions of Section 61 of the Code to the appellant, suffers from no legal infirmity. The trial Court has also observed that the appellant has not prayed for a declaration to the effect that the notice is illegal and, without jurisdiction, therefore, it is not open to him to ask for the consequential relief for grant of permanent injunction, restraining the respondents from dispossessing him from the suit property. The trial Court has arrived at a specific finding that the appellant has failed to prove that he is a lawful tenant of SA/209/2008 9/29 JUDGMENT the respondent No.2 and the respondent No.2 had no right to allot the land belonging to the State Government to the appellant without prior sanction, and, therefore, the appellant is nothing more than a trespasser. Ultimately, the suit was dismissed. 7. In appeal, the first appellate Court, after considering the arguments advanced by the appellant and the respondents, and after discussing the issues framed by the trial Court and its findings thereupon, confirmed the findings arrived at by the trial Court to the effect that the appellant is not the tenant of the respondent No.2 and the respondent No.2 had not taken the prior permission of the State Government before allotting the suit property to the appellant, as the suit land belongs to the State Government. The finding of the trial Court that the appellant is not a lawful tenant upon the suit land has been confirmed, and the judgment and decree of the trial Court upheld, giving rise to the present Appeal. 8. Mr.G.T.Dayani, learned counsel for the SA/209/2008 10/29 JUDGMENT appellant has submitted as under: (a) The notice dated 15.1.2002 issued by the respondent No.1 is illegal and without jurisdiction, inasmuch as the same has been issued by the City Survey Superintendent whereas, as per the provisions of Section 61 of the Code, it should have been issued by the Collector. It is submitted that there is nothing on the record to show that the Collector has delegated his powers to the City Survey Superintendent and as provided in the Gujarat Land Revenue Rules, 1972, this power may be delegated to the Mamlatdar and Mahalkari, and therefore, the notice dated 15.1.2002, is illegal and without jurisdiction. It is submitted that the findings of both the trial Courts below are erroneous. (b) The notice issued under the provisions of Section 61 of the Code could not have been issued without holding an inquiry under the provisions of Section 37(2) of the Code, and this aspect has also been overlooked by both the courts below. Reliance has been placed by SA/209/2008 11/29 JUDGMENT the learned counsel for the appellant upon Rajkot Municipal Corporation v. State of Gujarat & Ors. - 1997(2) GLR 1281. It is submitted that as the provisions of Section 80(1) of the Bombay Provincial Municipal Corporations Act, 1949, are analogous to Section 37(2) of the Code, therefore, an inquiry in the matter was necessary and in the absence of an inquiry under Section 37(2) of the Code, the notice under Section 61 could not have been issued. Reliance has also been placed on Vaghela Dahyabhai Chaturbhai v. State of Gujarat And Another – 1970(11) GLR 386 in support of the above contention. (c) The appellant is the tenant of the respondent No.2 (Nagarpalika), which has issued rent receipts to him and has transferred the right in the suit property to the appellant by accepting a donation. It is further submitted that the respondent No.2 has never issued any notice to the appellant and, therefore, the notice issued by the respondent No.1, is without the authority of law. SA/209/2008 12/29 JUDGMENT (d) Both the Courts below have not considered material evidence on record, namely, a copy of the deposition of one Shri Dipak Ramchandra Thakre, in another Civil Suit, which was produced before the trial Court, in which it is stated that the respondent No.1 had no power to issue such a notice. (e) The first appellate Court has not examined the evidence critically and has not adopted any process of reasoning and therefore the judgment rendered by it cannot stand. In support of this contention, reliance has been placed on Balraj Taneja And Another v. Sunil Madan And Another – (1999)8 SCC 396 and State of Rajasthan v. Harphool Singh (Dead) Through His LRs – (2000)5 SCC 652. On the strength of the above submissions, it is prayed by the learned counsel for the appellant that the appeal may be admitted, and allowed, and the judgments and decrees of both the Courts below may be quashed and set aside. 