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Petitioner: SHAM SUDDIN VS Respondent: PAKISTAN
P L D 1960 (W
P L D 1960 (W. P.) Karachi 935
Before Waheeduddin Ahmad J
SHAM SUDDIN‑Appellant
versus
PAKISTAN AND ANOTHER‑Respondents
Second Appeal No. 104 of 1959, decided on 6th July, 1960.
(a) Bombay Land Revenue Code (V of 1879), Ss. 48, 61, 66, 79‑A & 202‑Collector not entitled to order eviction from unalienated land unless occupant is in wrongful possession‑Land granted for building purposes and being used as such‑Mere violation of terms of `lease' (e.g. construction of shops without permission of Collector) Cannot mean that land is not being used for that purpose‑Pro visions of S. 48 not applicable.
The power to evict any person from an unalienated land, under section 202 of the Bombay Land Revenue Code, 1879 can be exercised only in those cases where an occupant is found to be in wrongful possession within the provisions of sections 48, 61, 66 and 79‑A.
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. This section is to be read along with sections 65 and 48 of the Code ; and all these sections are controlled by section 202 of the Code.
Section 48 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 VIII 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. For instance 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. From a perusal of the Bombay Land Revenue Rules, 1921, (also in Force in Karachi), it will appear that under Rules 76 to 79 the use of land for manufacture of salt, for removal of earth and stone and excavation is prohibited under certain conditions. The power vested in the Collector under section 48 (4) is only confined to similar other purposes and is not of such a general nature which authorises him to put an embargo and impose any conditions which he likes.
Where the land is granted for building purposes and it is being used for that purpose, only it cannot be said that merely because the terms of the Sanad are violated that the land in dispute is used for any purpose other than the building purposes.
In such circumstances, the provisions of section 48 are not applicable.
(b) Bombay Land Revenue Code (V of 1879), Ss. 61, 65, 66, 79‑A & 202‑Lease of land granted by Government liable to be forfeited for breach of terms‑Possession of occupant on forfeiture of lease becomes wrongful, entailing eviction.
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 Bombay Land Revenue 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 for feiture 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 con sidered to be in wrongful possession of the land.
Secretary of State v. Chimanlal A I R 1942 Bom. 161 and Dhanji Jairam Mali v. Secretary of State A I K 1921 Bom. 381161.
V. P. Shaikh for Appellant.
S. A. Nusrat for Respondent No. 1.
E. V. Castellino for Respondent No. 2.
Dates of hearing : 5th and 24th May, 1960.
JUDGMENT
This is a second appeal from the judgment of Mr. Hamid Ali M. Memon, Additional District Judge, Karachi, in Civil Appeal No. 61 of 1959 dismissing the appeal against the judgment of Mr. Mehdi Ali Siddiqui in Suit No. 411 of 1957.
Briefly the facts leading to this appeal are that appellant Shamsuddin is in occupation of shop as tenant of respondent No. 2 on Plot No. 197, Garden East, Karachi. The plot in question is Government land and is occupied by respondent No. 2 under a Sanad in form G. R. H. 3/1 issued under section 133 of the Bombay Land Revenue Code. In February 1951, the City Deputy Collector called upon respondent No. 2 to demolish the four shops constructed by him near the compound wall and threatened him to forfeit the Sanad in case the notice was not complied with. Again on 15th October 1953, the City Deputy Collector called upon respondent No. 2 to demolish the construction. Respondent No. 2 thereupon applied to the Collector for obtaining police help for removing the said construction, but it was turned down by the Collector on 18th April 1957. Thereupon he filed an application for ejectment under the Rent Control Act which was ultimately withdrawn respondent No. 2, however, managed to obtain an order from the City Deputy Collector on 4th of July 1957 directing the Resident Magistrate to be present on the spot at the time of the demolition of the shop in occupa tion of the appellant by respondent No. 2. This led the appellant to approach the Collector, who on 7th July 1957, allowed him three months' time to remove the structure of the shop. On 31st July 1957, the appellant gave a notice under section 80, C. P. C. and challenged the order of the City Deputy Collector dated 4th July 1957. On 12th October 1957, Suit No. 411 of 1957 was filed for a declaration that the directions and orders given by the Collector of Karachi to the Resident Magistrate vide his letter dated 14th July 1957 is illegal and inoperative and was beyond his function and jurisdiction and prayed for a permanent injunction that the respondents may be restrained from demolishing the construction on the plot in question on Britto Road, Karachi. Mr. Mehdi Ali Siddiqui by judgment dated 30th April 1959, dismissed the suit on the ground that the Collector had ample power under sections 65 and 66 of the Land Revenue Code to order the demolition of the building and that the appellant was estopped by his conduct to challenge the order of the Collector for three months on 7th of July 1957. The learned Additional District Judge also upheld the view of the learned Subordinate Judge and observed
" It is laid down in section 66 that if the land was used without the permission of the Collector granted under 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. The said section authorised the Collector, therefore, to evict the occupant and his tenant from the land if the land had been put to any use other than mentioned in section 65 without the permission obtained from the plaintiff‑the order of the Collector, therefore, which is sought by the plaintiff to be declared illegal, is clearly in the exercise of his powers granted by section 66, and as such is valid and within jurisdiction of
the Collector," and dismissed the appeal.
