The State Of Bombay vs Fakir Umar Dhanse

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 377 of 1957

Decision Date: 3 February 1961

Coram: J.L. Kapur, J.C. Shah

In this case the Supreme Court of India delivered its judgment on 3 February 1961. The opinion was authored by Justice J L Kapur and the bench also included Justice J C Shah. The petition was instituted by the State of Bombay and the respondent was Fakir Umar Dhanse. The citation for the decision appears as 1961 AIR 722 and 1961 SCR (3) 747. The matter concerned the provisions of the Bombay Land Revenue Code of 1879, specifically sections 65 and 66, which regulate the occupation of un‑alienated agricultural land. The respondent occupied a parcel of such un‑alienated land and erected several structures on it without obtaining the prior permission of the Collector as required by law. The Collector therefore issued a notice under section 66 of the Code directing the respondent to remove the unauthorised structures. The respondent failed to comply with the notice, and consequently the Collector ordered his eviction from the land and arranged for the demolition of the unauthorised buildings. The High Court held that the order directing removal of the structures exceeded the authority granted by section 66 and was therefore ultra vires, although it accepted that the eviction order itself was within the law. Moreover, the High Court concluded that, despite the eviction, ownership of the land and any buildings thereon did not pass to the Government; the occupier remained the legal owner, and the effect of eviction was limited to the physical removal of the occupier from the land. The principal issue before the Supreme Court was whether, after the occupant had been evicted as required to remove the building and remained in default, the Collector possessed the authority to demolish the building and whether such demolition could give rise to liability for damages. The Court carefully interpreted sections 65 and 66 and held that an occupant of un‑alienated land is entitled only to use and occupy the land for agricultural purposes, and may not change the purpose to a non‑agricultural use without the express permission of the revenue authorities. Any alteration of use without such permission authorises the revenue authorities to summarily evict the occupant, and once eviction has taken place the occupant’s right of use and occupation ceases. The Court further explained that the terms “eviction” and “vacation” do not merely denote the physical removal of the occupant; they signify the termination of the occupant’s rights in the land. For a “vacation” to be complete, any unauthorised construction must also be removed, and no separate statutory power is required for that removal; the power to remove the structures is incidental and ancillary to the power to evict and to cause the land to be vacated. Consequently, the true effect of an eviction order includes both the physical removal of the occupant from the land and the demolition of all unauthorised superstructures erected on the land.

In the judgment, the Court explained that the term “eviction” required that, once a person was removed from the land, the land had to be returned to the condition it possessed at the time it was originally assigned to the occupant, so that it could be used for the purpose for which it had been given. The decision was rendered as a civil appeal in the appellate jurisdiction, identified as Civil Appeal No. 377 of 1957. The appeal challenged the judgment and decree dated 24 September 1954 issued by the Bombay High Court in First Appeal No. 355 of 1950. Counsel for the appellant consisted of R. Ganapathy Iyer, K. L. Hathi and D. Gupta, while B. D. Sharma represented the respondent. The judgment was delivered on 3 February 1961 by Justice Kapur. The matter before the Court was an appeal against the order of the High Court of Judicature at Bombay. In the original suit, the respondent had been the plaintiff and the appellant had been the defendant. The factual background presented to the Court showed that the respondent occupied un‑alienated land identified as Survey No. 145, Hissa No. 2 of Mahad in the district of Colaba. On 1 November 1941, the respondent applied to the Collector for permission to erect a temporary shed on the land for a period of one year. The Collector granted the permission on 9 January 1942. Subsequently, the respondent sought an extension of the permission for an additional two years. Upon inquiry, the authorities discovered that the respondent had erected permanent structures on the land without maintaining the required open space of twenty feet between the building and the road. When instructed to keep that space open, the respondent refused, leading to the dismissal of the application dated 9 September 1942. On 28 March 1943, the respondent submitted another application stating that he was prepared to remove the portion of the building that encroached within the twenty‑foot setback. The Collector accepted this offer and directed the respondent to demolish that portion of the structure. While correspondence continued between the respondent and the Collector, the respondent proceeded to construct several additional structures that the Collector was unaware of. In March 1947, the Collector instructed the respondent to cease any further construction.