9. I have heard the learned counsel for the appellant, perused the documents on record and SA/209/2008 13/29 JUDGMENT considered the submissions made at the Bar. 10.The first submission canvassed by the learned counsel for the appellant is that the notice dated 15.1.2002 issued by the City Survey Superintendent to the appellant is illegal and without jurisdiction, on the ground that it has not been issued by the Collector. In order to examine this submission, it would be useful to refer to the provisions of Section 61 of the Code, which read thus: “61. Penalties for unauthorized occupation of land :- Any person who shall unauthorizedly enter upon occupation of any land set apart for any special purpose, or any unoccupied land which has not been alienated, and any person who uses or occupies any such land 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 shall, if the land which he unauthorizedly occupies forms part of an assessed survey number, pay the assessment of the entire number for the whole period of his unauthorized occupation, and if the land so occupied by him has not SA/209/2008 14/29 JUDGMENT been assessed, such amount of assessment as would be leviable for the said period in the same village on the same extent of similar land used for the same purpose; and shall also be liable, at the discretion of the Collector, to a fine not exceeding five rupees, or a sum equal to ten times the amount of assessment payable by him for one year, if such sum be in excess of five rupees, if he has taken up the land for the purposes of cultivation, and not exceeding such limit as may be fixed in rules made in this behalf under section 214, if he has used it for any non-agricultural purpose. The Collector's decision as to the amount of assessment payable for the land unauthorizedly occupied shall be conclusive, and in determining its amount occupation for a portion of a year shall be counted as for a whole year. The person unauthorizedly occupying any such land may be summarily evicted by the collector, and any crop raised in the land shall be liable to forfeiture, and any building, or other construction, erected thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture, or to summary removal. Forfeitures under this section shall be SA/209/2008 15/29 JUDGMENT adjudged by the Collector, and any property so forfeited shall be disposed of as the Collector may direct and the cost of the removal of any encroachment under this section shall be recoverable as an arrear of land revenue.” As is clear from reading of the above provision of law, Section 61 of the Code authorises the Collector to levy a fine to the extent mentioned in the said Section or summarily cause the unauthorised occupant of the land to be evicted, after written notice as deemed reasonable by the Collector is issued to him. The unauthorised occupant may thereafter be liable to be removed summarily and the land forfeited to the Government. The last paragraph of the said Section contains the provisions for issuance of notice. According to the said provision, a person who is unauthorisedly occupying any such land may be summarily evicted by the Collector and any crop raised in the land shall be liable to be forfeited. The section provides for a written notice, as the Collector may deem reasonable, to be issued, to the unauthorised occupant, before summary removal or forfeiture. The said SA/209/2008 16/29 JUDGMENT Section nowhere mandates that the notice issued under Section 61 of the Code has to be issued in the name of the Collector only. It mentions written written notice “as the Collector may deem reasonable”. Chapter II of the Gujarat Land Revenue Rules, 1972, delineates the powers and duties of Officers as far as administrative orders are concerned. Under the said Chapter, certain administrative orders are mentioned. As far as Section 61 of the Code is concerned, it is mentioned that by Government Resolution, Revenue Department, No.8833/43, dated 3 rd December, 1951, powers may be delegated by the Collector to the Mamlatdar and Mahalkaris by name as well as by virtue of office. This Government Resolution is dated 3 rd December, 1951, and there is nothing on record to show that no further administrative orders have been passed in this regard. Therefore, the submission made by the learned counsel for the appellant does not carry much weight, as in the present case, there is nothing on record to prove that the notice could not have been issued by the respondent No.1. It is a settled position of SA/209/2008 17/29 JUDGMENT law that where the source of power exists, then the exercise of that power cannot be invalidated on the ground that it has been exercised by another authority, who is acting on behalf of the competent authority. There is no material on record to show that the power has been exercised wrongly by the respondent No.1. The Collector is empowered to cause notice under Section 61 of the Code to be issued as he deems reasonable and a notice contemplated by the provisions of Section 61 of the Code has been issued by the respondent No.1. The findings of both the Courts below on this point are clear and unambiguous. The trial Court has come to the conclusion that there is no illegality and infirmity in the notice dated 15.1.2002 issued by the respondent No.1, and the findings of the trial Court have been confirmed by the first appellate Court. At the stage of Second Appeal, findings of fact based upon appreciation of evidence on record cannot be gone into, especially as there is no perversity or illegality in the conclusions arrived at by both the Courts