P L D 1960 (W (PLP)

if such notice is not obeyed by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and, if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause, and that such resistance and obstruction still continue, may, without prejudice to any proceedings to which such person may be liable under any law for the time being in force for the punish ment of such resistance or obstruction, issue a warrant for the arrest of the said person, and on his appearance commit him to close custody in the office of the Collector or of any Mamlatdar or Mahaklari, or send him with a warrant, in the form of Schedule I, for imprisonment in the civil jail of the district for such period not exceeding thirty days, as may be necessary to prevent the continuance of such obstruction or resistance." This power can be exercised only in those cases where an occu pant is found to be in wrongful possession of a land within the provisions of sections 48, 61, 66 and 79‑A of the Bombay Land Revenue Code. The view of the subordinate Courts is that the Collector was entitled to issue the impugned order under g section 66 of the Bombay Land Revenue Code. It appears to me that section 66 of the Bombay Land Revenue Code comes into operation only if a person is granted land for a specific purpose and he uses it for some other purpose. Section 66 is to be read along with sections 65 and 48 of the Bombay Land Revenue Code. The learned counsel for the respondents realised this difficulty and had to fall back on section 48 of the Code to justify the impugned order. Section 48 of the Bombay Land Revenue Code reads as under " Manner of assessment and alteration of assessment. Pro hibition of use of land for certain purposes :‑ (1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land‑ (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building. (2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, notwithstanding that the term for which such assessment may have 'been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribed in this behalf. (3) Where land held free of assessment on condition of being used for any purposes is used at any time for any other . purpose, it shall be liable to assessment. (4) The Collector or a Survey officer may, subject to any rules made in this behalf under section 214, prohibit the use for certain purposes of any unalienated and liable to the pay ment of land revenue, and may summarily evict any holder who uses or attempts to use the same for any such prohibited purpose." This provision of law is of a general nature and empowers the Government to levy land revenue with reference to the use of the land‑ (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building. It further empowers the Government to authorise the Collector or other officer to revise assessment on lands of which the appropriation was altered without going through cumbersome procedure prescribed under Chapter VI1I‑ of the Code. It also authorises the Collector under subsection (4) to prohibit the use for certain purposes of unalienated land liable to the payment of land revenue and to summarily evict any holder who uses or attempts to use the same for any such prohibited purposes. Thus the Collector's power to prohibit the use of land for certain purposes is subject to the rules made under section 214 of the Bombay Land Revenue Code. A perusal of the Bombay Land Revenue Rules of 1921, which are also in force in Karachi, it will appear that under Rules 76 to 79 the use of land for manu facture of salt, for removal of earth and stone and excavation is prohibited under certain conditions. It seems to me that the Dower vested in the Collector under section 48 (4) is only confined l to similar other purposes and is not of such a general nature which authorises him to put an embargo and impose any con ditions which he likes. The scheme of the Act is against the alleged general power and the other provision of the Bombay Land Revenue Code leaves no doubt about it. Now the evidence on the record does not show that the appellant is using the land for any of the prohibited purposes contemplated under section 48 (4) of the Code. On the other hand ft shows that the land in dispute was granted to respondent No. 2 for building purposes, that respondent No. 2 had constructed certain shops without the permission of the Collector in violation of the terms of the Sanad and the Revenue Authorities are anxious to get the unauthorised construction demolished. It appears to me that in these circumstances the provisions of section 48 (4) or for the matter of that, the provision of section 48 as a whole cannot be applied to the facts of the case. There can be no two opinions on the question that the land in dispute was granted for building purposes and it is being used for that purpose. Merely because the terms of the Sanad are violated it cannot be said that the land in dispute is used for any purpose other than the building purposes. As a matter of fact the Collector did not issue any order in this case under section 48 (4) and it is difficult to under stand how the impugned order can be treated to have been issued under it. I have already observed that the power of eviction vested in the Government under sections 48, 61, 66 and 79‑A is controlled by section 202 of the Bombay Land Revenue Code. The Government is not entitled to evict any person from an unalienated land unless he is found to be in its wrongful possession. The concurrent finding of both the Courts below is that the appellant being a tenant of respondent No. 2 cannot be considered to be in wrong ful possession of the shop in dispute. Mr. Mehdi Ali Siddiqui's finding on this point is as under :‑ "As very ably argued by Mr. Castellino for defendant No. 2, the above two sections do not apply to the present case ; neither defendant No. 2 nor the plaintiff can be said to be in unauthorised occupation. The defendant No. 2, is an admitted lessee of defendant No.