On 21 April 1947, the respondent filed another application with the Collector, claiming that he had begun constructing a new building and requesting permission to complete it. The Collector then conducted an inquiry and discovered that numerous buildings had been erected deliberately without any permission. The Collector sought approval from the Government to take further action, and on 23 September 1947 the Government granted the requisite sanction. Acting on that sanction, the Collector ordered the Mamlatdar to evict the respondent. Accordingly, on 19 October 1947, the Mamlatdar served a notice on the respondent demanding his eviction. The respondent challenged this action before the Bombay Revenue Tribunal, but his appeal was dismissed on 2 April 1941. After the dismissal, another notice was served on the respondent requiring him to remove the unauthorised structures. The respondent failed to comply with this notice, leading to his eviction from the land and the demolition of some of the buildings. The narrative records that in August, the respondent continued to be involved in subsequent proceedings, the details of which are set out in later parts of the judgment.

In 1948 the respondent lodged a petition before the High Court, secured a stay of the Government’s eviction order, and, acting on that stay, regained possession of the land from which he had previously been removed. After obtaining possession, the respondent did not pursue further prosecution of his petition. Consequently, notwithstanding his disregard for the directives issued by the revenue authorities, the respondent succeeded in re‑entering the land that had been lawfully evicted from him.

On 23 November 1948 the respondent instituted a civil suit seeking a declaration that the Government’s order directing his eviction was illegal and void, an injunction restraining the Government from executing any action based on that order, and damages of Rs 7,000 to compensate for the portion of the building that the revenue authorities had demolished. The Civil Judge examined the facts and found that the structures erected by the respondent were unauthorized because the respondent had failed to obtain permission from the Collector. However, the Judge concluded that the Collector possessed no authority under section 66 of the Bombay Land Revenue Code (hereinafter “the Code”) to demolish the building. Accordingly, the Judge declared the eviction order issued by the Government and the Collector to be ultra vires and inoperative, granted an injunction against the appellant, and awarded the respondent the sum of Rs 7,000 as damages for the demolition of the structures.

The appellant appealed this judgment to the High Court. The High Court affirmed that the orders directing the removal of the structures were ultra vires of section 66 of the Code, and therefore it confirmed both the injunction and the decree awarding damages. The High Court further held that, while the order of eviction itself was legal and within the powers granted by the Code, the eviction did not cause the land or the buildings to vest in the Government. The Court explained that the occupant remained the owner of both the land and the structures, and that the sole legal effect of the eviction was to deprive the occupant of possession of the land. In the Court’s own words, “The legal consequences of eviction therefore will be to deprive the occupant of his possession of the land but not of his ownership or proprietary rights, which will continue to vest in him. As a corollary it must follow that the building erected by the occupant on the land will also continue to belong to him. We are also of the opinion that the power given to the Collector to evict the occupant does not include the power to remove a building erected by him.”

Against this judgment and decree, the appellant obtained a certificate of fitness from the High Court and brought the present appeal before this Court. The parties did not dispute the validity of the eviction order itself. The matters that were argued before this Court concerned the legal consequences of that eviction. Specifically, the issues were whether the respondent was required to remove the building after eviction, whether, in the event of his failure to do so, the appellant could lawfully demolish the building, and whether the appellant was liable for damages for the portion of the building that had already been demolished.

The question whether the appellant must pay damages for the part of the building that it had already demolished depended on the way certain provisions of the Code were interpreted. The Collector, having obtained permission from the Government, issued an order on 10 October 1947 directing the removal of the structures that the respondent had erected without authority. The Collector acted on the basis of section 66 of the Code. Section 45 of the Code states that all land, whether used for agricultural purposes or for any other purpose and wherever it is situated, is liable to the payment of land revenue to the Government. Section 56 provides that failure to pay land revenue makes the occupancy liable to forfeiture. Sections 65 and 66 of the Code read as follows: “Section 65. An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents or other legal representatives to erect farm buildings, construct wells or tanks or make any other improvements thereon for the better cultivation of the land or its more convenient use for the purpose aforesaid. But if any occupant wishes to use his holding or any part thereof for any other purpose, the Collector’s permission shall in the first place be applied for by the occupant.” “Section 66. If any such land be so used without the permission of the Collector being first obtained or before the expiration of the period prescribed by section 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 shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of section 48 for the period during which the said land has been so used, such fine as the Collector may direct subject to the general orders of the State Government. Any tenant or any occupant or any other person holding under or through an occupant who shall, without the occupant’s consent, use any such 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.”

