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IN THE HIGH COURT OF BOMBAY
M.S.Jawalkar, J.
Shamrao Somaji - Appellant
Versus
State of Maharashtra - Respondent
Second Appeal No. 680/2006
Decided On : 25-09-2023
Maharashtra Land Revenue Code - Land Occupation and Eviction - Sec. 38, Sec. 53 - The court discussed the provisions of Sec. 53 regarding summary eviction of unauthorized occupants and Sec. 38 concerning the power of the Collector to grant leases. It emphasized that the Collector must provide notice and an opportunity to be heard before eviction, which was not followed in this case. The court concluded that the plaintiffs were entitled to protection from eviction unless due process was followed.
Fact of the Case:
The plaintiffs occupied land for brick manufacturing and sought to prevent the government from auctioning the land, claiming they had been granted licenses and had been in possession for decades. The government contended that the plaintiffs were unauthorized occupants and initiated auction proceedings without proper notice.
Finding of the Court:
The court found that the lower courts erred in concluding that the plaintiffs had no rights to the land. It highlighted the necessity of following due process under Sec. 53 before eviction, which was not adhered to by the government.
Issues: 1. Whether the findings of the lower courts regarding the plaintiffs' rights to the land were justified under Sec. 53 of the Maharashtra Land Revenue Code. 2. Whether the Tahsildar could auction the land without following the due process outlined in Sec. 63.
Ratio Decidendi: The court established that even in the absence of a formal lease, the plaintiffs' long-term occupation and payment of premiums indicated a right to remain on the land. The government must follow the procedural requirements of Sec. 53 before evicting any occupant.
Final Decision: The appeal was partly allowed, the judgments of the lower courts were quashed, and it was declared that the plaintiffs were entitled to protection from eviction unless due process was followed by the government.
JUDGMENT/ORDER
1. Heard learned Counsel for the appellant as well as learned Assistant Government Pleader.
2. Second Appeal came to be admitted on 14/02/2007, on following substantial question of law :
"(i) In view of the provisions of Sec. 53 of the Maharashtra Land Revenue Code, 1956 whether the finding recorded by the trial and the appellate Court that the respondent No.1 had proved that the plaintiff has no right to remain on land survey No. 30 and 33 can be justified ?
(ii) Whether the Tahsildar could have published a notice for the auction of the suit without following due provision under Sec. 63 of the Maharashtra Land Revenue Code, 1956?"
3. The case of the plaintiff in brief is as under :
Plaintiffs have occupied Survey No. 30 and 33 at Nimbhora for manufacturing of bricks and for perpetual injunction restraining the defendant to auctioned the said site. The plaintiff alleged that they are bricks and kavelu makers. The plaintiff No. 7 and 38 are registered cooperative societies carrying business of bricks. The society holds 15 Gunthas of land out of Survey No. 33 for the purpose of brick manufacturing. Survey No. 30 and 33 are 'F' Class land and belongs to defendant/Government. The plaintiffs are annually granted licenses by the Revenue Department of Government of Maharashtra and plaintiff used to pay Rs.50.00 per Guntha by way of premium or royalty to the defendant/Government. The plaintiffs are having their bricks kilns on these plots and they are carrying out the business of brick manufacturing. Plaintiffs were also assured that their licenses would be permanent and they would not be evicted from the site. It is contended by the learned Counsel for the applicant/appellant that since last 30 years, the appellants have carrying out their business on the aforesaid plots. The cause of action arose for filing of the suit which defendant refused to renew the license of the plaintiffs on 28/10/1986 and issued proclamation of auction at Amravati.
4. It is contended that the plaintiffs are carrying out their business of manufacturing bricks since 1967. Both the Court concurrently recorded their findings that the appellant/plaintiff failed to prove that respondent/defendant stayed granting license to them and their predecessor entitled/in title to establish brick kilnk on Survey No. 30 and 33 at the village Nimbhora on permanent basis as alleged.
5. The learned Counsel for the appellant drawn my attention to Sec. 53 of the Maharashtra Land Revenue Code, which provides summary eviction of person unauthorisedly occupying land vesting in Government. It is vehemently argued that the plaintiffs were lease holders and their lease cannot be abruptly discontinued by auctioning the suit plot without their being any notice to the plaintiff. As such, auction of the respondent/Government is illegal.
6. As against this, learned Assistant Government Pleader Ms Jaipurkar drawn my attention to Sec. 38 of the Maharashtra Land Revenue Code, wherein, power to grant lease by the Collector is given under Sec. 38 of the Maharashtra Land Revenue Code which reads as under :
Sec. 38 - Power to grant leases - "It shall be lawful for the Collector at any time to lease under grant or contract any unalienated unoccupied land, to any person, for such period, for such purpose and on such conditions as he may, subject to rules made by the State Government in this behalf, determine, and in any such case the land shall, whether a survey settlement has been extended to it or not, be held only for the-period-and for the purpose and subject to the conditions so determined. The grantee shall be called a Government lessee in respect of the land so granted."
7. It is the power of Collector to grant or contract in any annual unoccupied land to any person. There is no dispute about the powers of Collector to grant the lease or enter into contract for leasing out such property.
8. In the present matter, there is no dispute over the fact that appellant is occupying the sai
AI
The court affirmed that the government must provide notice and an opportunity to be heard before evicting unauthorized occupants, as mandated by Sec. 53 of the Maharashtra Land Revenue Code.
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The government can evict encroachments on unoccupied Village Natham land under applicable laws.
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