1. All that he has done is to have transgressed the terms of the grant. Defendant No. 2, it is on record, has built himself a Bungalow and has also built the chops : one of which is occupied by the plaintiff. Granting for a moment that the plaintiff came in as an accepted tenant of the defendant No. 2, the fact of exceeding the terms of the grant are clearly established, and will have their legal effects." Later on the learned Subordinate Judge observed :‑ "The proper sections of the Land Revenue Code applicable to this case will be sections 65 and 66 of the Land Revenue Code are clearly applicable in this particular case. Section 65 provides that if any occupant wishes to use his holding for any non‑agricultural purpose, the Collector's permission shall be applied for, who may grant or refuse the permission. Section 66 provides that if any such land be so used without the permission of the Collector being first obtained, the occupant or any tenant or any other person holding under or through the original lessee shall be liable to be summarily ejected by the Collector from the land in use. The same conclusion has been reached by reference to the terms of the lease as shown by the proforma produced here. So on the basis of these legal postulates, I came to the conclusion that the order of the Collector was perfectly valid and within his jurisdiction." Similarly Mr. Hamid Ali M. Memon observed :‑ "It is conceded by the counsel for the respondents that the defendant No. 2 and the plaintiff could not be said to be in unauthorised possession. It is an admitted position that the defendant No. 2 by building hip bunglow and the shops had exceeded the terms of the rant, as such he was liable to the penalties on that account. The sections of the Land Revenue Code which had application in the present case are sections 65 and 66." The question therefore arises whether sections 65 and 66 of the Bombay Land Revenue Code apply to the facts of this case. Before dealing with this question I would like to observe that the learned Additional District Judges view that section 202 of the Code does not apply to the cases falling under sections 65 and 66 is not well founded. The learned Judge failed to notice that under the Code the possession of the occupant under certain circumstances can become wrongful and it is only in those cases where the possession has become wrongful that the Government is entitled to evict a person under section 202 of the Code. There is no escape from section 202 and the procedure laid down under it must be followed before an occupant of the land is evicted. I have already dealt with the provisions of section 48 of the Bombay Land Revenue Code, and to my opinion as the land is used for building purposes it cannot be said that the appellant or for the matter of that respondent No. 2 is using the land in question for any other purpose than for building purposes. Now section 65 of the Code lays down that if any occupant wishes to use his holding or any part thereof for any other purpose the Collector's permission shall in the first instance be applied for. Then it provides the procedure for obtaining the permission and lays down that if the Collector fails to inform of his decision within three months, the permission shall be deemed to have been granted. Section 66 is corollary to section 65, which provides that if any such land is used without the permission of the Collector being first obtained or before the expiry of the period prescribed by section 65, the occupants or any tenants or other person holding under or through him shall be liable to be summarily evicted by the Collector from the land so used. This makes it perfectly clear that the power vested under section 48 (4) is contemplated under entirely different set of circumstances. If the land is used for any other purpose than for which it is used, sections 65 and 66 of the Code will be applicable. But a perusal of Exh. 5/2 shows that the lease in this case was granted under section 133 of the Code under which every holder of a building site is entitled to obtain a Sanad in the form of Schedule H. So it is not a case where agricultural lands are required to be used for any other purposes and it is clear that the provision of section 65 is not applicable to the facts of this case and as such no action can be taken under section 66 of the Code. It, however, appears to me that the Government is not without remedy in cases where breach of any condition and terms of the lease takes place. Under section 68 of the Code an occupant is entitled to the use and occupation of his land amongst others as long as he fulfils any terms annexed to the lease. If the lease is liable to be forfeited for breach of its terms the possession of the occupant on forfeiture will become wrongful and the Government will be entitled to evict him under sections 61 and 79‑A of the Code. Thus the prerequisite for the exercise of such power is to forfeit the lease and it is only thereafter that an occupant can be considered to be in wrongful possession of the land. I am fortified in my view by the observations of Divatia, J. reported in Secretary of State v. Chimanlal (A I R 1942 Bom. 161). The learned Judge at page 165 observed :‑ "It is clear to my mind that Government can pass an order for eviction of a person who is wrongfully in possession of land by giving him the notice as prescribed in this section. That notice