The Court found that the respondent had erected several structures without first obtaining the Collector’s permission and therefore was liable to be evicted. Consequently, the order issued by the Collector directing the eviction of the respondent was held to be legal and within the Collector’s statutory powers. Under section 65, an occupant of land held for agricultural purposes may construct farm buildings, wells, tanks or other improvements that aid cultivation or make the land more conveniently usable for agriculture, but the occupant may not change the use of the land to non‑agricultural purposes without the permission of the revenue authorities. This provision demonstrates that any use of the land that is not connected with agriculture is unlawful, and such unlawful use subjects the occupant to the penalties prescribed in section 66.

In applying section 66, the Court observed that any alteration of the permitted use of land empowers the revenue authorities to evict the occupant summarily, and that such eviction carries additional legal consequences. Accordingly, when sections 65 and 66 are interpreted together, an occupant is entitled solely to the use and occupation of unalienated land within the limits expressly prescribed; once the occupant is removed under the authority of section 66, he loses any right to continue using or occupying the land. The Court then referred to section 202 of the Code, which sets out the procedural steps for evicting a person who is unlawfully in possession of land. Section 202 provides that, whenever any enactment authorises the Collector to evict a person wrongfully in possession, the eviction must be carried out by serving a notice on the occupant(s) requiring them, within a reasonable time after receipt of the notice, to vacate the land. The Court explained that this provision demonstrates that eviction necessarily involves the vacation of the land, and that “vacation” does not merely allow the unauthorized work carried out on the land to remain. Rather, only the individual responsible for the unlawful act is to be removed. The Court emphasized that the terms “eviction” and “vacation” cannot be understood as a simple physical removal of the occupant; this meaning follows from the nature of the right that the respondent possessed, which was confined to agricultural use of the land granted by the Government. When the respondent is ordered to vacate, his rights to the land terminate. For a true vacation, any unauthorized structures erected on the land must also be removed, because without demolition the land cannot be returned to its intended agricultural purpose. The Court held that it was unnecessary to decide whether the occupant also loses rights to the materials of the removed superstructure. However, it would contradict the proper interpretation of “eviction” and “vacation” if, after eviction, the structures built by the occupant were allowed to remain, thereby forcing the Government to restore the land to its original purpose only by paying damages. In the Court’s view, a separate statutory power to remove all unauthorized constructions is not required; the authority to demolish such structures is incidental and ancillary to the power to evict and to achieve a complete vacation of the land. This conclusion reflects the Court’s understanding of the statutory scheme governing occupancy, alteration of use, and the comprehensive effect of eviction under the Code.

In this case the Court examined the nature of the occupier’s right and the restrictions imposed by the relevant provisions of the Code. Sections 40 and 41 reserve the right to certain trees on unalienated land to the State. Sections 65 and 66, together with sections 68 and 69, state that an occupier is entitled to use and occupy the land only for the period prescribed by his tenure. These provisions indicate that the real effect of an eviction is the physical removal of the occupier from the land, which necessarily includes the demolition of any unauthorised superstructures erected there.

The High Court had placed emphasis on the difference in wording between sections 61 and 66 of the Code and on the amendment made to section 61 in 1919 when the words “or to summary removal” were inserted. The amended section 61 now reads: “The person unauthorisedly 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.” From the insertion of those words it was argued that the amendment was intended to give the Collector explicit authority to remove any building or other construction placed on the land by an unauthorised occupier, and that the purpose of the amendment was precisely that. The Court held that it was unnecessary to examine why that specific power had been granted to the Collector.

The question before the Court was the meaning of the term “eviction” as used in section 66. The Court concluded that, in the context of section 66, eviction means that the land must be restored to its original condition so that it can be used for the purpose for which it was originally granted to the occupier. Accordingly, the Court allowed the appeal, set aside the decree of the High Court which had affirmed the trial‑court decision, and ordered that the appellant bear costs throughout the proceedings. The appeal was therefore allowed.