below. SA/209/2008 18/29 JUDGMENT The trial Court has observed, and in my view rightly so, that the appellant has not prayed for the relief of declaration to the effect that the notice dated 15.1.2002 is illegal and, in the absence of such a prayer, the appellant cannot ask for the consequential relief of permanent injunction to restrain the respondents from dispossessing him of the suit property. There is no dispute regarding the fact that the suit land belongs to the State Government and as per the provisions of Section 61 of the Code, the State Government can issue notice to any person who is in unauthorised occupation of land owned by the Government. The trial Court has also observed that it is specifically mentioned in the notice dated 15.1.2002 that the appellant can make a representation against the notice within ten days of receipt thereof, which appears not to have been done and the civil suit has been filed straightaway. The trial Court has, on the basis of the material on record, arrived at the conclusive finding that the appellant has not been able to prove that the said notice is in any way SA/209/2008 19/29 JUDGMENT illegal or without jurisdiction. These findings have been confirmed by the first appellate Court. I find no infirmity therein, so as to warrant interference, therefore, the submission advanced by the learned counsel for the appellant, cannot be accepted. 11.A submission has been made by Mr.Dayani that the notice under Section 61 of the Code could not have been issued without an inquiry being conducted under the provisions of Section 37(2) of the Code. This submission appears to have been raised for the first time before this Court, as a reading of the judgments of both the Courts below does not reveal that such an argument was advanced before the Courts below. Section 37 of the Code provides that all public roads and lands, which are not the property of individuals, are declared to be with all rights, the property of the Government. Section 37(2) of the Code provides that where any property or any right in or over any property is claimed by or on behalf of the Government or by any person as against the Government, it shall be lawful for the Collector or a survey officer, after formal SA/209/2008 20/29 JUDGMENT inquiry of which due notice has been given, to pass an order deciding the claim. This provision of law has no relevance to issuance of notice under Section 61 of the Code. Had such an inquiry been contemplated, it would have been so stipulated in Section 61 by the legislature. I am unable to accept the submission made by the learned counsel for the appellant that the provisions of Section 37(2) of the Code should have been invoked before issuance of the notice under Section 61 of the Code as, in my view, the provisions of Section 37 of the Code have no relevance to the issuance of notice under Section 61 of the Code. The judgment cited by the learned counsel for the appellant in Rajkot Municipal Corporation v. State of Gujarat & Ors. (supra) is, therefore, of no help to the case of the appellant. In that case, the claim against Government land was made by the Rajkot Municipal Corporation and the Court observed that in reference to the provisions of Section 80 of the Bombay Provincial Municipal Corporations Act, 1949, any claim with respect to any immovable property by or on behalf of SA/209/2008 21/29 JUDGMENT the Corporation will have to be adjudicated upon by the Collector after a formal inquiry. The Court came to the conclusion that Section 80(1) of the Bombay Provincial Municipal Corporations Act, 1949, is analogous to Section 37(2) of the Code and, therefore, the claim of the Corporation with respect to the land, said to be belonging to the Government, will have to be adjudicated upon in accordance with Section 80(1) of the said Act. The above- referred to judgment has no relevance to the facts of the present case. Similarly, the judgment in Vaghela Dahyabhai Chaturbhai v. State of Gujarat And Another (supra) does not take the case of the appellant any further, as it deals with the provisions of Section 37(1) of the Code which, as already discussed hereinabove, are not relevant in the facts and circumstances of the case. 12.As regards the third contention of the learned counsel for the appellant to the effect that the appellant is the tenant of the respondent No.2 – Nagarpalika; the trial Court has arrived at a specific finding on the basis of evidence on record that the suit land SA/209/2008 22/29 JUDGMENT belongs to the respondent No.1 (State Government) and as per the provisions of Section 65(2) of the Gujarat Municipalities Act, 1963, the Nagarpalika is required to obtain the prior sanction of the State Government in case of lease of immovable property for a term exceeding ten years. The Nagarpalika does not deny that the suit land is part of the public road and, as such, permission has to be obtained from the respondent No.1. The trial Court has, therefore, held that the appellant has not produced any evidence that permission has been granted by the