These findings are challenged in this appeal inter alia on the grounds that the land in question was granted to respondent No. 2 for building purposes and that although under the terms of the Sanad respondent No. 2 is not entitled to raise any construc tion on the outer boundary of the plot facing the road without the permission of the Collector, the Collector or any person authorised under the Bombay Land Revenue Code is not com petent to issue any order of eviction from the plot in question unless and until the lease in favour of respondent No. 2 is forfeited and that respondent No. 2 is not entitled to evict the appellant with the aid of respondent No. 1 without recourse to the provisions of the Rent Restriction Act.
At the time of hearing of the appeal the learned Counsel for respondent No. 1 conceded that the impugned order is not covered by sections 65 and 66 of the Bombay Land Revenue Code but is one under section 48 of the Bombay Land Revenue Code. He sought permission to lead evidence to prove that the plot in dispute was subject to the payment of land revenue and the provisions of section 48 of the Bombay Land Revenue Code applies to the facts of the case. By an order dated 5th May 1960 I granted permission to respondent No. 1 to lead additional evidence on this question. Mr. Muhammad Ali Khan, City Surveyor in the City Deputy Collector's office, was examined as Exh. 5, who stated that after the survey of 1924, the plot in dispute was granted for agricultural purposes under an agricul tural lease in form Exh. 5/1. Thereafter on the application of the lessee to convert the use of the land a new lease was issued on the usual terms contained in form Exh. 5/2. This type of lease is called H‑3/1 form. He further stated that on the con version of the use of land the assessment was also revised, and admitted
"Formerly it was assessed as an agricultural land on the conversion of the land for building purposes it was assessed as non‑agricultural land. The assessment in Exh. 4 is on the basis of non‑agricultural assessment and is not based or charged on agricultural land."
He stated in unequivocal terms that no portion of the land is assessed for agricultural purposes. In cross‑examination he stated that under Clause k7) of the lease form Exh. 5/2 in case the tenant commits default the lease is liable to be forfeited, and admitted
"No forfeiture has been made in respect of the land in dispute. The City Deputy Collector issued a notice to the lessee. A copy of the notice is produced and marked Exh. 5/3. Several notices have been issued but the lease has not been forfeited."
To a question put by the Court he stated.
The land was converted in 1938 for non‑agricultural purposes."
The short question for determination in this case is whether j the Collector was competent to issue the order dated 4th July 1957 to the Resident Magistrate, reproduced below
"The lessee of Plot No. 197 G. R. E. has been directed to remove the unauthorised construction from his plot. He has stated that one Shamsuddin Husaini is resisting and obstructing the demolition. You are therefore required to be present at the spot so that there may not be any breach of peace at the time of 6emolition. The demolition work will be done by the lessee himself."
It is an admitted position and established beyond any con troversy that the shop in dispute, in occupation of the appellant, along with three other shops was constructed in 1948 by respondent No. 2. The appellant purchased the running concern and the shop in dispute from one Wali Muhammad Khamisa and was recognised as tenant by respondent No. 2. The shop in dispute is situated on the outer boundary facing the road. It may be stated that under clause (4) of Exh. 5/2, the terms on which the plot in question is held by respondent No. 2, it is provided that where the boundary of a plot is a road, no building, or portion of a building, other than compound walls or entrance gates, shall be erected within fifteen feet of such boundary. Clause 7 of the lease provides
"If you will at any time fail to observe or fulfil any of the conditions of this grant above set out, you shall forfeit to Government all your rights under this grant, and your right and title to any buildings, materials, or crops or pro duce on the said piece of land at the time of such failure, and it shall thereupon be lawful for the Collector to enter upon and take possession of the said piece of land, with any such buildings, materials crops or produce on the same, and the said piece of land with such buildings, materials, crops and produce shall, from the time of such failure, vest in the Karachi Administration absolutely, free and discharged from all encumbrances of any kind whatsoever created on the said piece of land, buildings, materials, crops and produce by you."
Thus it is obvious that respondent No. 2 violated the terms of his lease and the Government of Pakistan was entitled to forfeit the lease for that reason. It may be noted that the grant to respondent No. 2 is a perpetual lease subject to revision of right of assessment after every 20 years. The learned counsel for the respondent No. 1 admitted and the witness Muhammad Ali Khan (Exh. 5) also admitted that the Government has not forfeited the lease although respondent No. 2 has violated its terms.
I will now examine the powers of the Government to evict occupants of land burdened with land revenue. As far as the provisions of the Bombay Land Revenue Code are concerned, it is an undisputed mention that the Government can pass any order for the eviction of a person who is wrongfully in possession of the land by giving him notice as prescribed by section 20 of the Bombay Land Revenue Code. Section 202 is in the n following terms
" Collector how to proceed in order to evict any person wrongfully in possession of land. Whenever it is provided by this, or by any other Act for the time being in force, that the Collector may or shall evict any person wrongfully in possession of land, such eviction shall be made in the following manner, viz. :‑
by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land, and,
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…
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