in fact amounts to a decision or order of the Government to evict the person who is in such wrongful possession. There is no provision in the Land Revenue Code that before the notice under section 202 is given, the Government should actually pass an order and communicate that order to the party concerned before giving such notice. It is open to the Govern ment to pass an order in the form of a notice, and as provided by this section to serve it on the party concerned, and if that is done, the Government must be deemed to have complied with the provisions of the Land Revenue Code. It is true that the Notice, Exh. 28, does not mention that it is given under section 202, Land Revenue Code, but in my opinion, it is quite clear on its wording that it could not have been given under any other provision of law except section

202. The wording is very much similar to the provisions of that section. There is no doubt that the Government possess larger powers than those of a private landlord. A private landlord has no power to summarily evict a tenant who is holding over. The Government have however the power to do so under various sections of the Land Revenue Code, such as Sections 61, 66 and 79‑A, Land Revenue Code, and at the termination of the period for which a particular land might have been granted by the Government to any person, it is open to the Government to give him a notice to vacate it on the expiry of the period, and if the holder still remains in possession after its expiry, he must be deemed to be holding the land in wrongful possession. That being so, the Government would be entitled to give a notice as required by section 202 Land Revenue Code." The learned Judge at page 166 further observed :‑ "If, therefore, the plaintiffs had remained on this land after they had ceased to be entitled to do so under any of the provi sions of this Act, then clearly the Government were entitled to adopt the remedy of summary eviction under this section. The next question is whether the plaintiff's right can be said to have ceased to exist at the time when this notice was given by the Government. According to the Government, the plaintiffs were occupying as lessees and on the termination of the lease in March 1930, their right to occupy the land had ceased to exist." The learned Judge finally summarised the legal position at page 166 :‑ "The combined effect of sections 61, 68 and 202 therefore is that the Government have the power before as well as after the enactment of the Land Revenue Code to grant lands to occupants on certain terms and conditions, that if a grant was made for a certain period, the Government would be entitled to resume the land at the expiration of that period, that any occupation of the land, thereafter would be a wrongful occupa tion for which the holder would be liable to summary eviction, and if the Government decide to evict such person they can do so by giving him a notice under section 202." The difficulty in the instant case is that although the Govern ment is entitled to forfeit the lease, they have so far not exercised their right. Neither respondent No, 2 nor the appellant can be held to be in wrongful possession of the plot in dispute and are entitled to remain in its occupation. In these circumstances, respondent No. 1 are not entitled to evict the occupants in exercise of the power vested in them under section 202, Bombay Land Revenue Code. It appears to me that respondent No. 1 must create the necessary condition for the exercise of the power of summary eviction and unless that is done they have no right to evict any occupant of the land. This view is supported by the observations made by Crump, J. in Dhanji Jairam Mali v. Secretary of State (A I R 1921 Bom. 381). The learned Judge observed "In the present case as the conditions necessary for the exercise of the power of summary eviction conferred by section 79‑A did not in fact exist the District Deputy Collector cannot be held to have acted in his official capacity." After careful consideration of the evidence on the record I am satisfied that appellant and respondent No. 2 are not in wrongful possession of the land in dispute. In these circumstances it is not possible for me to hold that the impugned order is one of those orders which falls within the four corners of section 202 of the Bombay Land Revenue Code. In my opinion both the Courts below were not justified in dismissing the appellant's claim. The appellant is entitled to a declaration that the impugned order is illegal, ultra vires and inoperative and cannot be given effect to. In the original suit the appellant has also claimed relief of permanent injunction against respondent No. 1 to prevent his eviction from the property in dispute. In my opinion this relief is too wide. He is certainly entitled to a permanent injunction against respondent No. 1 for not evicting him under the impugned order but if respondent No. 1 forfeits the lease and thereafter starts eviction proceedings, they will be fully justified to do so under the provisions of the Bombay Land Revenue Code. Accordingly I will only grant a declaration to the appellant that the impugned order is illegal, ultra vires and inoperative and that respondent No. 1 is not entitled to evict respondent No. 2 and the appellant on the basis of the impugned order. For the reasons given above the appeal is allowed with; ;costs throughout. K. M. A. Appeal allowed.